SYMS & SYMS

[2019] FamCA 724

FAMILY COURT OF AUSTRALIA

SYMS & SYMS [2019] FamCA 724

FAMILY LAW – CHILDREN – Magellan List – With whom the children shall live and spend time – Where the subject children are boys aged 10, eight and six – Best interests – Where the children currently live with their mother and maternal grandparents, and spend supervised time with the father – Where the applicant father seeks a reversal of the children’s residence and following a period of no contact for them to spend supervised time with the mother graduating to unsupervised time – Where the respondent mother seeks orders for the children to remain living with her and no proposal for the children to spend time or communicate with the father – Where the Independent Children’s Lawyer proposed a change in residence and a four month moratorium prior to the mother spending professionally supervised time with the children – Where there are unsubstantiated allegations of the father sexually abusing the children – Where the mother has developed a fixed idea that the father has abused the children – Where the mother’s mental health declined prior to separation and she was subsequently diagnosed with depression – Where each parent is of the view that the children require protection from the other parent – Where the children have a meaningful relationship with both parents – Where the mother is the children’s primary attachment – Where the relationship between the father and the children is under strain – Where there is no unacceptable risk of harm or abuse for the children in the care of the father – Where the mother’s actions, although intended to be protective; have caused the children emotional and psychological harm – Where the risk of emotional abuse in the mother’s care is heightened by the maternal grandparents’ loyalty to the mother – Where the father is untested as a single parent – Where the mother cannot and will not support a relationship between the father and the children – Where the mother’s capacity to care for the children is impaired by her belief that the father has sexually abused the children – Where the single expert is of the view that the children will likely suffer adverse developmental consequences if they remain in the care of their mother – Where a reversal of residence is appropriate – Ordered the children will live with the father – Ordered the children will spend supervised time with the mother for a period of 12 months following a four month period of no time – Ordered the mother to spend time thereafter supervised, at the discretion of the father as to supervision being dispensed with at any future time.

FAMILY LAW – PARENTING – Where both parents seek sole parental responsibility – Where each parent has negative beliefs about the other – Where trust between the parents may never return – Where the presumption of equal shared parental responsibility does not apply – Where the resident parent should have sole parental responsibility – Ordered the children live with the father and therefore he shall have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 64B(2)
Family Court Rules 2004 (Cth) Ch 15

APPLICANT: Mr Syms

RESPONDENT: Ms Syms

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1457 of 2018

DATE DELIVERED: 10 October 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 30 July 2019; and 19 - 23 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Warwick Hill Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting orders in relation to X (born … 2008) Y (born … 2010) and Z (born … 2012) “the children” are discharged.

Residence

1. That the children forthwith live with the father.

Parental Responsibility

1. That the father have sole parental responsibility for the children.

2. That on each occasion a decision in respect to long term welfare arises the father shall:

   a)Advise the mother in writing of the issue and his proposed decision;

   b)Invite the mother to express her view or any alternate proposal she may have within a nominated time; 

   c)Give genuine consideration to timely views of the mother;

   d)Advise the mother in writing of the decision taken.

Time and Communication with the Mother

1. The children shall spend no time with the mother or the maternal grandparents for a period of four months.

2. Commencing four months from the date of these orders the children spend time with the mother, supervised by a professional supervisor or contact service, nominated by the father, as follows:

   a)Until the end of the 2020 calendar year on days and times as nominated by the professional supervisor or contact service, being no more than three (3) hours on one day per month whether in school terms or school holidays;

   b)Thereafter until the end of the 2021 calendar year for one weekend each calendar month, being the first weekend of each month, unless otherwise agreed in writing between the parties from 10.00 am until 4.00 pm on Saturday, and 10.00 am until 4.00 pm on Sunday;

   c)Thereafter as agreed between the parties, with the father to have absolute discretion over when and if supervision is dispensed with in future;

   d)At such other and or additional times, if any, including weekends and holiday periods, as are agreed between the parties.

3. The parties do all acts and things and sign all documents necessary to complete any intake procedure required by the professional supervisor or contact service, and the cost of the supervision referred in Order 6 herein will be shared equally between the parties.

4. Commencing in 2021, or earlier at the discretion of the father, the mother may contact the children by telephone each month in the week before the children spend weekend time with the mother.

5. The mother may send cards, letters and gifts to the children which the father may, in consultation with the therapist/s for the children, pass on to the children unless he considers it would be detrimental to do so.

6. The father shall assist all or any of the children who wish to do so to send cards, letters and gifts to the mother.

Specific Issues

1. The father shall forthwith attend upon a general practitioner with the children for the purposes of securing a mental health plan to enable each of the children to attend upon a child and family psychologist to assist each of them individually in their adjustment from living with their mother to living with their father and spending supervised time with their mother.

2. Leave is granted to the father to provide a copy of these orders and reasons, and the expert report of Dr M dated 29 March 2019, to any psychologist engaged to provide therapeutic services to any of the children and further, shall provide contact details for the mother to enable her engagement in that therapy at the direction of the therapist if the mother chooses to be involved.

3. Leave is granted to the mother to provide a copy of these orders and reasons and the expert report of Dr M dated 29 March 2019 to her treating psychiatrist and to Dr N GP if she wishes to do so.

4. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

5. The father shall notify the mother of any medical emergency, illness or injury suffered by the children whilst in his care warranting treatment by a third party.

6. The parties shall forthwith inform each other, and keep each other informed, in writing of their respective residential address, mobile telephone number, and email address.

7. The father shall authorise and request the principal of any school attended by the children to provide to the mother, copies of all school reports and school photograph order forms relating to the children.

8. Leave is granted to the father to provide a copy of these orders (but not the reasons) to the principal of the children’s school and may provide the reasons to the principal to read if the father considers it is appropriate and necessary to do so.

9. Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained, unless with the prior written consent of the father, for a period of two years from entering upon or approaching within 500 metres of:

   a)The father’s residence;

   b)The father’s place of employment; or

   c)The children’s schools.

10. The mother shall forthwith deliver the children’s passports to the solicitor for the father.

11. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the father is permitted to do all acts and things and sign all documents to apply for and retain Australian travel documents, including Australian passports for the children, without the mother’s consent (written or otherwise) and to facilitate the order leave is granted for the father to provide a copy of these orders to the relevant statutory authority.

12. Pursuant to s 65Y of the Family Law Act 1975 (Cth), the father is permitted to travel internationally for holidays with the children without the mother’s consent.

Explanation of the orders

1. That the Independent Children’s Lawyer forthwith meet with the children to explain the meaning and consequences of the orders to the children and to answer any questions they may have.

2. That the father arrange for the children to see the single expert Dr M at a mutually convenient time and place to have any further questions the children or any of them may have about the orders, answered.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Syms & Syms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1457 of 2018

Mr Syms

Applicant

And

Ms Syms

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of three children, X, Y and Z (collectively, “the children”), aged 10, eight and six at the date of trial.

2. The children presently live with their mother and the maternal grandparents and spend supervised time with their father.

3. The parties began their relationship in December 2003. They began living together in either mid-2004 or early 2005. They were married in mid-2006.

4. The three subject children were born in 2008, 2010 and 2012.

5. Between 2009 and 2017, the parties and the children lived variously in Canberra, Country L and Country J as a result of postings for the father in his work.

6. The parties separated in February 2018 having been together for a total of 15 years.

The Parties

The Applicant Father

1. The father is aged 48 years and presently lives with the paternal grandmother at K Town in Queensland. Members of the extended paternal family live close by.

2. The father is employed as a public servant. The father is currently relying on personal leave benefits. He intends to return to work when these proceedings have been concluded.

3. The father has not re-partnered.

The Respondent Mother

1. The mother is aged 46 and lives with the children in the home of the maternal grandparents in the small country town of G Town, New South Wales (“NSW”).

2. The mother is also employed as a public servant and is currently on long-service leave. She has begun some volunteer work and intends to return to work when these proceedings are complete.

3. The mother has not re-partnered.

The Trial

1. Both parties were legally represented by solicitor and counsel. The interests of the children were represented by an Independent Children’s Lawyer (“ICL”) who instructed counsel.

2. The trial was allocated six days being 30 July and 19 to 23 August 2019. The matter had been allocated to the Magellan Protocol.

3. On the first day, audio-visual footage from the second and third rounds of the Joint Investigation Response Team (“JIRT”) interviews of the children were played in Court. The audio-visual footage from the first round of the children’s JIRT interviews had not yet been produced.[1]

   [1] Affidavit of the mother filed 9/07/2019, par 272

4. The first round of these interviews were subsequently produced by police.

5. Arrangements were successfully made for the single expert to see all the interviews prior to her giving her oral evidence in cross-examination.

6. The proceedings were efficiently and co-operatively conducted by all legal representatives.

7. The matter was concluded within the allocated time and judgment was reserved.

The issues

1. The issues in the case can be categorised and summarised as follows:

Were all or any of the children sexually assaulted, abused or mistreated by the father?

1. I am satisfied that the mother has an unshakeable belief that the father has molested all three children.

2. The evidence before me does not support a finding of the father having abused the children, or any of them, sexually or in any other way.

If no positive finding is made of abuse of the children by the father, is there an unacceptable risk of abuse or harm for the children in the care of the father?

1. There is no unacceptable risk of harm or abuse for the children in the care of the father.

2. However, the following factors should be noted. The father has not been as involved in the day to day care of the children as the mother has been over the years.

3. The father appears to have treated the mother’s fears about X’s behaviour “not being normal” and all the children being “out of control” or “broken”,[2] as symptoms of stress or mental illness. They may have been. However the father probably missed or overlooked two possibilities. First, that something had happened to X that was upsetting and possibly abusive starting from as early as when the child was in Kindergarten and continuing. Next, that X may have acted out with his brothers, things that had happened to him.

   [2] Affidavit of the father filed 8/07/2019, par 52

Have all or any of the children been emotionally and/or psychologically abused by the mother?

1. The mother is devoted to the children whom she dearly loves.

2. I am confident that she would not have intentionally harmed them.

3. However I conclude that the actions of the mother, although intended to be protective, have been damaging. The mother appears to have over time, and perhaps from as early as 2014, developed a fixed idea that the father has sexually abused the children.

4. It is not just that. The mother has also refused to consider other possibilities and explanations for the behaviour of the children.

