Stalworth & Stalworth (No 2) - [2024] FedCFamC1F 195

Federal Circuit and
Family Court of Australia (DIVISION 1)

Stalworth & Stalworth (No 2) [2024] FedCFamC1F 195

File number(s):	BRC 14917 of 2020
Judgment of:	HOGAN J
Date of judgment:	28 March 2024
Catchwords:	FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility and for the children to live with him and spend time with the mother – Where the father seeks a moratorium of time – Where the mother seeks sole parental responsibility and for the children live with her and spend no time with the father – Where the children have not spent time with their father for three years – Where the children do not wish to spend time with their father – Where the children have previously run away when made to spend time with the father under previous orders – Where the father contends that is a result of the mother’s parenting – Where the mother has made no real attempts to foster a relationship between the father and the children – Where the risk to the children is too great to require them to move to live with the father
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	A v A (1998) FLC 92-800; [1998] FamCA 25 Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Stalworth & Stalworth [2023] FedCFamC1F 205 Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division:	First Instance
Number of paragraphs:	281
Date of hearing:	20, 21, 22 March 2023; 23 May 2023; 3 July 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Cameron of Counsel
Solicitor for the Applicant:	Melrose Keys Lawyers
Counsel for the Respondent:	Mr Coe of Counsel on 20, 21 & 22 March 2023 Mr Galloway of Counsel on 3 July 2023
Solicitor for the Respondent:	Raiti Lawyers on 20, 21 & 22 March 2023 HCM Legal on 3 July 2023
Respondent:	Litigant in person at Case Management Hearing on 23 May 2023
Counsel for the Independent Children's Lawyer:	Mr McGregor on 20, 21, 22 March 2023; 3 July 2023
Solicitor for the Independent Children's Lawyer:	Ms Perkins, Wallace Perkins Family Law at Case Management Hearing on 23 May 2023

ORDERS

BRC 14917 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STALWORTH Applicant
AND:	MS STALWORTH Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HOGAN J
DATE OF ORDER:	28 March 2024

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All parenting plans and previous parenting orders are discharged.
The children, X born 2011 and Y born 2013 (“the children”) shall live with the mother.
The mother have sole parental responsibility for the children in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
The parents are not required to consult with each other when making decisions whilst the children are in their care about issues that are not major long-term issues.
The children shall spend time and/or communicate with the father in accordance with the children’s views and wishes and at such times as are initiated by the children, either personally or by communication directed to either parent.
In the event either or both children express a wish to spend time with the father, the child/ren and/or the mother shall advise the father, with the mother to thereafter facilitate the changeover into the father’s care at such public venue as nominated by the mother in writing.
In the event that the children wish to communicate with the father, the mother shall do all acts and things necessary to facilitate this request, including by assisting the child or children to communicate with the father and by affording the children appropriate privacy for the duration of the communication.
Pursuant to s 68B of the Family Law Act 1975 (Cth), both parents are restrained and an injunction issue restraining each of them from denigrating the other, discussing adult issues, or family law matters in the presence of the children.
Each parent shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family or acquaintances to the children and/or in the presence of or hearing of the children.
The parents shall keep each other informed of their email address, postal address, residential address and mobile telephone contact number, and advise each other of any change within 24 hours of any such change occurring.
The mother shall ensure that the children are provided with the father’s current email address and, should she be informed of a change to the same, of any changed email address.
The mother shall, within fourteen (14) days of the date of this Order, inform the father of the children’s doctors, health care and other treatment providers, and thereafter, shall keep him informed of the children’s doctors, health care and other treatment providers.
The mother shall inform the father as soon as possible in the event that either of the children suffer from any significant medical condition, hospitalisation, or referral to a specialist for treatment, and shall thereafter provide the name and contact details of all providers of medical treatment.
By this Order Queensland Health and the Department of Health and any doctors, health care and other treatment providers upon whom the children attend (either in-person or via electronic means such as by a telehealth appointment) are hereby authorised to provide each parent with such information and/or documents about the children that they are lawfully able to provide.
The mother shall, within fourteen (14) days of the date of this Order, provide the father with written notice of the schools at which the children currently attend and the contact details for the same.
The mother shall give the father fourteen (14) days’ notice of any intention to remove the children from their school and, within two (2) days of enrolment at a new school, shall advise the father of the name, address, telephone and email contact details for the new school into which the children are enrolled.
The father is at liberty to provide his current contact details to any school at which the children attend.
By this Order, the Department of Education (Queensland) and any school at which the children attend is hereby authorised to discuss and provide information and/or documents relating to the children’s education (including, but not limited to, newsletters, school reports, forms, general correspondence) to both parents.
Each parent and, if engaged, their legal representatives have leave to provide a copy of this Order to:
a.any school or educational institution at which the children attend; and
b.any treating medical practitioner, hospital or allied health care professional upon whom, or at which, the children attend.

c.The Independent Children’s Lawyer has leave to publish the Reasons for Judgment published on 28 March 2023 to the Principal of each of the children’s schools and, in the event that the mother removes the children from their current schools after the discharge of the Independent Children’s Lawyer, the father has liberty to contact the children’s new school and provide them with a copy of the Reasons for Judgment.
d.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the reports prepared by Ms B and Dr K, the Order made on 28 March 2024 and the Reasons for Judgment published in support of the same to any therapist upon whom the parents and/or the children attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services (by whatever name that Department is known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
e.Within twenty-one (21) days of the date of these Orders, the mother cause the children to meet with the Independent Children’s Lawyer to enable the Independent Children's Lawyer to explain these Orders to the children.

AND IT IS FURTHER ORDERED THAT

a.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these orders.
b.The Independent Children’s Lawyer is discharged upon compliance with Order 22 unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
c.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
d.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS NOTED THAT:

a.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
b.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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 Stalworth & Stalworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOGAN J

These proceedings require the determination of those parenting orders which are in the best interests of 12 year old X, who was born 2011, and 10 year old Y, who was born 2013.

The children’s parents started to live together in 2008 and married in 2010. Whilst the father’s position was that he and the mother separated on 30 December 2018 and the mother’s position was that separation happened in late November 2019, both parents accept that they continued to live in the same residence with the children until the father moved out on 13 March 2020.

The mother has not re-partnered. She currently lives with the children in Suburb M; she is completing studies at university (which she is studying on a part-time basis) and works as an educator. Her usual hours are from 9.00 am to 2.30 pm each Tuesday and Friday and from 9.00 am to 5.30 pm each Wednesday and Thursday.

The father, who currently lives in a one bedroom unit at Suburb D, is employed on a full time basis as a manager in the construction industry. I accept the father’s evidence that, if the children are ordered to live with him, he: intends to take annual leave (having accrued nine weeks of the same) to enable him to support them with the change and to ensure that they have time to re-establish their bond with him; would likely use before and after school care (even though his hours are flexible and he is able to work from home on occasion); would obtain accommodation that is appropriate to accommodate the children; and would ensure that the children continue to attend at their current schools.

Whilst the father is in a relationship with Ms O, she lives in Town P with her nine year old son; I accept that the father and Ms O (whom the children have not met) do not currently have any plans to live together.

A brief summary of some relevant matters

I accept that, after the father moved out in about mid-March 2020, the children initially spent time with him on a fortnightly basis; I accept that the mother subsequently reduced the frequency of the children’s time with the father until this occurred only on a monthly basis.

Prior to the Child Court Expert’s involvement as a consequence of interim parenting orders made on 22 March 2023, I accept that the children previously spent time with the father on 27 June 2020 at a park in the mother’s presence and in late, when, I accept, the mother referred to the father as a “bloody paedo” in the child’s presence.

Consequently, it is uncontroversial that the children have not spent any meaningful time with the father since late 2020, at which time X was nine years of age and Y was seven years of age. It is also uncontroversial that the various attempts that have been made to facilitate the children spending time with the father at Contact Centres and to facilitate them participating in therapy intended to support them in the reunification of their relationships with the father have been unsuccessful.

By way of broad overview:

the father contended that the breakdown in the children’s relationships with him and their expressed resistance to having future ongoing relationships with him is the consequence of the mother’s determination to alienate the children from him – he advances that the only way the children will be able to have meaningful relationships with both of their parents is if they move to live primarily with him; but
the mother rejected any suggestion that she has undermined the children’s relationships with the father or that she is unsupportive of them having future, ongoing relationships with him – she contends that the children have reached their own views about the father and that they should be heard and supported in their expressed wishes not to have a relationship with him. Her position, at least ostensibly, was that, if the children said they wanted to spend time with the father, she would facilitate this – irrespective of any concerns she might previously have expressed about the father’s capacity to care safely for the children.

