Thompson & Booker - [2022] FedCFamC1F 419

Federal Circuit and Family Court of Australia
(DIVISION 1)
Thompson & Booker [2022] FedCFamC1F 419

File number: BRC 14778 of 2018

Judgment of: GILL J

Date of judgment: 14 June 2022

Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – With whom a child spends time – Best interests of a child – Father and paternal grandparents seeking time with the child in context where allegations of child sexual abuse are levelled at the father – Whether the father poses an unacceptable risk of physical sexual harm and psychological harm towards the child – Where the child is impacted by the mother and maternal family’s firmly held beliefs that abuse occurred by the father – Positive finding that father has not engaged in physical sexual abuse of the child – Where orders are made for no time with the father due to consequential risk of psychological harm of the child – Orders made for paternal grandparents to have limited, supervised time with the child.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA

Cases cited:
Bant & Clayton [2019] FamCAFC 198

Fitzwater & Fitzwater [2019] FamCAFC 251

Johnson v Page [2007] FamCA 1235

Jollie & Dysart [2014] FamCAFC 149

M v M (1988) 166 CLR 69

Marsden & Winch (No. 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

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

Sahrawi & Hadrami [2018] FamCAFC 170

S v S [1994] NZFLR 26

Division: Division 1 First Instance

Number of paragraphs: 398

Date of hearing: 15–16 April 2021, 19–21 April 2021 & 4 May 2021

Place: City S

Counsel for the Applicant: Ms Davis

Solicitor for the Applicant: Condon Charles Lawyers

Counsel for the First Respondent: Dr Behrens

Solicitor for the First Respondent: Gordon Lawyers

Solicitor for the Second Respondent: Condon Charles Lawyers

Solicitor for the Independent Children's Lawyer: Legal Aid, ACT
ORDERS

BRC 14778 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR THOMPSON

Applicant

AND:
MS BOOKER

First Respondent

MS B THOMPSON

Second Respondent

MR V THOMPSON

Third Respondent

order made by:

GILL J

DATE OF ORDER:

14 JUNE 2022

THE COURT ORDERS THAT:
1.That all previous orders be discharged.

Parental Responsibility
2.That the mother shall have sole parental responsibility for the child, X, born 2012 (“X”).
3.That the mother shall, on the first day of each second month, provide to the father an update as to X’s care, education, welfare and development to be sent via email to an email address nominated by the father and communicated to the mother’s solicitors within 7 days of the date of these orders.
4.That the mother shall, as soon as practicable, inform the father in the event X suffers a significant illness, accident or injury.
5.That the mother shall do all things and acts necessary to authorise any school attended by X to release to the father information which parents are entitled to receive including, but not limited to, X’s school reports and school photos.
6.The mother is restrained by injunction from taking X to counselling where the sole purpose of that counselling is to address issues arising from the allegations that X’s father sexually abused her.
7.The mother is restrained by injunction from identifying X as the victim of sexual abuse to any third party, save for a treating medical or mental health practitioner for the mother or for X.
8.The mother is at liberty to provide such practitioners with a copy of this judgment, as it deals with the issue of whether X has been so abused.

Spends Time With/Lives With
9.That X will live with the mother.
10.That, subject to Order 12 below, X spend no time with the father.
11.That X spend time with Ms B Thompson and/or Mr V Thompson (“the paternal grandparents”) as agreed between the mother and the paternal grandparents but, failing agreement, as follows:
(a)At a place nominated by the mother within one hour’s travel by car of X’s home in D Town;
(b)To occur in the presence of Ms E (“the maternal grandmother”) or in the event that the maternal grandmother is not available such other person as is proposed by the mother, NOTING THAT the maternal grandmother consented to the same at trial;
(c)On not less than four occasions per year with each occasion to fall within a different New South Wales school holiday period and for up to three consecutive days from 10 am until 4 pm on each day.