5. She has been willing to berate the children by, to use her own word, “yelling” at them for not saying what she expected them to say to police and other authorities in a JIRT interview. She said to them “I have spoken to the people I need to, to keep you safe, but you didn’t talk to them. I know things have happened to you; you have told me things have happened to you”.[3]

   [3] Affidavit of the mother filed 9/07/2019, par 176

6. The single expert expressed a view that presented X as a very disturbed child.[4] The single expert agreed with the proposition that X believed, or was coming to believe, the allegations about himself and his brothers and he had a very black and white view of the family. During the interview, he held a negative view of the paternal family and was particularly dismissive of the paternal aunt to the single expert, “saying ‘I doubt that she [the paternal aunt] would do anything’ if his father abused him or she saw the father was abusing him. He said ‘she is sticking up for him in Court’.”[5]

   [4] Single Expert Report dated 29/03/2019, pars 126-169

   [5] Single Expert Report dated 29/03/2019, par 144

7. X’s first remark at the beginning of the interview was, “I’m here to tell you about the bad things my Dad has done”. This remark was described as “unprompted” and the child returned to similar statements at numerous times throughout the interview, even at times when the statements were inconsistent with the content.[6]

   [6] Single Expert Report dated 29/03/2019, par 126

8. The children have been put under pressure and also not listened to as individuals by the mother.

If no positive finding is made of abuse by the mother, is there an unacceptable risk of abuse or harm for the children in the care of the mother?

1. There is a risk of emotional abuse for the children in the care of the mother.

2. The children are most likely to lose contact with their father and to accept, from the mother, that the reason for that was that he was a dangerous and abusive father.

3. As a separate issue the mother has struggled with mental illness. She acknowledged to the single expert that she was in severe depression when the parties and the children arrived back in Australia in December 2017.

4. The maternal grandmother recognised straight away that the mother needed professional help and made an appointment for her with her own general practitioner.

5. The mother and the maternal grandparents assert that she has recovered well although there was no relevant medical evidence produced. A report from a treating practitioner could have been helpful.

6. An affidavit from a psychiatrist, Dr O, was prepared on the basis of providing a retrospective opinion as to whether the mother suffered from post- natal depression after the birth of the youngest child in 2012. A successful objection was taken to that affidavit.

7. In discussion with the single expert, the mother was reported to be “often inconsolable and crying”.[7] She referred to “enormous difficulties with sleep” which she said had improved. At the time of the single expert’s interview with her, the mother had only very recently been released from hospital after a car accident and was still taking pain killers. However, that cannot be the whole explanation.

   [7] Single Expert Report dated 29/03/2019, par 37

8. During cross-examination, the mother said:

   I’ve hardly had a night where I’ve slept all night because of children waking, since X was born.

9. That is a period of almost 11 years.

10. The mother described her lowest point which was after the first JIRT interview when she “…‘yelled at the boys afterwards’. She said she felt panicked, distressed and particularly concerned that she would not be able to keep the children safe because they had not made disclosures”. [8]

    [8] Single Expert Report dated 29/03/2019, par 39

11. She felt terribly sad about losses, of her job, of her trust in the father.

12. It is not safe to assume that if the children remain living with the mother that her obsession with abuse would abate nor that she would feel less of an overwhelming concern about keeping the children safe.

What should the allocation of parental responsibility be?

1. In these circumstances, the presumption of equal shared parental responsibility (“ESPR”) does not apply. The children will live with their father and he should have sole parental responsibility for them.

With whom should the children live?

1. Although the father is the less experienced parent, he is just as committed to the children. Importantly he is attuned to the mother’s beliefs being genuine.

2. The children should live with the father.

Whichever parent the children live with, what time and communication should the children have with the other parent?

1. There needs to be time for the children to adjust to such big changes. A new life with the father, another new school, the loss of the close connections with the maternal family and friends in G Town, and their much loved dog. They also urgently need safe therapeutic relationships with skilled professionals in which to understand what has happened since they left Country J nearly two years ago and did not go back as expected.

1. The ICL proposed a four month moratorium which I accept is needed.

2. The children love their mother, they appreciate the attention and fun she can provide. They are wary of getting into trouble for not saying the right thing. They may feel guilty, especially X, for reporting events about their father. They may also feel guilty for “letting their mother down”.

3. After four months of no contact at all, short periods of time with the mother can start in a contact centre or through a supervision service. The supervision is crucial to protect the children from questions about the conduct of the father and directions being given about protecting their own safety. A full year of short visits will be needed.

4. Thereafter, for a further twelve months, the mother will spend time with the children on both days of one weekend each month under supervision which will be the progression that allows the children to restore their trust and confidence in the mother and resume normal enjoyable activities. A telephone call in the week before that weekend period will assist the children to feel certain about what will be happening.

5. Beyond that point the parties will either agree to dispense with supervision because it is safe to do so in the view of the father or the mother will return to Court with relevant evidence to support supervision being dispensed with. There could be other outcomes.

The Applications

The Applicant Father

1. By his Amended Initiating Application filed 24 May 2019, the father proposed that the children move to live with him and that he have sole parental responsibility for them.

2. He proposed that after a three month period of the children spending no time at all with the mother to enable their adjustment to new arrangements, the children would then spend time with the mother for a period of 12 months, supervised for both days of one weekend per month and also for blocks of consecutive days in holiday periods.

3. Thereafter, supervision would cease. Detailed proposals for more expansive time and communication follow.

4. The father proposed in the alternative:

   ·If the Court concluded that the children should continue to live with the mother, they spend one weekend per month and half of school holiday periods with him.

5. That is consistent with the father’s intention to remain living in South East Queensland.

6. By final submissions, the father had become less confident about an order for defined unsupervised time for the children with the mother and about what time she should spend with them.

The Respondent Mother

1. By her Amended Response filed 3 August 2018, the mother proposed that the children continue to live with her and that she have sole parental responsibility for the children.

2. The mother did not propose any time or communication for the children with the father.

3. She sought a restraint on the father seeing the children, communicating with them and coming near them at all, at home and at school.

4. The mother also sought a personal protection order restraining the father from harassing, molesting or stalking her and from approaching within 50 metres of her, at home and at work.

5. In final submissions, the mother did not resile to any extent from her proposed orders.

6. The mother apparently did not contemplate a change of residence for the children away from her. No orders were proposed in that event.

7. Alternate orders would have assisted the Court given that the mother was unsure during her cross-examination about where she would live if the children were with the father, but raised the possibility of a move by her to Brisbane.

The Independent Children’s Lawyer

1. The preliminary position of the ICL was that subject to the testing of the evidence, the children should live with the father and he should have sole parental responsibility for them.[9]

   [9] Exhibit 1, page 5

2. Subject to further evidence, in particular from the single expert, the ICL expected to come to a position about time and communication for the children with the mother.

3. By final submissions, which were considered and of assistance to the Court, the ICL had come to the conclusion that the Court could not make a positive finding that sexual abuse of the children had occurred nor make a finding that sexual abuse had not occurred.

4. The ICL formulated three possibilities for the children:

   ·That they had been victims of sexual abuse by the father, a finding that could not be made on the evidence;

   ·That X may have been sexually abused by someone else; or

   ·That the subject children have not been well managed and have been put under pressure by the mother who ruled out any information which did not fit her theory of abuse.

5. Ultimately, the ICL concluded that the risk of harm for the children accepting false beliefs was higher than the harm of losing their mother as their primary carer.

6. The proposal on behalf of the children[10] was therefore a change of residence with a four month period of no contact with the mother before limited supervised time with her began.

   [10] Exhibit 13

7. There was no proposal for progression to unsupervised time.

History of Relevant Events

1. The parties and the children lived comfortably but moved often due to the nature of the father’s employment as a senior public servant. During two overseas postings, the parties had the benefit of servants to assist with the household and the care, ultimately, of three young children.

2. The parties started their life together in Canberra where they had met. The oldest child, X, was born in 2008.

The move to Country L 2009 to 2013

1. When X was about 10 months old, in 2009, the mother moved with him to join the father in Country L. The father had taken up a new position and relocated five months prior.

2. The two younger children, Y and Z, were both born in Country L.

3. In her police interview[11] the mother spoke in quite joyful tones of her time in Country L) which she very much enjoyed.

   [11] Exhibit 20

4. The mother had no concerns about the children during that period.

Return to Canberra 2013

1. In February 2013, the parties returned from Country L to live in Canberra.

2. The return was described by the mother as “a reverse shock to the system to come back even though it’s your home. When you are there [posted overseas] it’s so supported.”[12]

   [12] Ibid

3. Later in that year, November 2013, the mother returned to her former employment after five years of leave. She worked part-time three days per week. The children were then aged five, three and one year. They all attended day care.

X (2014 to 2016)

1. In 2014, X started Kindergarten. At some time during that year, or possibly the next year, the mother heard X saying to Y, “This is our secret”.[13] This was heard by the mother when the children were behind a partially closed door. She asserted that she saw X trying to kiss Y, then aged about three or four years. On a separate occasion, she also saw X lying on top of Y trying to kiss him and Y was squealing.[14]

   [13] Affidavit of the mother filed 9/07/2019, par 24

   [14] Affidavit of the mother filed 9/07/2019, pars 35-36

2. These two incidents were the first of many where the mother records seeing and/or hearing one or more of her children engaging in an activity which made her feel uneasy.

3. The distinctive element of these observations and others like them is that the mother often did nothing active in response. She did not speak to the children or disrupt them from what they were doing, then or later. She was apparently a silent observer.

4. Her most consistent response was to worry and wonder what was causing their behaviour.

5. The mother records that during X’s kindergarten year in 2014, X’s teacher contacted her very regularly about his behaviour. She recalls on one occasion, the teacher saying “he [X] is not the little prince you think he is”.[15]

   [15] Affidavit of the mother filed 9/07/2019, par 37

6. Towards the end of the Kindergarten year, the mother asked the father to return some of the telephone calls from the school with the hope he would confirm her comments that “we will reinforce the schools (sic) expected behaviour”.[16]

   [16] Affidavit of the mother filed 9/07/2019, par 39

7. There is no information about what X’s troubling behaviour was, and what, if anything, the parents did together, or separately, about it.

8. The mother also records that in his kindergarten year, and probably in the following year or two years, X regularly woke up with screaming nightmares, after having taken her several hours to get him to go to sleep. X wet his bed most nights. He also appeared to his mother to be pre-occupied “with bottoms, bottom holes and penises”.[17]

   [17] Affidavit of the mother filed 9/07/2019, par 43

9. Other than telling X not to touch the private parts of his brothers the mother does not refer to herself, or the father, taking any ameliorating step.

10. The father records his observation that ever since X started school he had difficulty going to sleep. When asked what was bothering him he explained to his parents “my brain just won’t go to sleep”.[18]

    [18] Affidavit of the father filed 8/07/2019, par 41

11. The father described X as a popular and confident child at day care but “he had a challenging first year at school, both socially and academically.”[19]

    [19] Affidavit of the father filed 8/07/2019, par 43

12. The mother observed that X began to “exhibit other behavioural problems such as constantly stomping his feet and making continuous droning noises when walking around the home”.[20]

    [20] Affidavit of the mother filed 9/07/2019, par 45

13. In Year 2, in 2016, X’s teacher on several occasions told the mother that X had been difficult and defiant in class. The mother reports that when she told the father what the teacher had said, he responded “Don’t worry about it [Ms Syms], it will be fine”.