As noted, interim parenting orders were made by consent on the third day of the trial, 22 March 2023 (the March 2023 order) for the Reasons which were then expressed. As outlined by Counsel for the father at that time, what was described as “these overtures” had effectively come from the mother; the hope was that, with the benefit of the mother telling the children that they had her permission to have a relationship with the father and that it was important that they do so and spend time with him and that she wanted that to occur, the children would participate in a process of reunification with the father. Such a course was proposed because the father appreciated that orders requiring the children to move to live with him in the circumstances which had transpired were “the last option”.

The March 2023 order provided that the children live with the mother; that they attend an appointment with a Court Child Expert, who was required, by s 65L of the Family Law Act 1975 (Cth), to assist the parents in relation to compliance with and the carrying out of the orders made that day by explaining the terms of the orders to the children, including that they are orders that were made with the agreement of their parents and enabling the mother, with the assistance of the Court Child Expert to:

explain to the children that they had her permission to spend time with and see their father and to communicate with him; and
indicate to the children that she wanted them to have a relationship with their father and to spend time with him; and
explain to the children that she and the father had agreed that it was important and in their best interests to have a meaningful relationship with their father and know him; and
explain to the children that she believed they would be safe in spending time with their father, that he does not represent a risk to them and that they actually will be safe spending time with him; and
explain to the children that they need to see and spend time with their father.

The March 2023 order also provided that, after this process (which was to occur on 30 March 2023), the father would attend the children’s extracurricular classes on 1 April 2023, 15 April 2023 and 22 April 2023 in the presence of a nominated person (or another person nominated by the Independent Children’s Lawyer) to assist the children to spend time with him and then:

the father and the nominated person would spend time with the children for a few hours at F Venue on 8 April 2023; and then
commencing on 29 April 2023, the children would spend time with the father between 9.00 am and 5.00 pm each Saturday, with changeovers to occur at G Services; and then
commencing on 27 May 2023, the children would spend time with the father each alternate weekend from 9.00 am until 5.00 pm on each of Saturday and Sunday, with changeovers to occur at G Services.

In addition, the March 2023 order contained a Notation that the future listing of the matter would be with a view to the Court then making final parenting orders in terms which would provide for the children to continue to live with their mother and spend time with their father on an increasing basis until they spent time with him from after school Thursday until before school Monday (that is, for four nights in each fortnight) and for half of all school holidays.

The March 2023 order also provided that both parents would engage and attend upon a registered psychologist for the purpose of therapeutic counselling and to assist them to support the children’s relationship with the other parent and to develop strategies to do so.

However, when the matter returned to Court on 23 May 2023 (as a consequence of the Independent Children's Lawyer taking up the liberty to apply which had been included in the March 2023 order), the Court was advised by the Independent Children's Lawyer that, whilst the children had attended upon the Court Child Expert and that the father had attended as required, the time had not proceeded well – to the extent that the children were either running away or were steadfast in their refusal to leave their car and spend time with their father. Given this, the Independent Children’s Lawyer sought, without opposition from the father, that an order be made suspending the operation of the orders referred to in paragraphs 12(b) and (c). The same occurred.

It is in this context, then, that the competing parenting proposals need to be considered.

Some preliminary comments

Before turning to do that however, I make the following general comments about the contents of the Schedule (summarised from aspects of the evidence before the Court and which accompanies and forms part of these Reasons) so that there is no misunderstanding about how the information recounted chronologically therein has been used in the determination of those parenting orders which are now in the children’s best interests.

I record that:

I accept that the information recounted therein was provided by whomever is said to have provided it; and
where indicated in the Schedule, I accept the opinions proffered by those who have proffered them; and
the Schedule does not contain a summary of all of the evidence – whilst it outlines matters I consider to be particularly relevant to the determination of those parenting orders now in the children’s best interests, the absence of any particular evidence from the chronological recitation of events should not be taken to indicate that the same has not also been the subject of consideration in the discharge of the obligation to make parenting orders which are now in the children’s best interests and proper; and

because of my assessment of the mother’s veracity, perceptions and capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of the information conveyed by her: that is, whilst I accept that the mother said what she is recorded as having said, I do not necessarily accept that what was said (and therefore reported) was a truthful or an accurate representation of what had, in fact, happened – although it may, on occasion, have accurately represented the mother’s perception of what was reported to have happened.

I have also deliberately set out some of the communications by the mother to various recipients on various occasions so that those reading this Judgment are able to appreciate fully the context and tone of her communications.

The competing proposals

The father

Whilst the father initially sought that an order be made for the parents to have equal shared parental responsibility for the major long-term issues relating to the children, his final position was that he should be accorded sole parental responsibility for such issues.

The father initially proposed – for example, in an Amended Initiating Application filed 18 June 2021 – that orders be made:

for the children to live with the mother and spend time with him each alternate weekend (from after school Friday until 5.00 pm Sunday), for half of the school holidays and on celebratory or “special” days; and
to enable the children to communicate regularly with the parent with whom they were not then living.

When interviewed by Ms B (a psychologist who authored two family reports, dated 5 January 2022 and 24 February 2023, which form part of the evidence in these proceedings) on 14 October 2021, the father’s position was that, because he did not want them to grow up thinking he was a “monster”, it was in the children’s best interests for orders to be made for them to live with him. He proposed that, after the children moved to live with him, they should spend time with the mother at a Contact Centre for three months (because he was concerned that she may abduct them) and, after the expiration of three months, on an unsupervised basis.

Ms B reported that the father sought that the children live with him because he:

felt that the mother lacked any awareness of the impact her behaviour (such as verbally abusing and denigrating him in front of the children) had on the children; and
believed that the children were being manipulated by the mother and that she would influence them; and
considered the children’s fear of him had been intentionally created by the mother in retaliation for him ending the relationship, making a complaint to police which resulted in her being the respondent to a protection order made in his favour and being in a new relationship, and also that she considered that she was entitled to a more substantial property settlement.

When interviewed by Ms B on 22 December 2022, the father agreed that the Court had exhausted every avenue – other than making orders for the children to live with him, with an associated initial moratorium over their time with the mother – to assist the repair of the children's relationship with him. He was firm in his view that it is important for the children to have him in their lives and to know that they are loved by him. The father also felt that if the children did not move to live primarily with him, they may never want him in their lives.

The father’s final position was that the Court would be persuaded that it was in the children’s best interests for them to move to live with him; that a moratorium of a number of months be imposed over their time with their mother (during the first month of which he would take the children to live with him at the home of the paternal grandparents and home-school them there before returning to live in Brisbane) and that they, ultimately, spend unsupervised time with their mother.

The mother

The mother proposed, amongst other things, that orders be made to ensure that:

she be accorded sole parental responsibility for the major long-term issues relating to the children; and
the children live with her and spend time and communicate with the father in accordance with their wishes and as agreed between their parents; and
the parents be required, by final order, to communicate via their legal representatives.

When interviewed by Ms B on 14 October 2021, the mother’s position was that it was in the children’s best interests for her to be accorded sole parental responsibility for the major long-term issues for them (which she regarded would be "an acknowledgement of what she had always been, a solo mum, for a long time"), for the children to live with her and spend no time and have no communication with the father – because this was in accordance with the children’s wishes.

APPLICABLE PRINCIPLES

In these proceedings, being proceedings for a parenting order in relation to the children, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (”the Act”), make such parenting order as I think proper. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.

The matters to which regard must be had in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests and I have taken all relevant considerations into account in determining those orders which are now in the children’s best interests.

The benefit to the children of a meaningful relationship with both parents

The Act does not define the term “meaningful relationship” or prescribe criteria on which the Court should rely to assess how the children’s parents have, or should have, a meaningful involvement in their lives. However, I accept that the concept of “a meaningful relationship” embodies a relationship that is “important, significant and valuable to the child”.

I also accept, as the Full Court said in McCall & Clark, that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. Given this, the Court should consider and weigh the evidence at trial and consider and determine:

whether there is a benefit to the children (individually and as a collective sibship) in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent; and
if such benefit exists, whether it needs to give way to the requirement to protect the children from physical or psychological harm; and
how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both parents.

I note that, in her first report, Ms B asserted that she could not find any credible evidence to suggest that the children would not benefit from having a relationship with the father. I agree.

Subject to the concerns about the manner in which she has approached the issue of the children’s relationships with their father, including that such approach may have involved refusing to allow the children to individuate from her and form their own opinions about the father, I accept that the children would benefit from the opportunity to have ongoing and meaningful relationships with their mother.

The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

Departmental involvement

There was no history of child protection involvement in these children’s lives prior to the parental separation; since then, though, there have been six Child Concern Reports (CCR) made to the Department of Child Safety, Seniors and Disability Services (the Department), with the first of these having been recorded in early 2020.