12.That, in the event X expresses a wish to spend time with her father, the mother shall take all steps and do all things necessary to allow that to happen NOTING THAT such time could occur during visits between X and the paternal grandparents.

Communication
13.That, subject to Order 18 below, X communicate with the father in accordance with her wishes.
14.That the father and the paternal grandparents be at liberty to send letters, cards and gifts to X and the mother shall provide the father’s solicitor with a postal address to which such items can be sent within 7 days of the date of these orders and with the mother to inform the father and the paternal grandparents of any change to that address within 7 days of such change occurring.
15.That the paternal grandparents be at liberty to have electronic communication with X on one occasion per month, with such communication to be via a platform that facilitates audio visual communication and then if such is not available, by telephone, at a time and on a day to be agreed between the mother and the paternal grandparents and, failing agreement, on the first Saturday of each month at 4:00 pm with the paternal grandparents to initiate the call to a platform nominated by the mother and communicated to the father’s solicitor within 7 days of the date of these orders.
16.The mother is to keep the paternal grandparents advised of an address/platform for the provision of correspondence, gifts and conduct of electronic communication.
17.That, in addition to the communication set out in Order 15 above, the paternal grandparents be at liberty to have such communication with X on her birthday and on Christmas Day at a time to be agreed between the mother and the paternal grandparents but, failing agreement, at 10 am with the paternal grandparents to initiate the call to the number nominated by the mother.
18.That, in relation to Order 17 above, the paternal grandparents be at liberty to include the father in the telephone calls they make to X on her birthday and on Christmas Day.

Restraints
19.That the mother be restrained from discussing the outcome of the proceedings with X until such time as X has met with the Independent Children’s Lawyer as set out in Order 21 below.
20.That the father and the paternal grandparents be restrained by injunction from discussing these proceedings – or the subject/s of these proceedings - with X during any time they might spend with her or during any communication they might have with her and shall use their best endeavours to prevent third parties from doing the same.

Miscellaneous
21.That, as soon as practicable after the release of a decision in this matter, the mother shall arrange for X meet with the Independent Children’s Lawyer in order for the Independent Children’s Lawyer to explain the orders to X and, in her discretion, the reasons for the orders made.