14. The mother recalls hearing X saying on one occasion “I hate myself and I wish I was dead”. X would then have been almost eight years old.  

15. The mother was becoming very concerned about his behaviour and asked X, “Has anything happened?”.

16. The child responded as follows, “Some boys are touching each other’s bottoms and penises in the boys’ toilet at school”.

17. The mother does not record her response but her own evidence can only be interpreted as dismissive. In fact, she recorded that X mentioned the behaviour in the toilets to her at other times:

    …X mentioned this to me at other times but his story always changed as to which children were involved. X had used other names at different times, “[AA] and [BB]”.

18. Apparently the mother did not raise the matter with his school, nor did she obtain any professional advice about X’s problems and worries. I conclude that the mother was not sufficiently concerned about X’s reports for her to take any protective action.

19. The mother said she spoke to the father about her concerns about X, although she does not record what she told him or what her concerns were. Her recorded words to the father were “…X’s behaviour is worrying, it’s not right. I do not think it is just normal development”.[21]

    [21] Affidavit of the mother filed 9/07/2019, par 50

20. The mother reports the father as saying, “He’ll be alright, it’s just boys growing up”.

21. One possibility is that the mother had already begun to attribute all X’s problems to abuse by his father. However, it is unclear.

22. The mother may have exaggerated the whole matter of X’s behaviour and disclosures, which seems unlikely given that both parties refer with consistency to those concerns.

23. Perhaps both parents, busy with work and three young children, were not focused on X’s problems at school.

24. I am inclined towards the latter possibility because of what happened next.

Move to Country J in 2016

1. In late November 2016, the parties and the children again left Australia to live and work in Country J. The father had accepted a position which required him to work in Country J. This was to be for a period of three years, concluding in November 2019.

2. The children were enrolled in an international school.[22]

   [22] Affidavit of the mother filed 9/07/2019, par 58

3. For the first three months, until they had permanent accommodation, the family lived in a three bedroom suite in an international hotel. It cannot have been easy. Towards the end of that period the mother described X as having “a massive tantrum”.

4. Her evidence is that X had been “upset about something”. The mother adopted the Peaceful Parenting Principle (learned by her in a parenting course) of validating emotions and showing empathy towards the child. She said to him, “It’s ok to be angry, but I will not let you hurt yourself or anyone else. I am here and you are safe here”.

5. This approach was not productive as X declared loudly and repeatedly that he was “NOT SAFE”.

6. At that point, in late 2016 or early 2017, X told his parents some information which appears to be quite significant. He said he hated FF Primary School (the school he attended in Canberra) and never wanted to go back there. He said he liked his new school because “everyone is nice to me here”. He then told his parents, for the first time, that he had been bullied at school in Canberra, including being attacked by another student in the playground with a shovel.[23]

   [23] Affidavit of the father filed 8/07/2019, par 43

7. The father was not challenged about this evidence. The mother did not refer to it in her affidavit.

8. If the parents or either of them talked to the child to understand how he had been bullied, what had actually happened to him during his three years at school in Canberra (between 2014 and 2016) there is no evidence of it in the affidavit of either of them.

9. There is a real possibility that X was being hurt or abused, or both, at school over a three year period in Canberra.

10. Between February and April 2017, the mother noticed that the children were touching each other on their genitals and bottoms, and speaking about those parts of the body. This was over their clothes during the day but also took place in the bath. On one occasion the mother alleges that she saw X shining a torch on Y’s penis.[24] The children were, by then, aged eight, six and four years. The mother gives no evidence about what she said to X in that moment or, if she did say anything. The mother refers to this behaviour as “sexualised behaviour” which had escalated to the point where it was happening every day in a variety of settings.

    [24] Affidavit of the mother filed 9/07/2019 pars 78-80

11. The mother issued a generalised reproof to all the children, saying:

    Stop behaving in that way. We don’t behave in that way in this family and we don’t touch each other’s bodies in any way.

12. The ambiguous words of the mother were likely quite puzzling to the children. They were in fact behaving in that way, and knew they were, and of course both parents touched the children for a variety of benign purposes all the time.

13. There was no individual discussion with each child, no encouragement to express any worries, nor was there discipline.

14. The actions the mother took instead were to stop bathing the children together and also to order a book from the United States of America called “It’s so Amazing!”.[25] Her evidence is that she read this book “to all three boys on a number of occasions”.

    [25] Exhibit 9

15. In cross-examination the mother conceded that it had probably been a mistake to read the book to Z aged four and Y, too perhaps, who was only aged six. The book rates itself as suitable for ages seven years and up. It covers sexual intercourse, pregnancy, birth, different sexualities, masturbation, HIV/AIDS and adoption, all in considerable and graphic detail.

16. I conclude that the mother genuinely wanted to provide the children with accurate information. She also, in some undefined way, wanted to protect them from harm. However she read the book to the children to teach them what she thought they should know, not because any of them had expressed interest in those topics.

17. I formed the impression that it was emotionally easier for the mother to read the book to the children as a group, than to talk to each child at his own developmental level about what the children were doing with each other and how that child felt about it.

18. In April 2017, the father states that the mother expressed to him her concern that the children’s behaviour was “out of control”.

19. The father believed that the mother’s mental health and wellbeing was in decline. He reports that the mother repeatedly referred to the children as “broken”.[26]

    [26] Affidavit of the father filed 8/07/2019, par 52

20. The mother states that at this time X kept telling her that he was not safe and that something had happened and someone had touched his penis.[27] What the mother did not do, was ask the child who had touched his penis.

    [27] Affidavit of the mother filed 9/07/2019 par 85

21. Although the child did not make any reference to his father, the mother very clearly interpreted his statement and actions to mean that it was his father who had touched him. That conclusion comes from the evidence of the mother, who as a result of the conversation with X telephoned the maternal aunt, Ms P, in Australia. The following exchange took place:

    Mother:Ms P, I’m worried that something might have happened to X. I’m really worried. I’m really scared that [Mr Syms] might have done something.

    Maternal aunt:   Ms Syms, I really think you are barking up the wrong tree there. No. It wouldn’t be [Mr Syms].

22. After that call the mother said she felt reassured that the father had not done anything to X.

23. It is notable that the maternal aunt had ruled the father out, by saying “it wouldn’t be [Mr Syms]” but had not ruled out something having happened to X.

24. It seems probable that the mother had a belief that the father had abused X, which the maternal aunt temporarily reassured her about, but the mother had  not had a fear that X might have been abused by a third party.

25. I am supported in that view by the fact that the mother, having had that reassuring conversation with her sister, did not revert to the child and ask him what had happened and who had touched his penis.

26. From the perspective of X, he had told his mother something, as he had done in the past more than once, with no response from her which was helpful to, or protective of, him.

27. Over the following three months the mother describes a further marked deterioration in the behaviour and happiness levels of all three children.[28] The children were waking before 6.00 am to catch the school bus by 6.40 am. They were all having nightmares, the eldest two children were wetting the bed and Z was soiling his pants. Their behaviour is described by the mother with words such as defiant, emotional and destructive.

    [28] Affidavit of the mother filed 9/07/2019, pars 87-103

28. In mid-2017 when the parties came home for a holiday in Australia they stayed in Queensland in the home of the paternal grandmother. At that time the mother spoke to the paternal aunt about X and Y wetting the bed and Z soiling his pants and used the words “the children are broken”.[29] The paternal aunt tried to reassure her that the children would likely grow out of it. There is no evidence of the mother discussing with the paternal aunt complaints made by the children, especially by X, about genital touching.

    [29] Affidavit of the paternal aunt filed 8/07/2019, par 20

29. During that Australian holiday the mother travelled back to G Town for three days to be with her own father while he had surgery for cancer. The children remained in Queensland with the father and the paternal family. The parties then returned to Country J.

30. It is reasonable to infer that the mother was sufficiently confident in both the father and the paternal family to leave the children in their care for three days.

31. Further, that the mother was then not sufficiently concerned about the father to decline to return with him and the children to Country J.

32. In October or November 2017, Z and Y disclosed to the mother that X had tried to touch them on the penis. Again, there is no evidence of how the mother addressed that report with X.

33. The father alleges that in late October 2017 when he returned home from work, the mother was intoxicated and accused him of abusing the children and speculated that he must have been abused by his own father.[30] The mother apologised to the father about the accusation the following morning.

    [30] Affidavit of the father filed 8/07/2019, par 66

1. In November 2017 the mother says Z complained to her that X came into his bed and kissed his penis. When questioned, X denied doing anything.

2. The mother states that following this incident the parties sat down with the children and had a discussion about touching and personal space.[31] It may not have been the case but the evidence suggests that the two children were treated by their parents as equal players in “naughty behaviour”. At that time Z had just turned five years old and X was nine years old.

   [31] Affidavit of the mother filed 9/07/2019, pars 113-116

3. In her interview with police the mother reported that after that conversation Z had come out of his room one night and said to her “X told me ‘if you tell anyone I’ll kill you’.” The mother’s reaction was to have the thought “Oh God I’ve been right it has happened to X and he’s doing it to Z”.

4. On 14 November 2017, the parties attended (without X) upon a developmental paediatrician regarding X’s behaviours of wetting the bed, preoccupation with bottoms and penises, tantrums and defiance, and his frequent nightmares. X was then referred to an Autism specialist for further assessment.

5. In late November 2017, the mother details an incident at school where X was accidentally exposed to pornography at school in a special education lesson. He apparently saw an explicit photo of a “naked lady bending over” when he was handed an iPad to begin work. The mother states following this incident she discussed with X the “sexual behaviours” that had been happening in the home. The mother alleges that X said to her that he did not know when it started and he did not know when it would stop.[32]

   [32] Affidavit of the mother filed 9/07/2019, pars 121–123

6. On 8 December 2017, the family attended a work Christmas party in Country J.

7. The parties have different versions of that party. The father alleges that the mother began drinking before the party and, whilst there, continued to consume champagne and wine over three hours. When the parties returned home the mother was unsteady, slurring her words and vomited all over herself, which the boys witnessed. The father alleges that during the night the mother was saying things like that she hated her life and she wanted to die.[33]

   [33] Affidavit of the father filed 8/07/2019, par 71

8. The mother agrees she was drinking that night but denies intoxication.[34]

   [34] Affidavit of the mother filed 9/07/2019, par 301

Parties return to Australia 2017

1. In December 2017, the parties and the children returned to Australia for the Christmas holidays.

2. The mother alleges that just prior to them returning to Australia she was discussing with X the conversation they had had in late November 2017 about the “sexual behaviours” in the home. The mother asked the child this question, “was it daddy?”, to which X replied “probably”. The mother alleges the child then became distraught and started to cry.[35] The mother states that following on from this conversation she confronted the father and asked him what he had done to the children. The mother alleges the father then yelled at her and said “What do you mean, don’t be stupid, you are just a fucking bitch”.[36] The father describes himself as vehemently denying the allegations.