The early 2020 CCR followed the receipt by the Department of information alleging that the father was controlling of the finances, manipulative, had a personality disorder and the mother had no money to leave the father and to take the children with her. Having noted the absence of a child protection history for the family and having concluded that neither a pattern of cumulative harm to the children, nor an ongoing pattern of inappropriate parenting behaviour could be established, the Department decided to take no further action.

A second CCR was recorded by the Department after information was provided to it in late 2020. This information alleged that the children were being emotionally and traumatically abused by the mother and that the mother was brainwashing the children. The informant also reported holding concerns about the mother’s emotional and erratic behaviour. Having concluded that there was limited information to indicate significant emotional harm to the children as a direct result of the mother's behaviour, the Department recorded the information as a CCR. It also concluded that there was limited information to suggest that either parent was not willing and able to meet the children's care and protection needs.

A third CCR was recorded by the Department in late 2020 after information alleging that the mother was psychologically abusing the children was received by it in late 2020. The Department considered that there was limited information to support the assertion that the children had suffered significant and detrimental harm whilst in the mother’s care.

A fourth CCR was recorded by the Department in early 2021, after information was received to allege that the father was abusing illicit substances, had haphazardly left dangerous and used drug implements within reach of the children, was routinely masturbating in his son's room (which was said to be a precursor to child sexual abuse) and had psychologically, emotionally and physically abused the children. Having noted that no examples of the father's direct or indirect abuse of the children had been provided and that there was limited information that the children had seen him masturbating or had been subjected to any grooming behaviours, the Department concluded that there was limited information to suggest that the children were at a likely risk of significant harm.

A fifth CCR was recorded after information was received by the Department in mid-2021 to allege that the father had been violent and had demonstrated coercive control: it was alleged that he had shaken X and had masturbated in her room as a precursor to child sexual abuse. Again, the Department concluded that there was limited detail to suggest that the children had suffered, or were at risk of suffering, significant harm perpetrated by the father.

A sixth CCR was recorded in early 2022 after Y reportedly encouraged someone to download explicit material; given that the site said to have been accessed was a site on which pornography could be found, there were concerns that an adult may have provided Y with details to allow access to the material. The Department concluded that there was not enough information to determine that Y had been exposed to pornographic content whilst in the care of either parent, or as a result of parental actions or inactions.

I accept that, save as outlined above, the Department has not been involved in the children’s lives; I also accept that, as at the date of the trial, there was no current Departmental involvement with the children or either parent.

Irrespective of the absence of Departmental involvement, each parent has alleged that the children have been abused by the other and that they remain at risk of being abused by the other.

Whilst the mother’s evidence at trial included that, irrespective of her allegations about the father’s previous conduct, she would facilitate the children spending time with him if they told her that that was what they wanted and that she did not suggest they would be at risk of harm if they spent unsupervised time with him, it is, I consider, appropriate that the allegations made about the father are the subject of consideration.

The allegations against the father

Risk of sexual abuse

The mother asserted that the father routinely masturbated in the children’s bedrooms and that this behaviour exposed them to sexual abuse and should be regarded as a prelude to child sexual abuse.

During her October 2021 interview with Ms B, the mother raised her concerns about the risk of the father sexually abusing the children. She told Ms B that a counsellor from Q Family Services had suggested to her that the father's behaviour in masturbating in a child’s bed was a "prelude to child sexual abuse".

This counsellor was not called as a witness in these proceedings.

The mother’s account of the father’s behaviour, as recounted by Ms B, included that: she and the father had slept in separate beds because X (and later Y) co-slept with her; from when X was two years old, the father slept in X’s bed because she co-slept with the mother (and he later repeated this with Y: that is, he slept in Y’s bed because Y was co-sleeping with the mother); the father would masturbate when he retired to the child’s bedroom – that is, a bedroom which, given the agreed sleeping arrangements just described, was, for all intents and purposes, “his” and which was treated as “his” over an extended period of time – for the night.

I accept Ms B’s recounting that the mother:

did not claim that the children (or either of them) were ever in the bed with the father when he was said to have masturbated; and
did not allege (either in her interview or in her application for a protection order) that the children had ever seen the father masturbate.

From Ms B’s perspective, it appeared that the mother had formed the opinion that the father posed a sexual risk to the children because a counsellor suggested to her that this was the case – although it is also clear that the mother also told Ms B that, on reflection: "I absolutely believe he is capable of being a child sexual offender".

I accept the mother told Ms B that she had been "careful about what I say to the children"; I accept she denied telling the children about the masturbation or about the sex toy that she had found in the father’s possessions; I accept she denied asking either child about being sexually abused by their father. However, I also note that she told Ms B that she had asked X “vague questions”, such as whether she felt "uncomfortable" around her father – I accept she said that X had said "yes" and that she felt most uncomfortable when the father put "his hands down his pants". Insofar as this assertion is concerned, I note that the mother told Ms B that she had known the father to put his hands down his pants ("like it is habit") and that he "would keep his hand there for longer than is necessary" – although she denied that he had been masturbating; she also said that she had not considered this behaviour to be problematic during their relationship: she said she did not consider it to have been a sexual act in any way and that she had not found it particularly concerning until after the parental separation.

I accept, as Ms B noted in her January 2022 report, that there is no evidence that:

the father has displayed any deviant sexual interests or has manifested any risk factors associated with being a sexual offender against children; or that
either child has ever seen the father masturbate; or that
either child has been the victim of any sexual harm perpetrated by the father.

I also note that, in the January 2022 report, Ms B recommended that no weight be attached to the view that the father's use of a sex toy and him masturbating persuaded of the conclusion that he was a risk of sexual offending against the children. I also note that, in the February 2023 report, Ms B noted that, despite the remarks she had made in her first report, the mother continued to assert that she believed that the father was a sexual risk to the children; Ms B also opined that the fact that the mother continued to assert that the father represented a sexual risk to the children was not only nonsense, but also added further weight to the suggestion that she was attempting to mount a case to further block the children from having contact with the father.

Despite telling Ms B that she believed that the father was a sexual risk to the children, the mother’s evidence during her cross-examination included that she did not think that the children would be at risk of suffering any harm if they were to spend time with the father in the future and that, if they asked to spend time with him, she would facilitate this. Given that there can be no doubt that the mother is a highly protective parent, it is inconceivable that she would be prepared to facilitate the children spending any unsupervised time with the father if she truly retained any concerns at all that they might be at risk of being sexually abused by him. Of course, the other possibility is that the mother lied when she said that she would facilitate the children spending time with the father if either of them said they wanted to do this.

I accept Ms B’s assessment that, when seen in the context described above, the father masturbating in a child’s bedroom does not amount to any sort to “prelude” to child sexual offending; I accept that any masturbation by the father occurred in private and absent the children; I accept that there is nothing to suggest that the father intended the children to be present or that they were; I am not remotely persuaded that the father’s possession of a sex toy and lubricant used by adults during sexual activity suggests that he is a risk of sexually abusing his children or any other children.

I consider that there is a complete absence of evidence to suggest that the father poses any sort of sexual risk to either of his children or any other children; I am not persuaded that the children would be at any risk of being sexually abused by their father if they spent unsupervised time with him.

Risk of physical abuse

Whilst the mother has previously alleged that the father physically assaulted the children prior to the parental separation, her evidence when cross-examined included that she did not think that the children would be at any risk of being harmed if they spent time with the father.

On the evidence before me, I am not persuaded that the children would be at risk of being physically harmed by the father if they were to spend time with him.

Risk of emotional abuse

The mother has previously asserted, in essence, that:

the father’s pattern of behaviour (which she described as projection and manipulation) had significantly impacted the children’s mental health and, consequently, each child was at risk of being emotionally destabilised and psychologically harmed if they were required to spend time with him; and
both of the children had exacerbated anxiety issues relating to the father; and
at least Y had previously been put at risk of suffering an exacerbation of his mental health issues because the father had refused her request for him to see a psychologist in relation to her concerns about their son’s behaviours; and
the father had previously displayed a personality disorder and that, by virtue of these traits, the children would be at risk of suffering emotional or psychological harm if they were required to spend time with him.

I accept Ms B’s assessment, as expressed in the January 2022 report, that:

when interviewed, the father did not demonstrate any traits of personality disorder and did not meet criteria for the same; and

there is no evidence of the father ever having suffered from a major mental illness, or ever being diagnosed with a personality disorder.

I also accept Ms B’s reiteration, as expressed in the February 2023 report, that there is no evidence that the father has displayed a disordered personality.