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

These proceedings concern the parenting arrangements that are in the best interests of X, (“X”) born in 2012 (currently aged 10 years). The parties are Mr Thompson (“the father”), and Ms Booker (“the mother”) and the paternal grandparents, Ms B Thompson and Mr V Thompson. The father and the mother commenced a relationship in or around mid-2009. They separated on a final basis in or around January 2015. X is their only child. An Independent Children’s Lawyer (“the ICL”) was appointed in these proceedings.
There are three central issues in determining X’s best interests. The first concerns whether X is at unacceptable risk of sexual harm from the father. The second concerns whether X is at unacceptable risk of psychological harm from being brought into contact with the father in a context of her holding a firm view that he has so harmed her, irrespective of whether it has occurred or not. The third concerns the degree to which X may benefit from a meaningful relationship with the father and relationships with the paternal grandparents.
Although the parties disagreed in relation to the conclusions to be reached in respect of these issues, the parties were in agreement that no positive finding should be made the father has in fact sexually abused X. The father’s position was that the contrary should be found, and that there should be a positive finding that the father has not engaged in the abuse of X. The mother resisted such a finding and urged a conclusion that, in the absence of findings one way or another, there remains an unacceptable risk of sexual harm to X from the father.
The ICL, in ultimately supporting a case for the father to have no contact with X, was more concerned with the psychological harm that may be occasioned to X in bringing her into contact with the father as X has now become highly resistant to any relationship with him, saying that she does not want to spend time with him as he has abused her.
The central issues were reliant upon the assessment of the veracity, significance and consequences of claims that the father has sexually harmed X, which arise primarily from comments attributed to X that are said to evidence abuse by the father. In resolving these issues, the parties had recourse to a single expert, Mr H, who produced a family report in the matter.
The consequences of X being abused, or believing that she has been abused when it has not in fact occurred, were identified in the proceedings as being both similar and deleterious. The loss of relationship with the father was also identified in the proceedings as leading to poor outcomes for X.
A strong issue in the hearing was then as to whether X’s view of the father flows from being abused by the father, or by influence exerted, either deliberately, recklessly or accidentally, by the mother upon X.
In pursuing her case of unacceptable risk of sexual harm, the mother relies upon a suite of asserted disclosures made by X occurring across three time frames: first being prior to mid November 2016, following a move to New South Wales from Queensland, second being from mid November 2016 until the commencement of proceedings in December 2018, and third from the commencement of proceedings in December 2018 until the hearing of the matter.
Specifically in her final submissions, the mother identified the following asserted disclosures and other indicia of abuse:
(a)Pre-mid-November 2016
(i)To the mother in 2014 that the father had touched her bum;
(ii)To the mother in October 2015 that the father had touched X’s vagina with a “twisty tool”;
(iii)To the mother on or about 14 October 2016, following a birthday party on 14 October 2016 that the father dragged her into the toilet, showed X his penis and tried to cuddle her while naked;
(iv)X’s reference to being “dragged” to Queensland police during the interview of 26 October 2016; and
(v)To the mother on 16 November 2016 that the father tickled X’s vagina;
(b)Between mid-November 2016 until the commencement of proceedings December 2018
(i)To the mother’s partner, Mr J, in January 2017 (ICL1 p110);
(ii)To the maternal grandmother in March 2017 [26]; and
(iii)To X’s psychologist, Dr F, between August and November 2017, including the drawing of pictures;
(c)From the commencement of the proceedings in December 2018 until the hearing
(i)To the mother, including by resistance to and anxiety regarding telephone calls with the father;
(ii)To the mother’s partner Mr J;
(iii)By X in her diary in 2020 M[226] referring to the “wrong place”;
(iv)To the single expert Mr H; and
(v)To staff at the supervision centre, H Contact Centre on 17 January 2020.[1]
[1] Affidavit of the mother filed 29 January 2021, paragraph 154.
The father denies ever touching X in a sexual manner.
By the close of the proceedings, the parties were in loose agreement that, whatever the outcome in respect of X and the father, there should be orders for the maintenance of a relationship between X and the paternal grandparents.
ORDERS SOUGHT
The father
The father is seeking orders for equally shared parental responsibility; X to live with the mother and that X spend time with him, initially in the City S area, professionally supervised at the father’s expense; increasing to unsupervised day time in the City S area; increasing to overnight in the City S area, substantially in the presence of another adult; and ultimately, for periods of holiday time in Queensland with the father to pay for X to travel via plane unaccompanied. The father also seeks FaceTime communication each week.