   [35] Affidavit of the mother filed 9/07/2019, pars 125-126

   [36] Affidavit of the mother filed 9/07/2019, par 127

3. On 18 December 2017, when staying with the paternal family for Christmas, the father alleges that the mother reversed the car backwards while he was packing items in the boot, knocking him over. The father alleges the mother got out of the car and did not apologise, check if he was okay or explain how it happened. The father was unsure whether the mother tried to deliberately hit him or it was an accident.[37] The mother recalled the incident. There was no clarity.

   [37] Affidavit of the father filed 8/07/2019, par 75

4. On 26 December 2017, the parties and children made the nine hour car journey, by driving all day, from South East Queensland to G Town, NSW. The plan was to spend the next nine days with the maternal family. The mother repeatedly chastised the children for their bad behaviour and asked the father to pull over until the children were absolutely quiet. She repeatedly referred to the children as “broken”.

5. The father thought the behaviour of the children was quite good in the circumstances and was worried about the mother.

6. When they arrived in G Town late that evening, the father shared his concerns with the six members of the extended maternal family individually. He referred to the mother crying a lot recently and saying that the children were “broken”. He asked for help from them for her.

7. On the morning of 27 December 2017, the father relates a conversation with the maternal grandmother who woke him up to tell him that the mother had broken down crying and she was taking her to see her own general practitioner (“GP”). The father said the maternal grandmother said to him, “…Don’t worry you look after the boys”.

8. At that point the maternal family were clearly supportive of the father and concerned about the mother. The children were looking forward to a camping trip with the extended maternal family.

9. The mother attended a medical appointment on 27 December 2018 and again the following day. It is an agreed fact that she was diagnosed with depression. The mother discussed her concerns with the GP that something had happened to X and the same thing had happened to Y.

10. The mother’s GP, Dr N, made a report to the Department of Family and Community Service (“FACS”).

11. The GP referred the mother to a psychologist. The mother had her first appointment with the psychologist, brought forward urgently, on 29 December 2017.

12. On 28 December 2017, the mother also shared her concerns to the maternal grandmother that someone was abusing the children. The maternal grandmother said,[38] she was talking through who it could be, friends, coaches, teachers. The mother remained silent and allowed her mother to guess, by her silence, that her concern was about the father.[39]

    [38] Exhibit 21

    [39] Affidavit of the mother filed 9/07/2019, par 134; Affidavit of the maternal grandmother filed 9/07/2019 par 24

13. I conclude that the maternal grandmother was shocked and surprised but trusted her daughter’s instinct.

14. Thereafter the maternal grandparents were alert to evidence of abuse.

15. The doctor had asked the mother to stay in Australia for six weeks so that he could monitor her health and refer her to a psychologist. The doctor also prescribed her medication.[40]

    [40] Affidavit of the mother filed 9/07/2019, pars 135-137

16. The extended maternal family had a camping trip planned. The father took the children to the camping spot. The father says the mother joined them the next day. The mother asserts it was the afternoon of the first day but medication put her to sleep. Whatever was the case the events were as planned for the children with the maternal family.

17. On 2 January 2018, the mother and the maternal grandmother had an argument. The maternal grandmother took the mother to task for having read a sex education book (“It’s so Amazing!”) to the children.[41] She and other maternal family members reassured the mother that there was nothing wrong with the subject children,[42] and advised her not to overreact.

    [41] Exhibit 9

    [42] Affidavit of the father filed 8/07/2019, pars 87 & 88

Father’s return to Country J - 4 January 2018

1. On 4 January 2018, the father was due to leave for Country J. I conclude that he did so believing that the mother was getting the help she needed. There was an agreed plan for the father to return after six weeks to collect the mother and the children for them all to return to Country J as a family. There was a shared plan for the father to find a suitable psychologist in Country J for the mother to transfer to on her return there.

2. The parties had a conversation on the day he left which suggests trust and a degree of closeness:

   …Ms Syms and I discussed again Ms Syms’ issues with what she perceived as the boys “out of control” behaviour, that they were “broken” and Ms Syms’ belief that the boys grabbing and hitting each others’ (sic) private parts was “a sign that they had possibly been abused”. Ms Syms said “I’m sorry that you thought I was accusing you, I don’t think that, but I told my psychologist that I thought the boys had possibly been abused. I didn’t accuse you, but I had to report it”.[43]

   (Original emphasis)   

   [43] Affidavit of the father filed 8/07/2019, par 93

3. The father returned to Country J via Queensland to see the paternal aunt. He explained to her that the mother had been diagnosed with depression and that she and the children would stay on for six weeks for her treatment before returning to live with him in Country J.[44]

   [44] Affidavit of the paternal aunt filed 8/07/2019, par 32

4. On 8 January 2018 the mother advised the children’s teachers in Country J that they would be staying in Australia and requested that the children’s school work for the forthcoming six week period be forwarded to her while they were in Australia.[45]

   [45] Affidavit of the mother filed 9/07/2019, par 141

5. Thereafter, the mother began a course of action akin to a mission to establish that the children had all been sexually abused by the father.

6. The maternal grandparents joined her, and became convinced that the father, whom they had so much valued as a son-in-law, was in fact an incestuous paedophile.

7. In mid-January 2018, the maternal grandmother alleges that when she went to check on the two youngest children having their evening bath, she heard Z tell Y, while they were playing with the plunger from the hand wash in the bath, he would put this needle in Y’s “butthole” and it would feel nice. The maternal grandmother states that she was shocked, left the room and did not say anything to either child.[46]

   [46] Affidavit of the maternal grandmother filed 9/07/2019, pars 61-64

8. The mother alleges that a few days later she saw Z and Y touching each other on their penises, Y then told the maternal grandmother that they were wrestling and Z said to the maternal grandmother that it was just a “different type of relationship”.[47]

   [47] Affidavit of the maternal grandmother filed 9/07/2019, pars 97–99

9. On 6 February 2018, the father was informed via a message received from the mother that she was taking Z to a doctor to enquire about why he was soiling his pants and X to a child psychiatrist to enquire about a diagnosis of Attention Deficient Hyperactivity Disorder (“ADHD”) or the like.[48]

   [48] Affidavit of the father filed 8/07/2019, par 100

10. On 7 February 2018, the mother took Z to the GP as he was still having trouble opening his bowels. The GP prescribed the child medication.[49]

    [49] Affidavit of the mother filed 8/07/2019, par 143

11. On 13 February 2018, the mother took the children to see Dr F, a psychologist. The psychologist reported to the mother that Y had informed her that “something had happened at school with H”.[50]

    [50] Affidavit of the mother filed 9/07/2019, par 145

12. The mother was completely dismissive of that information and annoyed with Y. On her own evidence (in police interview) she later challenged him: “Y why did you say it was H? You’ve never mentioned that before!”

13. The mother states that as she and the maternal grandmother were driving the children home from the appointment Y and Z started playing with each other’s penises in the backseat. I infer that they were grabbing or hitting each other in the genital area.

14. It is a matter of some significance that the maternal grandmother[51] explained that the children had their clothes on and the touching was on top of clothes.

    [51] Exhibit 21

15. The maternal grandmother stopped the car and she informed the children about the rules of not touching each other’s penises or keeping secrets. The mother states X then said to her that he could tell the maternal grandmother the secret but not her. The maternal grandmother and X got out of the car and X was crying.

16. The mother alleges that after the conversation between the maternal grandmother and X, the maternal grandmother told her “It was [Mr Syms]”.[52] 

    [52] Affidavit of the mother filed 9/07/2019, pars 147-150

17. The maternal grandmother had a conversation with the boys at a local park in G Town, where they told the maternal grandmother what happened. The maternal grandmother states that the boys informed her that it happened in Canberra and Country J, and that it was the same person. The maternal grandmother alleges Z then said “Daddy has taken me to a secret place in the cupboard, in the suitcase. He would cuddle me and touch my penis”. The maternal grandmother said Y then approached her and said that it was nice but it was wrong. The maternal grandmother alleges X told her it was dad. The maternal grandmother states she then told the mother it was the father. [53]

    [53] Affidavit of the maternal grandmother filed 9/07/2019, pars 76–87

18. On 15 February 2018 the father states the mother messaged him about withdrawing money from their home loan to pay off a credit card. When he asked to speak to the children, the mother stated that they were with the maternal grandparents in G Town for the night and she was with a friend in C Town.[54]

    [54] Affidavit of the father filed 8/07/2019, par 102

19. Between 16 February and 20 February 2018, the father states he tried to contact the mother on multiple occasions to speak to the children but received no response. He also contacted the maternal grandfather and maternal aunt with no response.

Separation of the parties

1. On 20 February 2018, the mother called the father and advised him that neither she nor the boys were coming back to Country J. The father states that the mother told him that if he came near her or the boys again she would call the police.[55] The mother then withdrew $10,000 from the parties’ home loan account.

   [55] Affidavit of the father filed 8/07/2019, par 108

2. In 23 February 2018, the mother states she spoke with an officer from C Town Police Station.[56] On that same day the mother alleges that Y told her that “Dad would touch my bottom at night time”. The mother alleges Z then demonstrated how his father would smack his bottom by standing up and slapping his right bottom buttock with his opened hand in a slapping motion. The mother alleges that Z then further stated that the father kissed his penis three times while the boys were at basketball.[57]

   [56] Affidavit of the mother filed 9/07/2019, par 153

   [57] Affidavit of the mother filed 9/07/2019, par 154

3. The maternal grandmother alleges that after the mother returned home from C Town Police Station, the maternal grandmother said to the children “who will be brave enough to tell Mum exactly what happened?” Y put his hand up. The maternal grandmother states Y said that the father,[58] slapped him on the bottom, touched his “butthole” and also rubbed Y’s “nuts”, and Z said “it happened to him too”.

   [58] Affidavit of the maternal grandmother filed 9/07/2019, pars 88-91

4. Prior to the children going to bed that day, the maternal grandmother stated that she and the mother took the children to a park in G Town so they could run around and play on the play equipment.[59]

   [59] Affidavit of the maternal grandmother filed 9/07/2019, par 93

5. The single expert, Dr M, refers to the “G Town park incident”. Dr M states that the mother told her after this conversation that she and the maternal grandmother took the boys to the local park at G Town where they could say some swear words, and that the boys were running around in the dark with lanterns swearing about the father. The mother states she and the maternal grandmother did not participate and after 15 minutes the behaviour ceased. The mother told Dr M that she had formed the view that it was better for the children to get these emotions out instead of holding them in.[60]

   [60] Single Expert Report dated 29/03/2019, par 77

6. My impression of both parties and the maternal grandparents is that they are all quite strict about manners and language.