On the evidence before me, I am not persuaded that the children would be at an unacceptable risk of suffering emotional harm if they spent unsupervised time with the father or communicated with him.

Risk associated with drug and alcohol use

Whilst the mother has previously alleged that the children would be at risk of suffering harm if they spent time with the father because he had previously used illicit drugs, had possessed drug paraphernalia and drank alcohol heavily after work on Fridays, her evidence when cross-examined included that she did not think that the children would be at any risk of being harmed if they spent time with the father.

I note, insofar as the mother’s allegation that the father had previously used illicit drugs (namely, steroids) is concerned, that, when he was interviewed by Ms B in October 2021, the father denied having ever used steroids; he agreed, however, that vials of steroids, syringes and alcohol swabs had been in his bag and said that they did not belong to him – he claimed to have found the vials and had planned to dispose of them but had forgotten; he also told Ms B that he had not intended to use the steroids that were in his possession. Whilst Ms B thought the father’s explanation was somewhat difficult to accept, she noted – accurately – that there is no objective evidence that the father has ever been dependent on any illicit substances; she also noted – accurately – that there is no evidence that he has ever been charged with any criminal offence relating to drugs: in fact, he has no criminal history.

I accept that, in the February 2023 report, Ms B reiterated that there is no evidence that the father has, or has ever had, a substance abuse problem. Again, this is an accurate assertion.

Summary of conclusions about risk insofar as the father is concerned

I accept Ms B’s opinion that the children would not be at an unacceptable risk of harm if they lived, or spent time, with the father. Further, on the evidence before me, I am not persuaded that the children would be at risk of being deliberately harmed by the father if they were to spend unsupervised time or live with him. Again, I note the mother’s evidence at trial to the effect that she did not think that the children would be at risk of being harmed by the father if they spent time with him in the future.

I turn now to consider the allegations made about the mother’s conduct and whether continuing to live with her would expose the children to an unacceptable risk of harm.

The allegations against the mother

Risk of emotional abuse

The father asserted that the children are at risk of suffering psychological harm in the mother’s care because:

she had called him a ‘paedophile’ in their presence; and
she had told them that “Daddy has broken up this family and left us destitute”; and
she has had uncontrollable emotional outbursts or episodes of emotional dysregulation in front of them, which outbursts are manifested by increased aggression, rapid speech, hyperventilation and an inability to regulate/self-soothe and which, given what he said was a familial history of mental ill-health, led him to query whether she has a mental health disorder – although he also said she had been clinically diagnosed with a specific disorder (for which she had been prescribed medication), depression and anxiety; and
she had failed to support them having an ongoing relationship with him and had positively undermined the same in a way that had caused them emotional and/or psychological harm; and
her bond with them is unhealthy in that she always follows their wishes and does not say “no” to them; and
she has previously struggled, and continues to struggle, to separate from the children.

As aspects of the mother’s conduct and the impact of the same on the children is the subject of discussion elsewhere in these Reasons, it is, I think, sufficient at this stage simply to note my general acceptance of Ms B’s assessment and opinions:

as expressed in the January 2022 Family Report:
ii.whilst there was some evidence (contained in police records) that the mother had a propensity to become dysregulated, there was insufficient evidence to suggest that the mother met the criteria for either a personality disorder, of which emotional dysregulation may be a trait, or a mental health disorder; and
iii.whilst the mother reported a history of PTSD, depression and anxiety, she (Ms B) thought it more likely than not that her emotional dysregulation was best explained by trauma; and
iv.there was no evidence that the mother's mental illness was presently impacting on her parenting ability; and
v.whilst the mother’s mental illness was not assessed as being a significant risk factor vis-à-vis her parenting of the children, her history of dysregulation was a potential risk factor – she considered the mother to be predisposed to suffering further episodes of this type and consequently recommended that she engage in therapy to help her to develop appropriate strategies.
as expressed in the February 2023 Family Report:
vii.there was evidence that the mother had traits within the Cluster B domain (narcissism, sudden affective shifts and emotional instability – albeit under considerable stressors) and it was on this basis that she had recommended that the mother be psychiatrically assessed.

The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood; his attitude to the mother and the children’s relationships with her

Involvement in the children’s lives

The father’s evidence included that, during their cohabitation, he and the mother had shared in the children’s care – for example, he had cooked dinner for the family two nights a week, cleaned the kitchen every night and put one of the children to bed whilst the mother put the other child to sleep. He said he and the mother had made joint decisions about the children's long-term welfare and development. He was, on his account, a very involved parent. He said he had taken the children on lots of outings by himself (including excursions, shopping and outdoor activities) and that he had taken them to countless birthday parties and other outings on weekends so that the mother had the necessary time and space within which to study for the two degrees she had completed.

When interviewed by Ms B on 22 December 2022, the father denied the mother's assertion that he had a weak bond or relationship with the children – he said it was "mind boggling" that she would make such a claim and asserted she was trying to paint him as someone that he is not. He said he had been an active and involved parent who was home every night, rarely worked on weekends, and did not travel for long periods; although the mother had been a stay-at-home mother (and therefore had the primary parenting duties), he had helped with caregiving after he returned from work and on weekends: he described reading to X every night; bathing both children; taking the children to extracurricular lessons each week; taking X to extracurricular lessons and helping her with her homework. He said he had gone to children's birthday parties with the children and was the one who cared for the children in the evenings and on weekends whilst the mother was studying – his view was that he had been a present father who had taken an active role in the children's lives and, consequently, he felt that he had had a close relationship with both children whilst the parties were married.

The father said he had had a mutually loving and respectful relationship with each of the children when they all lived in the same residence.

I generally accept the father’s evidence about the degree to which he was involved in parenting the children prior to him moving out of the shared residence in March 2020.

Capacity to meet the children’s emotional, intellectual and other needs

Having interviewed the father for the first Family Report on 14 October 2021, Ms B concluded that he was friendly, polite and co-operative; there was no evidence of psychosis, a formal thought disorder, perceptual disturbances, mania, anxiety or a pervasive mood disturbance; there was no evidence of acute mental illness or of a significant personality disorder – she thought he presented with a stable mental state.

I accept Ms B’s conclusion that the father did not present with significant features of a personality disorder during the interview and did not demonstrate traits consistent with narcissistic personality disorder based on her interview, the filed material and the subpoenaed records provided to her.

Ms B said that, when she interviewed the father on 22 December 2022, he was polite, well mannered, and cooperative with the interview process; he remained calm and relaxed for the duration of the interview; his mood was euthymic and his affect was congruent with mood and reactive; his speech was normal across all dimensions and his thought patterns were logical, goal directed and coherent. Again, I accept her assessment that there was no evidence of psychosis, a formal thought disorder, perceptual disturbances, anxiety or a pervasive mood disturbance; the father’s perception and cognition were intact and there were no objective indicators of impairment.

In her February 2023 report, Ms B said that, in contrast to the mother, the father appeared to have the ability and insight to meet the children's developmental needs; she thought he seemed well-supported by his partner and that he presented as the emotionally healthier parent; he appeared to have the ability to encourage and enhance the children's relationship with the mother.

The father’s evidence included that he had been staying in a one-bedroom unit because he was uncertain about the future in relation to the children; he said he had been limiting his expenses to ensure that he could pay for things for the children and the legal fees for this matter.

The father also said that, if the children were ordered to live with him as he sought, he would immediately look for suitable accommodation so that they could have their own bedrooms; he would rent a home in the Brisbane so the children could attend the schools at which they had been attending or, I infer, an appropriate, locally situated school. He also said that, if the children moved to live with him, he would gradually introduce them to Ms O and her child (whom they have never met) and would seek the assistance of a professional as to the best way to achieve this.

I generally accept the father’s evidence about the actions he has take since March 2020; I accept that he was truthful in outlining the actions he proposed to take if the children were ordered to move to live with him.

Attitude to the children and to the responsibilities of parenthood

Ms B noted in her January 2022 report that the father presented as genuinely concerned and upset by the prolonged absence from the children and the absence of any repair to his relationship with them: he was open to any suggestions for ways in which his relationships with the children could be repaired. I accept she assessed him as concerned for the children's welfare in the care of the mother and their exposure to the mother's influence, emotional dysregulation and her attitude towards their education (absenteeism in particular).

When interviewed by Ms B on 22 December 2022 for the February 2023 report, Ms B informed the father of the children's views and wishes. He responded that it was difficult for him to hear what the children had said about him. I do not doubt this is the case.