Although it was unclear whether such orders were pressed, the father sought various self-executing orders to ensure the mother’s compliance, such that either the orders now be made on an interim basis, to become final on the mother’s compliance for a period or, alternatively, that in the event of the mother’s non-compliance there be a self-executing order for a change in residence.
The mother
The mother is seeking orders for sole parental responsibility; X to live with the mother; that X spend no time and have no communication with the father; and that X spend only supervised time with the paternal grandparents.
The paternal grandparents
The paternal grandparents are seeking orders for time with X as agreed or, failing agreement, for specific periods of time during the end of term school holiday periods, initially in D Town, and initially with an agreed person such as the maternal grandmother to be present, increasing to full days without another person present. They seek that this transitions to overnights, and then portions of the school holidays, (around X’s birthday, for one week of the June/July school holidays, from 27 September to 4 October each year and from 23 to 28 December in even years) by which point the location would vary between the D Town region and Queensland. They seek communication once per month, and for the exchange of information between the mother and the paternal grandparents.
In the event that orders are made for the father to spend no time with X, then they seek an increase in the frequency of the time with X, commencing monthly and then reducing to six weekly and, after a period of time, alternating between Queensland and NSW.
Material Relied Upon
Applicant Father and Third Respondent Paternal Grandparents
As per the case outline of the father and paternal grandparents filed 12 April 2021, the father and paternal grandparents relied upon the following documents:
(a)Initiating Application filed 19 December 2018
(b)Notice of Risk filed 19 December 2018
(c)Reasons for Judgment of the Honourable Justice Gill handed down 2 July 2019
(d)Paternal Grandparents Response to Initiating Application filed 11 March 2021
(e)Affidavit of Mr Thompson filed 3 March 2021
(f)Affidavit of Mr V Thompson sworn 26 February 2021
(g)Affidavit of Ms B Thompson sworn 26 February 2021
(h)Affidavit of Ms M sworn 26 February 2021
(i)Affidavit of Dr N dated 31 March 2021
(j)Affidavits of Family Report (Mr H) filed 2 November 2020 and 12 November 2020
(k)Case Outline
Respondent Mother
As per the mother’s case outline filed 12 April 2021, she relied upon the following documents:
(a)Affidavit of Ms Booker filed 29 January 2021 (“Mother’s Trial Affidavit”)
(b)Affidavit of Ms Booker filed 3 April 2021 (“Mother’s Affidavit in Reply”) - leave is sought as this Affidavit was filed two days late (Order 6 of the Orders of March 2021)
(c)Affidavit of Dr F filed 29 January 2021
(d)Affidavit of Mr J filed 29 January 2021
(e)Affidavit of Ms E filed 29 January 2021
(f)Affidavit of Mr H filed 2 November 2020
(g)Affidavit of Dr N filed 31 March 2021
(h)A tender bundle to the extent that the documents and recordings to be relied on are not included in the ICL’s/joint tender bundle
(i)Case outline
Independent Children’s Lawyer
As per the ICL’s case outline filed 8 April 2021, the ICL relied upon the following documents:
(a)Affidavit of Mr H filed 2 November 2020
(b)Affidavit of Mr H filed 12 November 2020
(c)Affidavit of Dr N filed 31 March 2021
(d)A log of text messages between the parties was also relied upon. Although the father asserted that it was the complete record of messages, it was incomplete. He accepted that messages for the period of 26 April and 29 June 2016 were not included in the bundle. The father said that he had taken the entire log of messages off his phone, and that the explanation for the missing period could be that they did not communicate or that they did so through another means such as Facebook Messenger.
Principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles contained at s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
The Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings.”[2] The considerations are to be assessed to the extent that they are “relevant to the particular circumstances of the child.”[3] This calls for a focused examination of the considerations that arise in the individual case. The considerations that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[2] Phillips & Hansford (2019) 60 Fam LR 160, [43].
[3] Jollie & Dysart [2014] FamCAFC 149, [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations (which in large part reflect the emphasis of the Objects) focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
It is observed by Warnick and Thackray JJ in Marsden & Winch (No 3) ,[4] that the prominence of the primary considerations, such that a primary judge is:
78.…of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[4] [2007] FamCA 1364.
However, they also noted that the primary considerations are to be considered as part of the suite of considerations that includes the additional considerations:
77. whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright,[5] frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) that concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
[5] (2007) 37 Fam LR 518.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3)[6] that the Act places focus, not on a meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of a meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
[6] [2007] FamCA 1364.
In this case, the issues of risk to X, whether by virtue of abuse or neglect or family violence, or otherwise, and the availability or lack thereof, of the benefits of meaningful relationship with the father, and of relationships with the paternal grandparents, formed the central focus of the proceedings.
It can be observed that this focus took in, not only the primary considerations, but a number of the additional considerations.
Consideration of X’s views, the nature of the relationships between X and the parties, consideration of her characteristics and the capacity of the parties to provide for her needs, and the effect of change upon her, along with the practical difficulties accompanying arrangements for her, form components of the overarching consideration of the central focus of the proceedings, both in the consideration of risks to X and benefits of relationships to X.
Of all of these matters, it is the issue of risk to X that is crucial to resolve to understand how the balance of the considerations may weigh and to determine her best interests.
Approach to risk of harm
Two categories of risk were prominent in this hearing. It is asserted that, by virtue of alleged past instances of sexual abuse upon X, the father presents an unacceptable risk of sexual harm to her. It is further asserted that, regardless of whether this is so, an unacceptable risk of psychological harm for X arises in the event that she is to spend time with the father. This is grounded in X’s belief that the father has sexually abused her, and in such an outcome being contrary to X’s strongly held view that she does not want to spend time with him because of that.
In particular, the sexual risk issue is grounded in allegations of past conduct on the part of the father.
The general approach to dealing with allegations is set out by the Full Court in Sahrawi & Hadrami[7] where Ryan and Aldridge JJ stated as follows at [39]:
39.It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.
[7] [2018] FamCAFC 170.
This reflects the approach generally applied in litigation, but is subject, in cases, such as here, where there are allegations of past acts requiring an assessment of whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M[8] where it was said at 77:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression...the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.
(Citations omitted)
[8] (1988) 166 CLR 69.
Noting that the objective of the judicial process of this court is to make orders that best promote and protect the interests of the child, the High Court went on to observe at 75 that:
The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”[9]
[9] (1988) 166 CLR 69.
It is further noted at 76 that:
The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.[10]
[10] (1988) 166 CLR 69.
The consequence of this was said by the High Court to justify a deviation from the usual approach in litigation at 76:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.
…
The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.[11]
[11] (1988) 166 CLR 69
This approach was further explained by the Full Court in Johnson v Page,[12] (“Johnson v Page”) at 66:
66. ...the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
[12] [2007] FamCA 1235
Further, in Johnson v Page, the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying at 63:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
It can be seen that the question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson v Page, the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In N and S and the Separate Representative[13] (“N & S”), consistently with the article quoted above, Fogarty J explained:
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
[13] (1996) FLC 92-655
That is, it is the overarching conclusion of unacceptable risk that is to be established.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S, again as confirmed by Johnson v Page, adopting and expanding upon comments made by the New Zealand Court of Appeal.
In the Court of Appeal, [1994] NZFLR 26, Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-34:
‘In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.’
...
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
This approach recognises that in determining the best interests of a child, and in considering issues of risk, the court is involved in a predictive process, involving conclusions about what may occur in the future and the impact that such may have on the child, and further, as identified in Fitzwater & Fitzwater,[14] and consistently with what was said in M v M, that questions of what may occur in the future require the consideration of the possibility that an incident occurred in the past, rather than being restricted to consideration of that which is proven to have occurred in the past.
[14] [2019] FamCAFC 251.
To this may be added the pithy summary of Fogarty J in N & S, where he observed (as approved in Johnson v Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.