7. To allow the children to behave in that way must have sent a strong message that the father was suddenly no longer a valued or respected member of the children’s family.

Father returns to Australia

1. On 25 February 2018, the father returned to Australia and travelled straight to the holiday accommodation he had booked in R Town.

2. On 26 February 2018, the father drove to G Town. He attended G Town Police Station and spoke with a police officer about attending the home of the maternal grandparents. The father was informed by the police officer, after the officer had attended the maternal grandparent’s home and spoken with the mother that the father could go to the home, as she had said “it was okay for him to come over”.

3. When he arrived at the house the mother told the father that he could spend time with the children however they could not be alone with him.

4. It is not in dispute that the children were very excited to see the father. The father felt it was obvious that the children had missed him.

5. The mother states that she informed the father that “there was no boys’ secret anymore” and the father in a raised voice then asked her what was going on. The mother responded, "you know what you’ve done and you know why”.[61]

   [61] Affidavit of the mother filed 9/07/2019, pars 157-164

6. The maternal grandmother affirmed that she then held the father’s face and told him that he had “made such a mess of everything”.[62]

   [62] Affidavit of the mother filed 9/07/2019, pars 157-164; Affidavit of the maternal grandmother filed 9/07/2019,  pars 30-41; Affidavit of the maternal grandfather filed 9/07/2019, pars 23-37

7. The maternal grandfather concedes that he called the father a “paedophile” and said that the children’s secret was out. The maternal grandfather informed the father that the mother and the children were not returning to Country J.

8. The maternal grandparents then invited the father to have dinner with them.[63]

   [63] Affidavit of the mother filed 9/07/2019, pars 157-164

9. The father alleges that the children gave him two pieces of paper with wood splinters taped on them which Y and Z wished for the father to see how brave they are. The father states he then went to write the boy’s names on the pieces of paper however the maternal grandmother than ripped up the paper in front of the boys and started screaming that they were only pieces of paper.

10. The father alleges that this caused the boys to start crying with the mother telling the maternal grandmother to “leave it, as it won’t help our case”.

11. When the father left he said the children were sad to see him go and said they loved him.[64]

    [64] Affidavit of the father filed 8/07/2019, pars 114–137

No time and communication for a period of seven months

1. On 27 February 2018, the mother enrolled the children at G Town Primary School.

2. On 28 February 2018, the mother informed the father, based on advice she received from her solicitor, she was not making the children available to him before he returned to Country J.

3. Therefore, contact between the father and the children ceased until late September 2018.

4. On 2 March 2018, the father was at a shopping centre in C Town with his sister when he saw the mother and the children. The father alleges that the mother would not allow the children to speak to him and the children attempted to run towards him but the mother restrained them.[65]

   [65] Affidavit of the father filed 8/07/2019, par 143

5. On 3 March 2018, the father took leave from work and returned to Australia, moving in with the paternal grandmother at K Town, Queensland.

6. On 7 March 2018, the two youngest children were playing in the maternal grandmother’s bedroom when the maternal grandmother overheard Z say to one of his stuffed toys “Don’t worry, it will sting you with joy”, Y then turned to the maternal grandmother and said “What he means is it will hurt but it will be nice”.[66]

   [66] Affidavit of the maternal grandmother filed 9/07/2019, par 94

7. On 12 March 2018, the mother attended GG Town Police Station and made an official statement. She then attended an appointment with doctors at the Sexual Assault Clinic in C Town. The mother explained to them that she had been told by FACS that the children would not be interviewed, that there was not a lot of clarity around what they were saying. As a result a date for interview of the children in April 2018 was appointed.

Children begin sexual assault counselling

1. On 16 March 2018 the children were referred to the C Town Sexual Assault Service. The mother was seen with the children and separately by doctors at the service . The maternal grandmother attended at the service. The father was not seen. The children continued to attend for counselling for six months.

2. There is reference in the notes of the service[67] as to why the service would not meet with the father “[C Town SAS] have declined to meet with the father (alleged perpetrator (sic)) due to coming from a place of belief”.

   [67] Exhibit 14

3. The difficulty with that position is that the commitment to believing the children, was to ignore the dispute between the parents in this Court as to whether there had been any sexual abuse at all. Effectively the service accepted what the children and the mother said, but ignored the possibility of helpful information coming from the other parent, the father. Although the father is referred to as the “alleged perpetrator” the approach taken was to accept allegations as truth. The risk being ignored was that the children might be counselled for abuse which didn’t in fact occur. The counselling was brought to conclusion for those reasons by Court order in September 2018.

4. On 31 March 2018, the maternal grandmother alleged that she saw Z insert his finger into his own anus. X is then alleged to have said to Z that he was sorry that he had to learn that.[68]

   [68] Affidavit of the maternal grandmother filed 9/07/2019, pars 95-97

5. On 8 April 2018 the maternal grandmother alleged that Y and Z were wrestling and Z was trying to kiss Y’s lips.[69]

   [69] Affidavit of the maternal grandmother filed 9/07/2019, pars 100 & 101

6. On 18 April 2018 the solicitor representing the mother informed the solicitor for the father that X and Y had told the mother that the father had inappropriately touched them.

7. The father states he then was informed that the mother had reported these disclosures to the police and an Apprehended Domestic Violence Order (“ADVO”) would be applied for if the father approached her or the children. The father states he had not been contacted by the police in regards to the allegations.[70]

   [70] Affidavit of the father filed 8/07/2019, par 146

Children interviewed by JIRT - 23 April 2018 (the first round of interviews)

1. On 23 April 2018, the children were each interviewed by JIRT.

2. Z, aged five, seemed quite uncertain at first, frowning and pausing.

3. He volunteered “My Dad and my Mummy used to fight...yelling at each other”.

4. He described wrestling with his brothers, “We punch. We all punch each other.”

5. Led by “Did you ever tell your mother something Dad did with you?” Z described a boat game “The bed is the boat and the floor is the sea. We pretend we have diving gear.” He otherwise described enjoyable activities with his father and brothers.

6. After speaking of fighting with his brothers Z described his mother saying “Stop!” (“and every day we don’t stop”).

7. When asked when he was going to see his father Z said “we are not going to see him forever. How that made him feel was “sad.”

8. There was nothing said by Z which would give rise to a finding of abuse by the father.

9. Y, aged seven, appeared hesitant and stared at the interviewer’s face, perhaps for cues.

10. Y made statements suggestive of abuse “He was doing stuff our Mum didn’t know so we had to tell our Mum” and “He was touching our penises and all that rude stuff. Smacking bottoms until we cried”.

11. From there Y did not seem to know any detail. He could not say what happened, “I actually don’t know the answer”. He did say “We would all touch each other’s penises because he did that to us”. He was clear to say the touching was on top of clothes.

12. Y later made the statement “We would start doing wrestling and start touching penises to get them down.”

13. The description suggests children “cheating” in a wrestling game, going for the genitals of another child so he would fall to the mat and lose.

14. Y did not appear to be describing abusive events which had happened to him.

15. X, aged nine, appeared downcast, vague, uncertain and sad.

16. When asked whether he knew why he no longer lived with Dad he said he did not want to tell.

17. He was re-assured that he would not be in trouble. He replied “I know” and did not appear to be frightened at all.

18. When pressed about what he had told people about Dad (his mother, his grandparents, the psychologist “Dr [F]”) X said “that he wasn’t a nice person”.

19. When he was pressed for the meaning of those words X remained silent twiddling his fingers.

20. After a few questions with no response, X was offered the opportunity to write down what had happened.

21. He appeared to be uneasy and reluctant. He wrote down “He touched our penises”. He declined to say more.

22. Pressed, he said clothes were on, nothing had been said before or after and when asked how long it went on for said “a really long time.” It had happened in Canberra.

23. I formed the impression that X was feeling pressured and trying to do the right thing. I am not confident that he knew what that right thing was.

24. The mother states that following these interviews she was told by JIRT officers that Z knew something had happened but did not say what, Y said what happened involving wrestling on the bed with clothes on and the touching of penises and X was traumatised but did not open up.

25. The mother was not reassured or pleased. On her own report she asked “Well what’s happening now?” The officers said words to the effect “leave it to us –you’ve got to let us take it from here”. The mother says she cried in front of the officers.

26. The mother then drove to her sister’s house in Suburb EE. She became upset cried and yelled at the children, “I have spoken to the people I need to, to keep you safe, but you didn’t talk to them. I know things have happened to you, you have told me things have happened to you”. [71]

    [71] Affidavit of the mother filed 9/07/2019, pars 174-182

27. The children could not have been in any doubt that their mother was angry and disappointed with them.

28. The mother states that when they arrived with the children at her sister’s house the maternal grandmother was there, and she too said to the children, “We can’t keep you safe if you don’t tell people what happened”. The mother states X then told the maternal grandmother that he did not want to go back to Country J, “I need another chance to talk”.[72]

    [72] Affidavit of the maternal grandmother filed 9/07/2019, par 110

29. The maternal grandmother  described the mother’s state after the interviews:

    She was in a terrible state. Absolutely beside herself. So much hinged on that interview. She was almost screaming “I’ve got to get out of here”.[73]

    [73] Exhibit 21

30. I conclude that X understood that he had to do something to meet his mother’s expectations to avoid further trouble.

31. At the suggestion of the maternal grandmother, the mother went for a walk along the beach. When she returned she was handed a handwritten note by X. The note was the story of each child being born and being touched on the penis by the father.[74] The note was first handed to the maternal grandmother while she was on the telephone to JIRT while the mother was out. X must have felt desperate to put things right.

    [74] Affidavit of the maternal grandmother filed 9/07/2019, pars 105-113

32. However genuine the mother’s belief in the abuse of the children it is clear that she was quite unable or unwilling to understand her own impact on the children. They must have known that she “had to get out of there” because of them and their “bad” interviews.

33. It is also clear that the mother did not contemplate for a moment that her fears might be just that, fears, and that nothing abusive had in fact, occurred.

Proceedings commenced in the Family Court of Australia - May 2018

1. On 14 May 2018 the father commenced proceedings in the Family Court of Australia seeking on a final basis that the parents have equal shared parental responsibility but sole parental responsibility for day-to-day decisions while in their respective care, for the children to live with him and for them to spend time with the mother as determined by the Court.

2. The father’s Notice of Risk filed the same day made no allegations of abuse, however it outlined the allegations made by the mother about him. He denied wrongdoing.

3. On 1 June 2018, the mother filed her Response seeking on a final basis that the parents have equal shared parental responsibility but sole parental responsibility for day-to-day decisions while the children are in their respective care, that the children live with her and spend time with the father as determined by the Court.

4. On 6 June 2018, orders were made by a registrar allocating the matter into the Magellan Protocol, with associated procedural orders such as appointing an ICL and ordering the preparation of a Magellan Report.