Dr K noted in her January 2023 report that the father presented as distressed and aggrieved at the loss of his relationships with the children: he attributed the estrangement to the mother’s ongoing vilification of him and expressed a sense of hopelessness about changing the situation via less intrusive mechanisms such as therapy. She noted he had flagged that he had made the assessment that the options had become limited such that changing the children’s primary residence was the only way of ensuring that they had the opportunity to have a relationship with him.

The father’s evidence included that he had continued to send the children presents each year for birthdays and Christmas but had never heard from the mother about these. In contrast, the mother repeatedly said that the father had not sent the children gifts for their birthdays for a number of years; further, when interviewed by Ms B on 22 December 2022, she made multiple remarks about her current financial circumstances (including that she had no money; had had difficulties attending therapy with a clinical psychologist due to the cost of petrol) and said that the father had not financially contributed to the children's educational expenses or extra-curricular activities – for example, Y's sport and other lessons and X's sport and other activities.

Given that the father gave the children Easter eggs during one of the visits in 2023 at which Ms E was present, I accept that he has previously sent gifts to the children; I also note that, as referred to in the Schedule, the mother has previously been critical of the father’s conduct in giving X a gift for an achievement at school.

Attitude to the mother and to the children having ongoing relationships with her

Ms B noted that, when interviewed on 14 October 2021, the father told her that he wanted the children to feel loved by, and to have a loving relationship with, both parents. When interviewed for the February 2023 report, he said he believed that the children should have a meaningful relationship with both parents. I accept that these are his views.

When interviewed by Ms B on 22 December 2022, the father claimed to have never threatened to withhold the children from the mother; however, he said that, as he had told her that he was the children's father and had certain rights to see them and they had the right to see him, he would not have been surprised if the mother had understood his comments to mean that he had intended to withhold the children from her. Various comments made by the mother, as noted in the Schedule to these Reasons, gives support to this possibility.

Despite his beliefs that:

the children not spending any time or having any communication with him since late 2020 was a direct result of the mother’s failure to encourage their relationships with him; and
the only reason the children were resistant to spending time with him was because of the mother’s interference and the environment to which they are exposed in her care,

the father’s evidence included (as he had conveyed to Ms B) that he would be very happy to co-parent with the mother in a positive way if that was possible at any stage in the future. He also said that, if the children lived with him, he would do everything he could, if the Court allowed it, to try and facilitate the children having the mother in their lives as much as possible.

The mother: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood; her attitude to the father and the children’s relationships with him

The mother has previously asserted that the children were at risk of being abducted by the father – she said he had expressed that he was entitled to access them when and where he felt like it; that he had disrespected boundaries and had threatened to access the children while they are at school.

Given the children’s comments at school (as noted in the Schedule), it is highly likely that the mother allowed the children to know of her fears.

Involvement in the children’s lives

The mother’s clear evidence is that the children have expressed strongly and repeatedly that they do not want contact with the father; her view is that attempting to force them to have contact with him will have negative consequences for their emotional wellbeing and will adversely impact the emotional and developmental progress she asserted they have made since the parental separation.

Capacity to meet the children’s emotional, intellectual and other needs

The father’s evidence included that the mother's uncontrolled outbursts, anger management issues, domestic violence (which had included physical and emotional abuse) and use of derogatory language repeatedly directed at him in front of the children had all been leading contributors to the breakdown of the parents’ marriage. His account is that the mother’s outbursts worsened after the births of the children and the extra stresses of her university studies. Having reflected on their relationship, he had identified early warning signs of the mother’s anger issues – for example, the mother wanted to call off their wedding just two nights before they were due to marry, at which time practically all of their friends and family had already travelled to overseas to join them there.

The father said there had been countless arguments and outbursts directly in front of the children: there were many occasions where the mother slammed doors and car doors in his and the children's faces and did not seem to be bothered about acting like that in front of the children. He said that the parents had not had any civil discussions about a mutually agreeable separation; instead, the mother had thrown things at him and would lash out and strike him on a nearly daily basis from towards the end of their relationship until he moved out of the shared residence – he had felt as if she had been trying to entice him to retaliate. He said he had not retaliated but had removed himself from the situation. He also said that this behaviour by the mother had, before 2018, previously only happened two or three times per year.

The father said that any discussions about him and the mother separating triggered her anxiety and fear of being separated from the children – she had always told him that the children would stay with her if they ever separated and if they had any discussions about the children’s care arrangements she would escalate and become violent towards him and in front of the children; she would get angry and shout saying "you are not taking the children"; she would experience an immediate meltdown and fly into a rage, become paranoid and erratic in her comments and appear to be in a panic attack if any further comments were made about the level of care applicable to the children. His evidence included that when the mother went into a rage and her emotions and thoughts became dysregulated he could not communicate with her at all – nothing he said would appear to be heard by her when she was in this state and, from his perspective, there was no reasoning or discussions to be had; his only option was to remove himself in order to prevent the mother from becoming violent toward him in front of the children.

Accounts by others of the mother’s behaviours lend support to the father’s assertions.

The father was concerned that the children were exposed to the mother’s “meltdowns” and outburst – his perspective was that these resulted in the family experiencing anxiety; he was also concerned that the mother did not appreciate the effect her behaviour had on the children. I suspect this is true.

Ms B January 2022 report

Ms B noted that, when interviewed on 14 October 2021, the mother’s speech was spontaneous and slightly pressured and she displayed an anxious affect; her thought content focussed on themes regarding the father perpetrating domestic violence and coercive control towards her and the children; she displayed an intense preoccupation with discussing the wrongdoings of the father and demonstrated an entrenched sense of victimisation by the father; she appeared to have minimal insight concerning her history as an individual and the domestic violence that the police, Court and the father claimed that she had perpetrated.

I accept Ms B’s assessment that there was no evidence of psychosis, a formal thought disorder, perceptual disturbances, or a pervasive mood disturbance; I accept she assessed the mother as impressing as a woman with average cognitive abilities, with an intense fixation on discussing the negative attributes of the father.

When interviewed in October 2021, the mother also told Ms B that she had a history of mental illness: she said she had been diagnosed with PTSD by a psychologist, based on the traumatic experiences during her marriage; she had been diagnosed with depression and anxiety by her GP (which she explained as "look what I was going through, who wouldn't be depressed.") and, in 2019, had been diagnosed with a disorder for which she had been prescribed medication – which she took for only two days before stopping due to the severe negative side effects she experienced.

I accept Ms B’s assessment that the mother had a strong self-concept as a victim of the father's coercion and control and that she had:

said that the father was "psychologically, emotionally and financially abusive"; and
described the father as "vindictive and malicious" and said he had a "narcissistic abuse disorder"; and
told her that she was practicing "narcissistic abuse recovery" via an online platform, had read and researched extensively on men who perpetrate coercive control in their intimate relationships and had participated in domestic violence counselling; and
the firm belief that the father was a high risk of perpetrating domestic and family violence in his parenting role because of his history of perpetrating almost all forms of family violence towards her in their relationship and in the post-separation period; and
alleged that, whilst both children had been exposed to the father’s domestic violence, X in particular had suffered greatly from her exposure to the same – she said that, having researched and read extensively about "people who perpetrate coercive control and this was exactly what he was doing" and that "[X] has picked up on this too."

I also accept that Ms B expressed her concern, following the mother’s October 2021 interview, that the mother’s rigid beliefs about the level of risk that she perceived the father to pose to the children could also significantly impact on her ability to support their relationships with him, both then and into the future – especially given that there was evidence of her blatantly denigrating the father to the children (which conduct formed the basis of her being charged with contravening the protection order).

I accept that Ms B noted in her January 2022 report that the mother appeared to:

lack any insight into how her own behaviours contributed to the parental relationship dynamic – and more significantly, to the short and long-term effects of the father not being involved in the children's lives; and
have significant difficulty in considering and accepting information that did not confirm her own beliefs that the children were at risk of harm spending time with their father.

It bears repeating here that the mother’s evidence when cross-examined in March 2023 included that she did not think that the children would be at risk of being harmed if they spent unsupervised time or communicated with their father.

I accept that, in her January 2022 report, Ms B said that there was some evidence that the mother may have an enmeshed relationship with the children, which would perpetuate her anxieties about them and, in particular, would increase her need to control them and, at worst, sabotage relationships which she perceived to be a threat to her relationship with them. Ms B also hypothesised that such relationship was another significant factor which may have driven the children's desire not to be separated from their mother.

Dr K’s report

I accept, as Dr K noted in her January 2023 report, that, after she had participated in an intake session, during which “perspective taking” was attempted, the mother sent the therapist material on coercive control – to perhaps suggest that Dr K may not fully understand the dynamics of the same and, therefore, did not understand her experiences.