Lastly, in Bant & Clayton,[15] the Full Court emphasised that the assessment of the existence and magnitude of risk involves a consideration of all of the facts and circumstances, and cautioned against the “atomization” of each of the incidents relied upon by considering them merely individually.
[15] [2019] FamCAFC 198.
It is this approach that applies to the consideration of whether the father constitutes a sexual risk to X, and, even if not, whether orders for X to spend time with the father otherwise pose an unacceptable risk of harm to X.
FACTUAL BACKGROUND
The relationship between the parties commenced in about mid-2009. There is one child from their relationship, X. She was born in 2012. The parties finally separated in January 2015, although there were breakups prior to that.
The father worked in the resources industry as a tradesperson, generally on a fly-in fly-out (FIFO) basis. He had a normal roster of two weeks on two weeks off, although, at times he worked as much as four weeks in a row. The mother was the primary carer for X, but worked casually in allied health. The parties are in dispute about the level of involvement of the father in the care of X. The mother asserts that the father’s involvement was close to nil. The father describes that when he was home, he participated in X’s daily life. As the father’s hands were rough and desensitized to heat from his work (the mother disputes that this was the case), it was the mother who generally bathed X and changed her nappies.[16]
[16] Affidavit of the father filed 3 March 2021, paragraph 48.
While the father says that he looked after X once overnight without the mother, the mother denies that this occurred.
Although the mother asserts that the father was disinterested in X, he denies that this was the case.
The mother asserts that the father was abusive, a heavy drinker and gambler during the relationship.[17] She describes a number of occasions of the father being heavily intoxicated. The father says that at the start of the relationship they both drank to excess,[18] and that they have both when younger been charged in relation to drink driving.[19] The mother accepts that she was so charged.[20]
[17] Affidavit of the mother filed 29 January 2021, paragraph 24–27.
[18] Affidavit of the father filed 3 March 2021, paragraph 56.
[19] Affidavit of the father filed 3 March 2021, paragraphs 29–30.
[20] Affidavit of the mother filed 3 April 2021, paragraph 17.
The mother told the maternal grandmother during the relationship that the father was gambling and drinking the money that they had saved.[21] The father accepted that he gambled, although there was little to substantiate the mother’s claims of significant gambling by the father. The maternal grandmother describes that the father was drunk many times, identifying a particular occasion in 2013 (which she later accepted was of the father being a “drunk, happy man”).[22] She accepted that she was largely reliant on what she was told by the mother.[23]
[21] Affidavit of Ms E filed 29 January 2021, paragraph 10.
[22] Affidavit of Ms E filed 29 January 2021, paragraph 3.
[23] Transcript 20 April 2021, p.441, lines 21–23.
The mother asserted that the father was controlling with money, purchasing items without reference to her, such as a ute and a laptop.[24] The father denies that he was controlling and says that the mother had access to their accounts.[25] The mother denies being aware of all of the father’s accounts and further that she had access to them or could transfer money from them.[26]
[24] Affidavit of the mother filed 29 January 2021, paragraph 36.
[25] Affidavit of father filed 3 March 2021, paragraph 25c and 195.
[26] Affidavit of mother filed 3 April 2021, paragraph 14.
The father denies the mother's allegation that it was common for him to come home from work and drink, spend time on the phone and go out with his friends.[27]
[27] Affidavit of the father filed 3 March 2021, paragraph 18.
The mother recounts an example from October or November 2014 when the father slept in his car after drinking. She alleged he drove drunk.[28] He denied it. He said that he and the mother had argued, he went out and when he returned home, he had no house keys and could not enter the house. He says he slept in his car.[29]
[28] Affidavit of the mother filed 29 January 2021, paragraph 24.
[29] Affidavit of father filed 3 March 2021, paragraph 56.
The mother says that the father was never physically abusive to her during the relationship, but that he would stand over her and say abusive things to her, making her feel scared.[30] The father denied standing over the mother.[31]
[30] Affidavit of the mother filed 29 January 2021, paragraphs 31–32.
[31] Affidavit of father filed 3 March 2021, paragraph 62.
She described that he had gone through her telephone on many occasions. He accepted that when her phone was unlocked, he looked through it as he was suspicious of the mother.[32] The mother asserts that he would turn up at her work for no apparent reason at random times.[33] He agreed that he came to her work on a couple of occasions because X wanted to see the mother.[34]
[32] Affidavit of father filed 3 March 2021, paragraph 66.
[33] Affidavit of the mother filed 29 January 2021, paragraph 34.
[34] Affidavit of the father filed 3 March 2021, paragraph 65.