5. On 6 June 2018, the mother filed a Notice of Risk alleging that the father has sexually abused the children.

6. On 21 June 2018, the children commenced seeing a counsellor at the Suburb HH Sexual Assault Clinic.[75]

   [75] Affidavit of the mother filed 9/07/2019, par 194

Release of Magellan Report - July 2018

1. On 6 July 2018, the Magellan Report was released. Allegations of abuse were categorised as unsubstantiated.

Mother amends her Response – 3 August 2018

1. On 3 August 2018, the mother filed an Amended Response seeking orders on a final basis that she have sole parental responsibility, that the children live with her and the father be restrained from spending any time or communicating with the children.

2. On 13 August 2018, orders were made by consent appointing a single expert to prepare a report.

3. On 18 September 2018 separate police interviews were conducted with the mother and the maternal grandmother. The interviews were wide-ranging and thorough.

Children interviewed by the Australian Federal Police on 19 September 2018 (the second round of interviews)

1. On 19 September 2018 the three subject children were interviewed at school by the Australian Federal Police:

2. Z, aged five years, presented as lively, confident, outgoing and articulate.

3. When asked about his father Z said; “He had to go back to Country J”.

4. He then volunteered “I’ll tell you a bad story”. It was as follows. “We were wrestling on Mum and Dad’s bed. X kicked me off the bed. I had blood all over my face. I was crying”.

5. Z thought he would see his father again soon. There was nothing about his father he did not like. He could not recall not feeling safe. He missed his father. He had no secrets. He thought his brothers had lots of secrets “but they don’t tell me”.

6. Z appeared to enjoy the interview and to be light hearted throughout.

7. Nothing that Z said could give rise to a finding of abuse by the father.

8. Y, aged eight years, presented as friendly confident and bright.

9. He described he and his brothers: “we fight nearly all the time” and “X always fights with me and tells me to get out of his room”.

10. Y explained that they went to Country J because his father had a job there.

11. In answer to the question do you see him here, he said with some emphasis “Nooo”. He also said he was happy about that.

12. Asked what his father was like, Y said “he was mean” and the mean thing he did was “woke us up early to go to school-I like to stay up to midnight”.

13. He also said “he has this enormous job” and confirmed that he meant his father was often away.

14. He described his father playing the Tickle Monster Game, and wrestling, but Mum told them off for that “stop wrestling”.

15. Pressed, Y said his father had done something to us in a bed: “Whacking us all the time in different places. One at a time. Then took us back to bed. We went to sleep crying”. He was clear to say that happened once.

16. Y denied missing his father. He said his mother does not like his father.

17. Y was conscious that his father was unpopular with the maternal family.

18. What makes him unhappy is “getting pushed off the couch.”

19. Nothing that Y said would give rise to a finding of abuse by the father.

20. X, aged nine years, presented as reserved, considered, polite and less confident than his younger brothers.

21. As the oldest, and almost ten, X understood that the family had come back early from Country J because there was “a problem with Mum and Dad”.

22. He agreed that he did not see his father, and in response to how he felt about that he said “It’s a bit sad but it is nice up here because it’s not loud”.

23. He knew his father was not in Country J: “Dad is with Nanna [the paternal grandmother] I think.”

24. When asked what was cool about being a big brother X answered “I feel responsible”.

25. He spoke very affectionately about his mother and maternal grandmother, described his maternal grandfather as “a little bit grumpy. He reads books like me”.

26. About his father X gave uncertain answers:

    Q: What do you love/like about him?

    A: I’m not sure.

    Q: Will you see him again?

    A: Don’t know.

    Q: Do you want to?

    A: Don’t know.        

27. When questions came about whether anything unsafe had happened to him X became flushed and appeared anxious.

28. He agreed something had happened, it was in Country J, and he had already told Mum and the special people in C Town (sexual assault counsellors).

29. His response to the question “What happened?” was: “My Dad touched our penises”. He did not remember the first time it happened, “it was gross he did it when I was sleeping and stuff.”

30. Asked about anything else happening he said “he did poke his hand up our bottom, all four fingers. All of us”.

31. He denied that his father had asked him to touch his penis.

32. His description of what happened was “He just said ‘Come here, come into the bedroom’. He touched our penises”. X said he was wearing pyjamas.

33. X seemed puzzled when asked how long his father had touched his penis for and answered “a couple of seconds”.

34. He appeared to be struggling with how to answer:

    Q: What did he do?

    A: He’d just stand there.

    Q: Where?

    A: In all different places.

    Q: Where was he standing?

    A: I don’t know.

    Q: How did he touch it?

    A: What do you mean?

    Q: What did he do with his hand?

    A: He touched on our penises.

35. X was asked at the end of the interview how it would “make him feel to see Dad?” He said he did not know.

36. I had the clear impression that X was not describing a remembered event or events but was intent on stating the words “he touched our penises”.

37. I do not consider that X was making a spontaneous disclosure of abuse. First, because he did not to any extent appear to be describing something that had really happened to him. Second, because this was his second formal interview. Third, because he had already been questioned by his mother and grandmother and counselled by sexual assault counsellors on the basis that he was the victim of assault.

Interim orders determined September 2018

1. On 21 September 2018, interim orders were made for the reasons given on that day.

2. The orders provided for the children to live with the mother, and the father to spend time with the children from 9.00 am to 4.00 pm on both days of each alternate weekend in the R Town or C Town area supervised by the paternal aunt.

3. Orders were also made enabling the father to have telephone communication with the children each Tuesday and Thursday.

4. The children’s counselling with the C Town Sexual Assault Service and E Psychology were ordered to be brought to conclusion. The mother was able to engage a psychologist for the children on the condition that both parents were consulted and involved in the process.

5. The mother chose not to take that course immediately.[76] The children began seeing a psychologist with input from both parents in May 2019.

   [76] Single Expert Report dated 29/03/2019, par 73

6. On 23 September 2018, the father began spending time with the children, supervised by the paternal aunt after a period of seven months without contact.

7. On this first occasion the children were excited and pleased to see their father and the paternal aunt. They asked about future trips to Queensland to see the rest of the paternal family.

8. I consider that this happy reaction probably reveals an expectation by the children that things were becoming a bit more normal and they would now be able to see their father and visit their extended paternal family as they had done in the past.

9. On 24 September 2018, the father states he was contacted by Senior Constable T of the Australian Federal Police investigation unit in Canberra, stating they had interviewed the mother, the maternal grandmother and the children in relation to the allegations. The father states that he was informed that there was no substance to the allegations.[77] That would be the interpretation of the father but it was the case that no further action was considered necessary.

   [77] Affidavit of the father filed 8/07/2019, pars 169 & 170

10. The mother alleges that around this time, when her sister Ms P had visited them from North Queensland with her children, the mother’s niece S said that she had been tickled on the bottom by Z. The mother states that her sister and her children left to stay with their other sister in Suburb EE. The mother referred to this as “her worst nightmare, that the subject children would start doing this to other children”.[78]

    [78] Affidavit of the mother filed 9/07/2019, pars 198 & 199; Affidavit of the maternal grandmother filed 9/07/2019 pars 135-138; Affidavit of the maternal grandfather filed 9/07/2019, pars 43-48

11. On 13 October 2018, the mother alleges that X said to her “Dad said if we talked about this, he would kill us and that you would go to gaol Mummy”.[79]

    [79] Affidavit of the mother filed 9/07/2019, par 204

12. On 21 October 2018, the father states he tried to give some clothes and other items for the children to the maternal grandfather but was told that the maternal grandmother did not want any items from the father in the house.[80]

    [80] Affidavit of the father filed 8/07/2019, par 173

13. In late October 2018, the maternal grandmother alleges that Z began masturbating.[81]

    [81] Affidavit of the maternal grandmother filed 9/07/2019, par 149

14. On 2 November 2018 the mother states that after a weekend visit with the father, and after the boys had a bath, Z came into the bedroom looking for pyjamas. The mother states when she was assisting him to dress she noticed that he was very red around his anus. The mother took a photograph of Z’s bottom with her mobile telephone and the maternal grandmother applied some cream.[82] The mother states she was aware that the children had been to the beach but the rash did not look like a sand rash. She states she regularly cleans and wipes Z’s bottom as he has issues with his “poo”.

    [82] Affidavit of the mother filed 9/07/2019, pars 215 & 216

15. The mother alleged that the father was left alone with Z during the visit.[83]

    [83] Affidavit of the mother filed 9/07/2019, pars 217-219; Affidavit of the maternal grandmother filed 9/07/2019, pars 157-160

16. On 15 November 2018 the father states the mother wished to drive to Queensland to collect the children’s bikes one weekend. The father states he suggested that the children spend one weekend with him in Queensland instead of C Town and that he would pay for it, the mother refused and ended up not collecting the bikes but buying new bikes for them for Christmas.[84]

    [84] Affidavit of the father filed 8/07/2019, par 174

17. On 15 December 2018 the father spent time with the children at the beach. The father states that when the children returned the next day for their visit they told the father that the maternal grandmother examined their bottoms the night before. The father alleges that Y said to him “Grandma says the rash on Z’s bottom was not from the sand in his wet swimmers. She said that was rubbish and that you had done it”. The children further said that they tried to tell her that it was not true but she did not believe them. The father states he assumes that Z got some sand in his swimmers the previous day but he did not mention it to the father. Later that day the father alleges that the children informed him that the mother told them that the Court would not let them spend Christmas with him, that they will never be allowed to live with him, that he only wanted to take them to Dream World to make them live with him, that he abandoned them and that he did not love them.[85]

    [85] Affidavit of the father filed 8/07/2019, pars 176-177

1. The father thereafter committed to remaining in Australia and putting his employment on hold. He was thrown off balance emotionally and appropriately sought professional help.

2. Since his Initiating Application to this Court in May 2018 the father has behaved with restraint. He accepted the necessity of supervised contact for the purpose of interim orders.

3. Despite having no time with the children for seven months, the father appeared to accept that the mother believed unreservedly that he had repeatedly sexually assaulted all the children, at least since 2015, if not even earlier, and that the nature of the assaults had become more violent, intrusive and cruel during daytime visits that were supervised by his sister.

4. The father was forthright with his view that the mother and the maternal grandparents had “brainwashed” the children into believing that he was abusive and had hurt them.

5. Nevertheless in answer to a question from me about his attitude to the conduct of the mother the father said words to this effect:

   I think she is doing what she thinks is right to protect the children. I can’t fault her for that.

6. The father became concerned about the mental state of the mother, at least in 2017, but probably under-estimated the extent of her distress and what was ultimately diagnosed as severe depression in December 2017.

7. Importantly, the father appears to have understood why it is that the children have behaved so inconsistently. They reveal love and affection for him physically and verbally when they are with him, but make allegations of assault and also derogatory comments about him to the mother and the maternal extended family in his absence.

8. I accept that the motivation of the father in his application for a change of residence for the children is protection, love and affection.