I accept that, in her report, Dr K opined that the mother externalised her issues, distress and insisted the family's problems were entirely generated by the father and was unable, or found it very difficult, to consider alternative views. I accept Dr K said that her sense was that, whilst she had undoubtedly been aggrieved, the mother’s underlying encapsulated understanding of the father was fixed, circumscribed by her beliefs (which had persisted over time) and was not altered despite evidence that may challenge the veracity of her position of non-culpability. Dr K thought that the mother’s dismissal of events where she was viewed to have perpetrated family violence and/or exposed the children to adult conflict supported such conclusion. I also accept that Dr K was concerned that the children had come to share their mother's encapsulated view of the father – namely, that he was a high risk to them.

The mother’s evidence when cross-examined in March 2023 was completely contrary to this “encapsulated” view.

Ms B February 2023 report

I accept that, when interviewed by Ms B on 22 December 2022, the mother made a number of complaints about the litigation process: she complained about her representation, about Ms B (namely, that if Ms B had read her material, she would not have formed the views that she did in the first report) and repeatedly claimed that she was not being listened to and felt disempowered.

I accept that, when her charge of contravening the Protection Order and the police acting to seek a Protection Order to protect the father from her was raised with her, the mother said there were "issues with the police force" and that she had not been treated fairly by the police; I accept she said she was "angry at the system" because "the system is enabling the cashed-up father." I accept she cried and vented her frustration and became increasingly agitated and said things like: ''No one gives a shit" about her and the children and the impact the litigation and therapy was having on the children's lives; she felt that, with the dispute, the father had now "stripped me of my dignity.''

I accept that, as Ms B noted, despite these claims and the clear emotional toll the dispute had had on the mother, her financial struggles (given she said she had no money) and the affective dysregulation and agitation she had displayed during the interview, the mother nonetheless claimed that she was "really happy."

I accept that, whilst she was mostly co-operative with the interview process when interviewed by Ms B on 22 December 2022, the mother also tended to redirect the topic of discussion to her preferred issues and was, at times, overfamiliar. I accept Ms B’s assessment that the mother displayed an anxious affect, with agitation that reduced by the end of the interview; she cried throughout the interview and was easily frustrated, especially when she perceived negative judgment; she was emotionally dysregulated when challenged and required direct assistance to help her to regulate and return to her baseline. I accept that, when agitated and frustrated, the mother raised her voice to the point where she was directed to lower her voice, reminded that there were other clients in the building and told to calm down and have a break.

I accept Ms B’s account that the mother’s thought content was on the children's views and wishes being adhered to and them having no contact with their father; her thought processes were circumferential in that she responded with multiple related thoughts before arriving at the answer. I accept Ms B’s assessment that there was no evidence of a formal thought disorder, psychosis or a pervasive mood disorder.

I also accept Ms B’s report that the mother presented as a highly reactive middle-aged woman who had a tendency to both over-interpret and misinterpret risk and who may underestimate her self-regulation skills, resources and support. I accept, as Ms B raised, that it is likely that the mother’s behaviour escalated when the police applied for a protection order on behalf of the father, especially as she strongly perceived herself to be the victim in their relationship.

I accept that, in her February 2023 report, Ms B said she thought there to be a high risk that the mother would continue in her controlling behaviour of the children and would continue to exclude the father from having a role in their lives and become irate at him. I accept that, when speaking with Ms B, the mother vehemently denied intentionally trying to control the father – her position was that she had been doing everything she could to protect the children from harm.

I note that Ms B opined that the mother had a genuine belief that the children were at significant risk when spending time with the father and that she genuinely felt that her fears about this were being dismissed.

I accept Ms B’s opinion that the mother appeared to lack insight into how her own behaviours had contributed to the parental relationship dynamic and the impact that this had had on the children; I also accept Ms B’s assessment that she appeared to struggle to judiciously evaluate data and had significant difficulty in considering and accepting information that did not confirm her own beliefs that the children were in danger.

Attitude to the children and to the responsibilities of parenthood

I accept that the mother is devoted to the children and focused upon them, their care and their wellbeing. As was acknowledged by Counsel for the father during the course of his submissions, the mother has provided well for the children’s practical and day-to-day needs, as is demonstrated by the content of their school reports which, in essence, reveal them to be (at least at school) well-mannered children who meet expectations about their behaviours and interactions with peers and staff.

Attitude to the father and the children’s relationships with him

The father said the mother did not support him as the children’s father; she did not support him being in the children’s lives, had alienated the children from him and continued to abuse him even after their relationship had ended. He said that, in February 2020, the mother wanted them to continue to live together – on 14 February 2020, she had emailed him to ask that they continue to live in the same residence on the basis that this would be “cheaper than separate accommodation and better for kids". However, he did not think this tenable. He also said that, during the period of time after separation when he and the mother continued to live in the same house, they had shared in the care of the children and that the mother had not always been opposed to them co-parenting.

The father’s evidence included that, after he had initially moved out from the home, the mother had asked him to care for the children whilst she was out and during the peak of the Covid-19 pandemic (for example, on 17 April 2020 and 23 April 2020); he said that, on 22 April 2020, she had emailed him to ask him to come over to her house after work on 23 April 2020 so that he could mind the children while she went out to get supplies. Such assertions are supported by the mother’s communications, as adverted to in the Schedule.

The father’s evidence included that, after he told the mother in about May 2020 that he wanted the children to spend equal time with their parents, the mother then decided to only allow him to see the children in person once per fortnight (for two to three hours) at a public park – she also insisted that she supervise these visits (which he regarded as being a manifestation of her controlling approach to the children’s interactions with him). He said that, at the start of June 2020, the mother further limited the children's time with him to once per month at a public place (still under her supervision) and that she had made this decision unilaterally and for no reason that was apparent to him. The father said that, from then on, the mother started to accuse him of being a "sexual deviant" and that she started to call him “disgusting names” in front of the children.

The father said that, when he met with staff at the children’s school in mid-2020, he was told that the children had attended a counselling programme there during Term 3 because the strain of parental separation had started to affect their social interactions with their friends in the school yard. He said the mother had not told him about this. He also said that, in an email she sent to him on 12 June 2020, the mother said:

[Mr Stalworth] - You are behaving extremely aggressively. I am concerned for the kids safety now. You have absolutely no reason to go to the kids school. You are not their carer. I am seeking legal assistance immediately.

The father said he had spent time with the children in a park, under the mother’s supervision on 27 June 2020. He said she had verbally abused him during this visit. I think it much more likely than not that, as the father alleged, the mother called him a "bloody pedo" and accused him of sleeping with boys and men in public toilets in front of the children.

The father also said that the mother then unilaterally ceased the children’s interactions with him between 28 June 2020 and 28 August 2020. The father said that, apart from sending him photos of the children giving Father’s Day gifts and cards to their maternal grandfather on 27 September 2020 (with the comment “kids are thriving”), the mother had not provided him with any other photos of the children since he moved out of the former matrimonial home. I accept his evidence in this respect.

The father said that, after she asked him to, he attended the mother’s home in late 2020 – while he was sitting on the driveway giving each of the children presents, the mother walked out of the house and, in front of the children, said: "just go off and get blow jobs in toilets". Given the accounts by others of the mother’s dysregulated behaviours on occasion, the father’s evidence in this respect cannot be dismissed out of hand as being inherently unlikely and I think it more likely than not that the mother spoke as the father said she did.

Ms B January 2022 report

I accept that, when interviewed by Ms B in October 2021, the mother’s position was that the children should live with her and spend no time with the father; she believed she was quite capable of meeting all of their needs; she said that it was important that the children's wishes were upheld and that they were no longer forced to have contact with their father because of how stressful it was for them. She did not propose that she would encourage the children's relationship with their father – rather, she accepted the children's views as they currently stood and noted that the previous failed attempts at therapeutic visits at G Services had not resulted in any change in the children's views about spending time, or communicating, with the father. Her view was that, given their level of distress when a therapeutic visit was attempted and failed, no further attempts to repair the children's relationship with their father should be taken and the children’s views about wanting to live with her and spend no time with their father should be listened to.

I accept that the mother told Ms B that: "My relationship with my kids means more to me than anything else. I don't want to let my kids down and I don't want to force the kids in a situation that they don't want to be in."

I also accept that she also told Ms B that, if the children changed their minds and wanted to spend time or communicate with the father, then she would follow their wishes.

I accept that, when he was interviewed, the father told Ms B that he had had no communication from the children at all (including on special occasions) and that the mother had not provided him with her phone number; he said he had not been kept informed about the children's education or health issues and, for example, only learned that X had broken a bone (in early 2022) when he reviewed her My Health Record; he also said the mother had not informed him that Y was being reviewed for ADHD.

Ms B February 2023 report

I accept the mother told Ms B that every appointment the children had attended at G Services had been "traumatic" for them. She said that, whilst a single intake session had been arranged with a clinical psychologist, the only available appointment was on a day she was working and so it did not happen; she also said that she had not been able to commit to driving because "petrol was so expensive and I don't have a car in my name." She said the next service provider was one upon whom the parties had agreed– however, her account was that, prior to conducting the intake session, the service withdrew because the father had been phoning every day and harassing the service. I note that the father’s account was, in essence, that the service declined to provide its services because the parents were engaged in these proceedings.

The mother also told Ms B that she did not know what was expected from the therapeutic counselling undertaken by Dr K; I accept her comment that “I don't know why they were there...” clearly exposes her lack of true support for a process intended to facilitate the reunification of the children’s relationships with their father. I also accept that, despite her apparent confusion about the reasons for the therapy, she facilitated the children's attendance on Dr K on six or seven occasions.

I accept the mother told Ms B that neither child wanted to go to see Dr K; she said Y had been concerned that what happened at G Services (namely, the father appearing during their time there) would be repeated and he had been anxious leading up to the appointments with Dr K. The mother said Dr K had agreed with her that the reasons for the children's attendance in therapy was "confusing" and unclear; she said Dr K's opinion had been that therapeutic intervention for the children was not indicated.

I accept that the mother told Ms B that the children had repeated what they said at G Services – namely, that they did not want to have a relationship with their father and did not want to participate in counselling; I also accept she said she supported them and did not want to force their attendance in a therapeutic intervention. She also said she had done everything she could to help support the children's relationship with their father – her position was that this had, unfortunately, proven to be unsuccessful and the children needed to move on with their lives without the father being a part of it. She reiterated her previously expressed assertion that, if the children wanted to spend time with their father in the future, she would happily facilitate that time.

I accept that the mother’s view was that the children did not need to be in therapy because they were settled, happy and doing well; she also felt that she did not need therapeutic intervention because this was unnecessary, and she wanted to be able to move on with her life.

I accept the mother firmly denied having influenced the children or having inappropriately embroiled them in the dispute or having made false allegations of abuse against the father; she maintained that the children’s decision to have no contact with their father was entirely their own and rejected that this was a severe case of alienation; she said, in essence, that the children's estrangement from their father had occurred for good reason – she said they had wanted very little to do with him even before the parental separation and would be "distraught" if ever left at home with him, such as when she went shopping; she claimed that there was always a weak parental bond between the father and the children and said that the children's wishes merely reflected the minimal attachment that had always existed between him and the children; she also said the children’s distress and anxiety about spending time with their father was due to their direct experience of his abuse and his disrespectful behaviour – she referred to father locking the children in and calling them feral, yelling at them and generally frightening them with his anger.