9. That does not obviate the reality of the comparative inexperience of the father as a full-time single parent.

The Paternal Aunt – Ms B Syms

1. The paternal aunt, aged 44 years, was somewhat nervous at first but was clear in her responses.

2. The paternal aunt has sacrificed time with her own family in order to assist the father to spend time with the children. She has a partner and three children aged between 16 and 11 years old.

3. Between 23 September 2018 and 5 May 2019, the paternal aunt accompanied the father from South East Queensland to C Town to see the children, every second weekend with the exception of one. When the orders were then changed by consent to both days of one weekend each month, she continued to assist.

4. On one occasion the paternal aunt brought her three children down for the visit and the children were happy to see their paternal cousins. However, as time went on tension developed.

5. I concluded that the paternal aunt has felt very much hurt by remarks the children have made during her supervision of their time with the father. The children began calling both her and the paternal grandmother by their first names only. X called his paternal aunt a “freak” when she looked at him She has concealed her feelings for their sake and that of the father.

6. The paternal aunt describes a long standing, close and affectionate relationship between the two families through family holidays and special occasions spent together.[117] She described the mother as “a kind and loving mother” and the father as “a very caring and attentive father”.

   [117] Affidavit of the paternal aunt filed 9/07/2019, pars 7-14

7. The paternal aunt described the children as having been “always very affectionate, polite and respectful towards me”.

8. In January 2019, at a changeover, there was a conversation between the parties about various possessions they left in Country J.

9. Attempts by the paternal aunt to lead the children away from the discussion were thwarted by the mother and the maternal grandfather. In the presence of the children, the paternal aunt heard the maternal grandfather call the father a “typical paedophile”. She described the children as looking dumbfounded.[118]

   [118] Affidavit of the paternal aunt filed 9/07/2019, par 53

10. The paternal aunt was challenged with the proposition that the maternal grandfather had used only one word “typical!”. She was very clear in rejecting that and I accept her evidence. I do so for two reasons. Firstly, because it is an agreed fact that the maternal grandfather had called the father a paedophile in February 2018. Secondly, because the overall evidence of the paternal aunt was almost entirely unchallenged. I accept that she was a reliable and truthful witness.

The Mother

1. The single expert assessed the mother as “intelligent, sociable and empathic”. But also that “She presents as torn”.

2. Those observations accord with my own observations of the mother giving evidence. Although her anger with the children when they failed in her view to report abuse as they should have, did not seem particularly empathic from a lay perspective.

3. The single expert went on to say that underlying that presentation was “a fixed rigid belief system refusing to believe that it could be true [that no abuse had occurred]”.

4. I note that there were times throughout the trial when the mother appeared distressed, puzzled and irritated by questions of her or the father which tended to suggest innocent explanations for events which the mother believed to be sinister.

5. I had the impression that the mother wanted to present as a person with an open mind and to conceal deadly certainty.

6. An example of this is when counsel for the father asked the mother about Z, who was in July 2017 soiling his pants:

   Q: Do you look back and link it to abuse?

   A: No I cannot make a definitive conclusion.

7. The emphasis on “definitive” and the body language of the mother suggested certainty.

8. Another example is in relation to the agreed fact in October 2017 where the mother, after drinking with friends in the afternoon, had accused the father of abusing the children by saying, “you’ve done something” and had then said to him “I bet that your Dad abused you, didn’t he?”.

9. The next day the mother retracted that statement and apologised to the father. The paternal grandfather had died before the father had met the mother.[119]

   [119] Affidavit of the father filed 8/07/2019, par 66-68

10. The following exchange took place during cross-examination:

    [COUNSEL FOR THE FATHER]: Any reason (for saying) that?

    [THE MOTHER]: No.

    [COUNSEL FOR THE FATHER]: Had you been researching the subject?

    [THE MOTHER]: I had looked on the Internet about it. Symptoms of sexual abuse. Why abusers abuse.

    [COUNSEL FOR THE FATHER]: Pretty hurtful allegation.

    [THE MOTHER]: Terribly hurtful.

    [COUNSEL FOR THE FATHER]: [Mr Syms] said it was untrue? Do you believe him.

    [THE MOTHER]: …[Pause]…

    [COUNSEL FOR THE FATHER]: In your mind it’s not free from doubt?

    [THE MOTHER]: No.

    [COUNSEL FOR THE FATHER]: Might have lied about that too?

    [THE MOTHER]: I don’t know.

11. My impression was that the mother was somewhat regretful about hurting the father but was able to excuse herself because she had had to find out why, not if, he had abused the children. Again, her certainty that he had abused the children was on display.

12. In her interview with Police on 18 September 2018 the mother spoke joyfully of the parties 3 and a half years in Country L as a very happy time. By the time the parties had moved to Country J in 2016 the mother referred to the relationship between the father and herself in this way, “We hadn’t been connecting emotionally for quite a while”.

13. This accords with the evidence of the maternal grandmother in September 2018 to police about the mother. ”Over the last two years [Ms Syms] not bright bubbly and happy any more. Didn’t appear to be happy.”[120]

    [120] Exhibit 21

14. The maternal grandmother also reported that during the past three years the mother had said to her parents that “parenting should not be as difficult as it was for her”.

15. The children attended a school in Country J which started early. They were collected by bus at 6.30 – 7.00 am travelled for 40-60 minutes. The two older ones returned by bus about 4.00 pm.

16. Because Z was at pre-school (for half a day) the mother was required to drive to the school to collect him each day. The father described her as being stressed by those trips.

17. Both parties and the maternal grandparents all agree that by December 2017 the mother was in a terrible state. The maternal grandmother gave this description to police “She was distant, very very distant from everybody even the boys, crying very easily.”

18. Given the diagnosis by Dr N of severe depression in December 2017, it is reasonable to infer that the mother’s mental health had been declining over time.

The Maternal Grandmother – Ms DD

1. The maternal grandmother presented as assertive, definite in her views and vehement in her support for the mother.

2. That is not to say she did not make some concessions.

3. One example arises from the attendance in 2018 of the children on a psychologist Dr F. The psychologist reported to the mother that Y had said “H [a child at school] had touched him on the penis”.

4. The maternal grandmother agreed that the mother had straightaway accused Y of lying because she knew the family of H and that Y had only been to their house once. By inference therefore what Y had said could not be true.

5. The maternal grandmother agreed that there had been no consideration by the mother of Y being truthful, saying “No, maybe not”.

6. She also conceded that the reaction of the mother might have been hard on the child, saying that it “Could be”.

7. In another context, the maternal grandmother conceded that together, she, the mother and the maternal grandfather had talked about what had happened with the children before affidavits were drafted.

8. The maternal grandmother said that after the mother’s mental health had improved as a result of anti-depressants and counselling she had returned to her old self, describing her as “happier and more relaxed”. Of great significance was the additional statement, “and the children’s behaviour settled down”.

9. She also said that after the interim parenting orders were made in September 2018 the mother became more anxious again and the children’s behaviour became worse again.

The Maternal Grandfather – Mr Q Syms

1. The maternal grandfather was as supportive of the mother as his wife.

2. The maternal grandfather came to the conclusion within days (in December 2017/January 2018) that the father was a paedophile.

3. He was confirmed in that view by the 20 second delay in response by the father when the paternal grandfather made the paedophile accusation when the father came to the home in February 2018.

4. He agreed that nothing would change his view about that.

5. Consistent with that position, the paternal grandfather accepted as truthful, the reports made by the children that they had been sexually assaulted by the father during supervised visits at the beach: “I believe the boys may have embellished but I believe it has happened.” 

6. I conclude that the maternal grandfather attributes all bad behaviour by the children to the malign influence of the father.

7. I also conclude that at times when the children are pulled up for misbehaviour, they use the father as a scapegoat, for example, Y saying “dad had told him he didn’t have to obey his [maternal] grandmother”.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The parties themselves understand that despite their ability to articulate decisions to be made for the children and their demonstrated capacity to meet the needs of the children in a co-operative way, they cannot share parental responsibility.

2. Each parent now asks the Court for an order for sole parental responsibility.

3. The mother’s beliefs and actions must mean that she has come to consider the father to be a deceptive, predatory, sexual abuser of his own children.

4. The father’s beliefs and actions must mean that the father has come to consider the mother to be deluded and emotionally manipulative of her own children.

5. Trust between the two parents may never return.

6. Whoever the children live with will be the long term decision maker.

Primary Considerations

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

1. The children do have meaningful relationships with both parents presently.

2. X is slipping away from his father under the pressure of constantly reporting abusive treatment of himself by the father. He described his mother as ‘‘perfect for me”.[121] He was able to say that he liked his father taking him and his brothers to the beach, to his apartment and to see a movie.

   [121] Single Expert Report dated 29/03/2019, par 136

3. Y appears to be less affected. He chose the family dog as the family member he got on with best. He said he had been bugging the father to take him to one of the “Worlds” on the Gold Coast. He thought the beach is the only place his father knows about to take them. It is to the credit of the father that Y does not understand why time and venue is so restricted.

4. Z was least affected. His best relationships were with the family dog and his mother. Z said he liked having a fun time with his father. He explained that the maternal grandmother had told him that his father “was not helping Mummy about giving her money (sic)”.[122]

   [122] Single Expert Report dated 29/03/2019, par 176

5. He wanted his father to take them all to Fighter World.

6. It must be the case that if the children continue to live with the mother they will adopt her view and reject their father.

7. That would not necessarily mean that at least they would still have one healthy relationship with a parent.

8. I take into account the oral evidence of the single expert that if a child is allowed to believe a false notion it can lead to cognitive distortion about who they can trust.

9. I understand this to mean that if a child is taught to believe something bad about another person that does not accord with their own positive experience of that person, they become unable to trust their own experience or to know who to believe.

10. If the children move to live with the father, I accept that the mother would want to see them and would change her life to be near them.

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

1. Each of the parents submit that the children require protection from the conduct of the other.

2. The mother identifies the children as being at risk of ongoing sexual assaults by the father regardless of whether or not he was supervised.

Analysis

1. Until the parties and the children arrived in G Town on 26 December 2017, there had been no spontaneous disclosure to any person, by any of the children of misconduct towards them by the father. The mother asked X in December 2017, although the conversational context was not fully provided, “was it Daddy?” and X replied “Probably”.

2. Further, there is no evidence that any adult has observed abusive behaviour of any kind by the father, ever, towards any of the children.

3. From February until September 2018 the children were not permitted to have any contact with the father. During that period all the children, both parties and the maternal grandmother were interviewed by police and other authorities. Abuse was not substantiated.

4. The children have since January 2018 made statements to the mother and maternal grandparents about the conduct of the father which, if true, would be abuse. Those statements have also been made outside the maternal family to the single expert.

5. The evidence of the single expert is that the statements made to her by the children did not align with a distressed affect.