Late 2021	I accept, as contained in the S School records, that the father emailed Mr CC with a request to organise an urgent meeting to fully understand how the children were progressing.	Exhibit 1, p.234-235.
14/10/2021	Ms B interviewed the parents and the children for the first time. The children (then about 10 and eight years of age respectively) refused to be observed with their father and both told Ms B that they did not want to see or spend time with their father (even if the time was supervised). I accept that X said, amongst other things, that: she did not want to see her father and did not want to communicate with him by phone or video either; and she was worried about her father coming near her, did not want to see him and that one understood what she had been through; and she wanted to live with her brother and mother forever; and it was all positive living with her mother and that she did not love her father. I accept that Y said, amongst other things, that: he never wanted to spend time with dad because he had done a lot of bad things (which he had just told Ms B about); and he did not want to spend any time at all with his father – when asked what he would want to have disappear if he had a magic wand, he said: “I want dad to disappear”; and there were no negatives about living with his mother and he felt safe there – but would not feel safe spending time with his father or living with him.
20/10/2021	I accept, as contained in the S School records, that the father emailed Mr CC to seek an appointment with him and the school guidance officer; I accept that he advised, amongst other things, that he had now heard from two professional sources that X and Y needed psychology intervention and that he wanted to discuss this with them in more detail and that he asked the school to please keep an eye out for any signs in the children.	Exhibit 1, p.234.
Late 2021	I accept that, when interviewed in relation to the Child Development Access programme offered by the BB Hospital, the information provided by the mother included that: there was a 5 year domestic violence order in place; she hoped the programme could help Y with the big transitions of the year (because of DV and separation of parents and moving house) and his teacher had mentioned some concerns about his recall and memory and she was worried he was being left behind in the classroom. I accept that when asked about family factors, the mother’s information included that: there had been domestic violence; the parents separated in Nov 2019; she believed the biological father had a personality disorder: there had been a significant impact on Y (a DVO in place for 5 years) and she thought he would have witnessed arguing and tension but no physical abuse; Y had not really seen his father since the parental separation, although he had seen him briefly with her permission. I accept that the mother also advised that she had offered the father supervised visits with the children but he had declined. I accept that the Summary document prepared following the mother’s interview included that: “[Y] is a 7;0yr old boy who was referred by his GP for concerns regarding his learning and attention. Psychosocial factors identified with previous DV relationship between parents and current DVO in place. Intake interview revealed concerns for [Y's] learning, executive functioning, attention, receptive language, sensory processing and some behaviours such as rocking and hitting his head on the back of chairs. Family is now stable and supported.”	Exhibit 1, p.277-280.
Late 2021	According to the school records, when the father met with the school Guidance Officer and the Deputy Principal, he advised that he had been provided with supervised access to the children that had not been successful; he also informed that X had become dysregulated during the last visit, which had upset Y and resulted in the visit ending. I accept that the father was advised that Y was experiencing some difficulty with learning (which had been ongoing and for which he was receiving extra support) but was doing well socially & emotionally – whilst there had been some reports of behavioural difficulties, these had been considered to be minor in nature by the school. I accept that the school advised that it would continue to monitor Y's wellbeing and would notify the parents if there was a change in Y's emotional presentation.	Exhibit 1, p.236.
05/01/2022	Ms B’s first Family Report is completed.
26/5/2022	A Judicial Registrar made interim parenting orders by consent in terms which included that the children attend family therapy with a qualified family therapist/counsellor as nominated by the Independent Children’s Lawyer to recover and repair their relationship with the father.
Early 2022	The Department records a sixth Child Concern Report in relation to the family – the information provided includes that there were concerns, after he reportedly encouraged someone to download explicit material, that an adult may have provided Y with the details of a site on which pornography could be found and details to enable him to access the site. According to the Departmental records, the notifier advised that Y had reportedly encouraged another child to download explicit material through the Internet and there were concerns that an adult may have provided details to him to allow him to access the material given that it was a porn site; there was said to have been no concerns identified for the children in their mother’s care.	Exhibit 1, p.203.
Mid-2022	I accept that the notes kept by the Child Development Service of a Clinical Review Meeting include that: the parents separated in 2019 and there is a DVO against the father and they are going through court proceedings; the mother works in early childhood; Y has good social skills and friendships, is well supported at school and has emotional resilience following the parental separation.	Exhibit 1, pp.291-293.
Mid 2022	I accept that X's Year 5 Semester 2 report card contained information which included that she consistently demonstrated the school values of respect for self, others and the environment.	Exhibit 1, p.275.
Mid-2022	I accept, as noted in Dr K’s notes of the Intake Session that, amongst other things, the following happened: the mother commented that she was glad she did not have to make the children do this anymore; she appeared supportive of therapy and was glad the children would be listened to and not pushed into seeing the father; she said the children were not interested in seeing their father and were fearful and scared and had been harmed by the court experiences and had had horrific experiences at G Services to which they had been referred; she advised that she wanted sole parental responsibility for the children and for them to have no time with their father – she said she would do what the children wanted but it was not up to her to make the children see their father; and the children (who she said were delightful, polite children) were anxious that her intention was for them to see their father – they spoke about being “tricked” into seeing him and described their G Services experience as horrific; neither really wanted to be there and commented that “no matter what, we won’t change our minds” – they did not want to see their father, who they said was abusive; they expressed fear of him and said that he had yelled and had hurt their mother (although they could not provide any specific incidents); they had not spent time with him since June 2020 and were now refusing to see him – X was distant and did not want to engage and Y constantly referred to her and both commented to the effect of her not catching them out and them not wanting to see their father.	Exhibit 1, pp.294-295.
Mid-2022	I accept that Dr K’s notes of the session that day included, in essence, that: both children had said that they did not want any time with their father at all; both had reported not wanting to see him, although their complaints lacked specificity and seemed somewhat incongruous; both had said that they wanted to be left alone; whilst Y had initially described his experiences of his father as “horrific”, he changed this to “upsetting”; both children said that they would feel happier if there were no more attempts for them to spend time with their father, although X (who accepted the possibility that she had restricted her memories to only negative events and agreed there was not anyone around reminding her of anything else) also commented that she would leave just a crack in the door to reconsider her options when she was ready and maybe an adult.	Exhibit 1, pp.296-297.
10/8/2022 (5:15 pm)	I accept that the mother emailed Dr K in terms which included that: “I was caught off guard when you asked to check in with me as I thought counselling with only for the children…[Mr Stalworth] is 100% responsible for his damaged relationship with our children - not me. I have agreed to all his demands in these court proceedings and provided the children with every opportunity to safely reconnect with [Mr Stalworth]. I do not talk to them about court. I do not ‘coach’ them as he accuses me. He is not the victim here. Also attached are some photos of [X's] journal that she bought home a few days ago. I am not sure if it helps in anyway.”	Exhibit 1, p.298.
10/8/2022 (5:49 pm)	I accept that Dr K emailed the mother to advise her that the appointments would proceed as she needed to build a relationship with the children should the Court determine that they are to spend time with their father; she also expressed the hope that “our relationship” would enable the children to manage that if it occurred and that she was a safe adult who could walk alongside the children.	Exhibit 1, p.299.
10/8/2022 (6:06 pm)	I accept that the mother emailed Dr K in terms which included that: “Maybe please don't say to them that you don't know what you [they] are doing there, and that you don't think any further appointments are necessary because they were saying to me in the car after that they were happy that they did not have to go back. It is not easy getting them to engage in this process and that just makes it more difficult”	Exhibit 1, p.299.
10/8/2022 (6:10 pm)	I accept that Dr K emailed the mother as follows: “Sure - my error. I will discuss that it is a precautionary step in case the court orders that they spend time – they will need support for this so as to lessen the impact and stress for them.”	Exhibit 1, p.300.
10/8/2022 (7:05 pm)	I accept that the mother emailed Dr K in terms which included that: “[This] it is different to what my understanding of your role is. I thought you explained it to me at intake as your role is to help the children work through their trauma and to give them a voice in court…I find this whole process extremely coercive and triggering. I told them you want to see them again and [Y] started crying saying he does not want to do this anymore. I told him it is going to be ok. [X] did not say anything but she is unhappy.”	Exhibit 1, p.300.
15/8/2022	I accept the mother emailed Dr K in terms which included: “…this excellent podcast […] talking on Coercive Control in DV […] and thought to share it with you. I hope you have time to listen to it…My hope is that people who work in the family court system like you, understand what coercive conrol abuse…nothing ‘high conflict’ about abuse. I never had a choice in anything.”	Exhibit 1, p.301.
11/10/2022	I accept the mother emailed Dr K in terms which included: “…a date has been set for our trial for March 2023. [Mr Stalworth's] behaviors have started to escalate again in the past few weeks, and I am feeling quite anxious as things are starting to occur on a weekly basis again…Next [Mr Stalworth] turned up at the children's school without advising me, and it caused a lot of problems… I asked [X] and [Y] if they would like to see [Mr Stalworth's] parents as per the request, and they both said immediately and directly, no…[Mr Stalworth's] mother sent [X] some disturbing emails in 2020 that caused her to contact [U Service] (without my knowledge) shortly after worried that [Mr Stalworth] was trying to take her from her home with me… I then showed the picture of the gifts to the kids to make sure they were sure about how they felt, and they both said they did not want them or to see [Mr Stalworth's] parents. I think that ship has sailed…[Mr Stalworth] suddenly wanting to contribute towards half of the children's stationary costs, I have asked my lawyer to draft a response requesting that [Mr Stalworth] agrees to pay half of all extracurricular, educational, and medical expenses of the children correctly and backdated to 2020… for the next appointment, I wish to inform you in advance that the children and I will be away visiting friends […] for a week […]. Please also note that I do not want the father to be notified that I will not be at my home during that time for security reasons.”	Exhibit 1, pp.302-303.
15/10/2022	I accept that Dr K’s notes of the session included that the mother had indicated that she felt it was all about money for the father; she insisted the children did not want to see him and said that she would no longer make them – even if orders are made for contact centre time, she will not take them and she will not consider alternative perspectives; also that the children had said that they did not want to come to the sessions and that they were not finding it helpful and had other things to do.	Exhibit 1, p.304.
18/10/2022 (10:17 am)	I accept the mother emailed Dr K in terms which included: “Thank you for seeing [X] and [Y] on Saturday. Please advise when you would like to see them again bearing in mind we are away on holidays for the next week.”	Exhibit 1, p.307.
18/10/2022 (1:18 pm)	I accept Dr K emailed the mother in terms which included: “…I am a little confused regarding your question given that at the last session you indicated you felt the sessions were having a negative impact on the children and you hoped they would not continue. I acknowledged your concerns. I discussed with the children what they found to be useful from the sessions and they echoed your impressions, stating they didn't wish to attend, expressing some fear I would introduce their father without warning or something similar. I reassured them this would not occur…I would not be forcing them to continue the sessions…I explained the counselling sessions were to provide them with support going forward given there is a Court case coming up and that I would be available to them should they need support into the future. The children agreed with this and maintained that they did not wish to continue at this time. Given this, I have not scheduled any further sessions at this stage.”	Exhibit 1, p.306.
18/10/2022 (2:28 pm)	I accept the mother emailed Dr K in terms which included: “…I am a bit alarmed by your reply as it is not how I recollect our conversation went on Saturday. I do not recall saying I felt the sessions were having a negative impact on the children; however, you may have interpreted my explaining to you that [Y] has been anxious leading up to every appointment which is true…he missed out on […] the last school term due to me keeping his availability open for counselling appointments. The children have not wanted to attend counselling from the beginning which I did explain to you, but I have done my absolute best to encourage them to go telling them it was good for them to talk to you. I most certainly did not say “I hoped the sessions would not continue”. You asked me if I thought counselling was needed to continue, and I specifically and very carefully directly answered you that “it was not for me to say, and that I cannot influence things at all” …I have been very careful to be encouraging the children to attend counselling, I have been proactive in seeking out appointments with you and making sure we were available for every appointment…I have no idea what the children have said to you in your appointments so I cannot comment however, there was one appointment where you said to them in front of me that you did not understand why they were there and they took that as they were not required to keep going. But then later changed your mind. I think this was confusing for them too. I too have been confused about what your role is in terms of counselling for the children. You told me it was to develop a relationship with the children, to support them through family court proceedings, to be support for them should the Court order them to go with the father. However, it was also my understanding that you are to advise the court of what the children's wishes are regarding contact with their father by the end of the counselling as per the Family Report… You asked me what would happen if the Court ordered them to go with the father, and I told you they would not go, and that if the police forced them to go it would be devastating for them and that they are at risk of running away. I told you that I would have to further court proceedings to change the orders because that would clearly not be in the best interests of the children. I understand you are satisfied the children are no longer required to attend therapy, please can you advise the reasons why so that the court is satisfied I have done everything that was required of me as per the court orders?”	Exhibit 1, pp.305-306.
22/12/2022	Ms B interviewed the parents and the children for the second time. The children (then about 11 and nine years of age respectively) refused to be observed with their father; their expressed wishes about their father were synonymous with those expressed when Ms B first interviewed them and she reported there was no change to their attitude toward spending time with their father. I accept that both children expressed that they wanted to “make dad disappear”; when asked to imagine him walking into the room and to anticipate how they would respond, both agreed they would scream because they would feel scared and would have the thought that he would hurt them and take them away from their mother. I accept that X also said that she would run away and escape. I also accept that both children told Ms B, in essence, that they were relieved the hypothetical scenario would not take place – both said they were very relieved and grateful that they would not have to spend time with the father for the report; both firmly believed that he would take them away from their mother if they came face-to-face with him. I accept that both children told Ms B that they wanted to live with their mother and spend no time with their father – when asked if there was a message they would like passed onto him, they said that they wanted him to know that they wanted “nothing to do with him”; each child said that they neither loved nor missed their father – they instructed Ms B to tell him that they do not love or miss him. I accept that both children told Ms B that their mother did not speak to them about their father, except to remind them that, if they wished to spend time with him, she would arrange it; they said she told them this on average twice a week, but otherwise did not speak of their father and she did not speak negatively about him. I accept that when Ms B took the children back to the mother and told her that they did not want to be observed with their father and, accordingly, no observations would occur, the mother asked the children in a “neutral tone” whether they were sure and told them that they could spend time with the father if they wanted to – to which they replied: “No”; I accept that when their maternal grandfather raised the same proposition, the children also replied with the same negative response.