6. For example, during the last portion of the interview with Y,[123] while Y was “spontaneous” saying such things as “[the father] used to stick his penis up our butt” and that this happened “in Country J and Country L and when we were in Canberra”, and that the father said “if you tell anyone I’ll squeeze you by the neck until you are dead”, Y was observed as follows:

   Throughout this last portion of the interview Y appeared to be extremely happy and was saying these things in a very light-hearted tone. He had a smile on his face for most of the time and was playing whilst talking about these things. He did not display any anxiety or trepidation or any negative emotion.

   [123] Single Expert Report dated 29/03/2019, par 169

7. Z too was described by the single expert as “happy and light-hearted” and “he said ‘I don’t want to talk about bad stuff dad has done’”.[124]

   [124] Single Expert Report dated 29/03/2019, par 177

8. Counsel for the mother carefully explored with the single expert the possibility that the children had been groomed by the father for abuse and a special relationship. The proposition put forward by counsel was that the children could have compartmentalised affection for the father from abuse by him.

9. The single expert was clear to say that violent abuse involving physical harm was inconsistent with grooming.

   All this horror and no fear and trepidation, unlikely.

10. If the children had accepted bribes for sexual favours, experienced the pain of anal and digital rape, had their penises stretched and necks squeezed, it seems improbable that they would speak so affectionately about the father to the single expert.

11. I accept that evidence. I consider that it is probably the case that the children have grown used to reporting abuse by the father but are not frightened of him and do enjoy seeing him. That is the truth of the relationship based on their experience of him. They have always loved him, just as they have always loved their mother.

12. The children appear to be trying to be obedient, to do what is expected of them by each parent.

Additional Considerations

Any views expressed by the children and any factors (such as each child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

1. The subject children returned to Australia for Christmas holidays in 2017 expecting to visit both sides of the family then return to Country J where they lived, went to school and had friends.

2. Instead their parents separated. The children gradually learned that they would remain living in the home of the maternal grandparents with their mother and would not return to Country J. They did not see their father between February and September 2018.

3. From their perspective the mother was sad, tearful, angry and flat in 2017, before she began to be happy again during 2018.

4. They have been formally interviewed three times each, over a period of nine months (April 2018, September 2018 and then again in January/February 2019).

1. They have been questioned and counselled by a psychologist and by sexual assault counsellors for a period of months.

2. They have been questioned, challenged, rebuked and pressured by the mother and both maternal grandparents to reject the father and to “reveal” him as an abuser to authorities.

3. The children have had the life they knew so thoroughly disrupted that I cannot take their views into account in a straightforward way.

4. X told the single expert he did not want to see his father again.[125] He poured out information about being abused and anally raped by the father in the water at the beach. His paternal aunt, he thought, could not see what was happening.

   [125] Single Expert Report dated 29/03/2019, par 145

5. He also mentioned bribery, with his father saying to him “if you let me do the bad stuff I’ll buy you toys”.

6. He had not seen anything happening to his brothers but believed the same things happened to them.

7. In the same interview, X said he liked that his father took them to the beach to his apartment or to a movie.

8. Y too reported abuse at the beach “he touches us on the penis in the water” noting that he said it “was weird because he didn’t feel it”.

9. He was otherwise positive about his father.

10. Z has a fun time with his father and just did not want to talk about bad stuff.

11. All the children spoke of their love and appreciation for the mother.

The nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child)

1. The relationship between the children and their extended paternal family is under strain. Those relationships especially with their paternal grandmother and the paternal aunt and her family, urgently need restoring to what they once were.

2. The maternal grandparents, especially the maternal grandmother, loved the father and valued him as a family member.

3. Out of a combination of loyalty to the mother and shock at what the mother had said about the father the maternal grandparents rejected the father in January 2018 without any real discussion with him at all.

4. They speak to the children as if their father was a criminal who will probably one day go to gaol.

5. They have not protected the loving relationships the children have with the father. They feed them little bits of criticism about the father and his family.

The likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of his or her parents, or any other child or other person

1. A change of residence is a brutal outcome for the children.

2. They love their mother and the maternal grandparents who have become their new family unit. They all feel safe there.

3. The mother cannot, or will not, support a relationship between the children and the father. The mother is willing to accept that the father has cruelly and publicly molested the children and that the paternal aunt has either condoned that behaviour or been profoundly negligent as a supervisor. Living as they are, the father will be lost to them.

4. The proposed move to live with the father disrupts their lives again, this move will be less than two years after the last upheaval when the family split in such a dramatic way.

5. They would be moving very far from the quiet town of G Town and the little school that they all enjoy, to live in South East Queensland.

6. Most importantly they will be cut off from their mother, who has been their main carer all their lives.

7. The single expert set out the likely developmental consequences of remaining with the mother:

   245. The risks in this scenario are that the children will continue to develop erroneous and bizarre ideas about what has happened to them. It seems to me that the children are already developing incredulous ideas about what has been happening to them, such as that they have been raped at supervised contact. Once these sorts of views have cemented, it can become almost impossible to disabuse a child of the notion that such abuse has occurred. The risk is, that the child will continue to develop absurd or distorted ideas about their own autobiographical experiences. I think this is already occurring. For example, although it appears from the account of both of the parents that the children enjoyed many aspects of their life in Country J and missed their friends, school and their father when they returned to Australia, the views expressed to me by the children suggested that they were starting to reappraise this time as a negative time in their lives and were negative and critical about matters such as their friends and their school in Country J. This sort of post-hoc reappraisal suggests that the children may continue along this trajectory. The risk is that the children will come to believe negative and untruthful things about their early life and ultimately come to believe that their father was a sexual predator who abandoned them and who wreaked havoc on themselves and their family.

   246. A further risk in this scenario is that the children may, over time, internalise the loss of their father. As they grow and develop the children are likely to identify aspects of themselves that are similar to their father. The risk in this scenario is that the children will suffer from a range of psychological problems, including feelings of abandonment and concomitant problems with identity.  

8. I accept that expert evidence as a factor to be given great weight for the future mental healthy development of the children.

9. I also take into account the capacity and willingness of the father to act and speak positively about the mother for their sake and to promote restoration of relationships. It is crucial that, that occurs. The best chance that it will is if the children live with the father.

The capacity of the children’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The Mother

1. The mother is a capable and well educated person.

2. The mother has been a loving and competent parent but her capacity is impaired by her obsession with abuse of the children.

3. It cannot be definitive but I take into account the observation of the maternal grandmother about the children’s behaviour improving when the mental health of the mother improved and deteriorating again after the mother became stressed and anxious in relation to interim orders.

4. It is reasonable to infer that the behaviour of the children was a mirror of the mental health of the mother.

5. The mother has acted to support and restore her own mental health. She will likely need ongoing professional help to consider the possibility that she has been mistaken about the father.

The Father

1. The father is a capable and well-educated person.

2. He has not been a full-time carer for the children. He has been away for days and weeks at a time throughout their lives.

3. The father has had a successful career which is currently suspended.

4. The single expert highlighted the fact that although the father could probably develop his parenting skills “the children do not have an attachment history with the father analogous to that they have had with the mother”.[126]

   [126] Single Expert Report dated 2903/2019, par 249

5. In her police interview the mother described the father as “a really good Dad” She referred to going out shopping with one child, the others staying at home with the father. “[Mr Syms] would come to swimming and basketball.”

6. It seems likely that the father never contemplated being a full-time solo parent.

7. However as soon as he realised the magnitude of the issues in this case and that his relationship with his children was at risk of being permanently lost he acted decisively; put his career on hold, returned to live in Australia and focused on making the most he could of supervised time.

8. The evidence supports a finding that the children love their father and have hung onto those feelings through the last, almost, two years of disruption and change. That is indicative of a strong connection.

9. I am satisfied that the father will be able to make the children his priority and also that he will not underestimate or undermine their love for the mother.

Any other fact or circumstance that the Court thinks is relevant

1. X made some remarks to the single expert which caused her to be concerned for him. They raised the possibility of his behaviour with the other children.

2. The evidence of the mother is that her early concerns (from 2014 onwards) were about intrusive “sexualised behaviour” by X with his younger brothers.

3. I cannot come to a conclusion about this aspect but it is a matter on which I accept X would benefit from the intervention of a skilled therapist as recommended by the single expert in her oral evidence:

   X needs an independent therapist to tell him that the course of events is not his fault…a compassionate person to slowly take him through…to explain children make mistakes, adults make mistakes.

4. Referring to sexual abuse, X volunteered “it’s really bad to do that kind of stuff to someone else” then “I’m not going to do that when I’m older” then “I would never do that to anyone else”. He is described as speaking at length on the topic and saying that his paternal grandfather had told him that “people who did ‘that sort of stuff’ went to gaol”.[127]

   [127] Single Expert Report dated 29/03/2019, par 137

5. Clearly, he was worried about consequences. There was no reference in this context to his father.

6. Later the topic came up again in his interview with the single expert:

   147. X then said that his mother and [maternal] grandparents have told them [the children] that if they had the “right proof” that his father would be in jail (sic). X then began to look somewhat uncertain. He then said “how long would someone like that be in jail (sic) for?” I said that I did not know. He said “it makes me never ever to want to do it”. He said “it is gross”. He repeated “I’m never going to do that when I grow up”.

7. X certainly said he thought he would be safer with his mother but his expressed worry about living with his father was not about being abused. His worry was:

   151. …if I live with him he is going to keep bugging me about why I said what I did.

8. X with all his worries, fears and, perhaps, guilty feelings will need very sensitive parenting.

Conclusion

1. For the reasons above I have concluded that the children should move to live with their father and for him to have sole parental responsibility.

2. The mother and the maternal family are likely to be horrified by that outcome. The single expert in her oral evidence, analysed the mother as “hyper-vigilant…interpreting everything through the lens of signs and symptoms [of abuse]”.

3. Consistent with her evidence, the mother is unlikely to have any confidence that the children will be safe in the care of the father. She may feel driven to save them from the father by delivering warnings and advice about how the children might avoid abuse.

4. There is a very high risk of the children becoming genuinely fearful of the father and helplessly anxious about their own safety if they stay with the mother before their change of residence.

5. The Court has chosen the school holiday period as a natural opportunity for the children to come into the care of the father. The changeover at Court is intended to simplify the transition for the children on that basis.

6. The children, especially X, who expressed a wish to come back to see the single expert,[128] would benefit from having the orders thoroughly explained to them immediately by the ICL, and again later by the single expert, who could answer any further questions they had from a position of extensive knowledge about their history.

   [128] Single Expert Report dated 29/03/2019, par 152

7. They will benefit from re-assurance that the mother will be part of their lives in future despite a period of not seeing her.

8. Provision has been made in the orders for that to happen.

9. Orders are made accordingly.

I certify that the preceding five hundred and fifty-two (552) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 10 October 2019.

Associate: 

Date:  10 October 2019