The father claims that the mother was abusive during the relationship, accusing him (wrongly) of infidelity, and insisting that he change his phone number, email address and Facebook account, based on her suspicions.[35] He denies being emotionally controlling or abusive to the mother. The mother accepts that, as a result of what she had been told by others, on four occasions she confronted the father about cheating on her.[36] She denied causing him to change his number, or delete his email address.
[35] Affidavit of the father filed 3 March 2021, paragraph 25.
[36] Affidavit of the mother filed 3 April 2021, paragraph 12.
Allegations of sexual abuse of X
The mother raises a number of incidents that she says occurred during the relationship. These regard the issue of whether the father has abused X.
The mother recounts a conversation with X in early 2014 when X had a nightmare about a dolphin “going to get me.”[37] The mother later related this (possibly) to a vibrator purchased by the father in 2013, as explained further later in this judgment.
[37] Affidavit of the mother filed 3 April 2021, paragraph 42.
The mother alleges that X claimed that the father made her walk home from preschool, a distance of two kilometres when she was nearly two years old.[38] The father denies this, explaining that X would insist on walking the last part home. Nothing turns on this issue.
[38] Affidavit of the mother filed 29 January 2021, paragraph 19.
After getting her nappy changed by the father in mid to late 2014, X said to the mother that “daddy touched my bum.” The mother asked whether he “would have just wiped your bottom to clean it.” X said “no he touched my bum.”[39] The father then said that he just wiped it. The mother described that the father closed the bedroom door to change the nappy and when the mother queried why, he explained that it got in the way. She said that this was not her experience.[40] The father denied closing the door and says that the mother would have checked to see if he had changed her properly as, he says, she always did this.
[39] Affidavit of the mother filed 29 January 2021, paragraph 21.
[40] Affidavit of the mother filed 29 January 2021, paragraph 20.
The mother speculates that this was X identifying some difference with how the mother wiped her.
The mother accepts that this was not a matter contained in any of her early affidavits filed in the proceedings, nor in her early account to the Queensland welfare agency. The mother said that it first occurred to her that this was an incident of abuse in approximately 2020–2021, prior to filing her affidavit in January 2021. The mother said that she was then able to identify the incident, as in her memory she linked it to the incident of the walk home in 2018. The mother has referred to the walking home incident in her previous affidavits, although she had omitted the reference to the touching on the bottom. This was at odds with her use of the incident when discussing it with a sexual assault counsellor on 24 February 2017. It was unclear why, given the mother had identified this as a potential instance of abuse in February 2017, she did not raise it in the proceedings until her trial affidavit in January 2021. There should be caution exercised in relation to the detail relied upon by the mother in relation to her interaction with X.
In any event, this evidence, either taken on its own or in combination with the other evidence, is not suggestive of sexual abuse. X’s description, at age two, does not point toward a conclusion that the father touched X’s bottom in a sexual manner. The description is not suggestive of a sexual act, even if there was denial by X that it was for wiping.
The next in time incident identified by the mother was in two drawings from X: one drawn in May 2015, and the other drawn before that, but at an unidentified time. One drawing depicts X, the mother and the father, with scribble on the lower parts of X and the father’s bodies, approximating the genital area, but not on the mother. The other drawing depicts X and the father with scribble on the bodies between the legs, approximating the genital area.
The mother included the pictures because she thought they could be evidence of a disclosure by X.
In relation to one of the drawings produced, although the mother now raises the drawing as sinister, at the time she messaged the father in the following terms on 9 May 2015:
Um [X] drew this picture of us haha you are holding your shaver to shave your head and I asked what was the scribble between your legs she said it’s your Gina bahahaha I had to say no lol hahaha[41]
[41] Exhibit F1, text messages 56–57.
There is no reason, other than speculation, to consider that this is indicative of abuse. Mr H did not consider that they gave any reason for concern, noting that there are dangers in looking back retrospectively “because of our biases and beliefs, and see something more sinister than necessarily is the case.”[42] He further noted that it is common for children in the age range between three to five years, to be preoccupied with bottoms, penises and vaginas. He concluded that in isolation the drawings were not a matter for concern.[43]
[42] Transcript 21 April 2021, p.531 lines 28–29.
[43] Transcript 21 April 2021, p.531 lines 32–33.
Mr H observed that once the mother formed the belief that X had been abused, it is likely that she will filter other information through that belief, potentially as in relation to these drawings.[44]
[44] Transcript 21 April 2021, p.532 lines 14–17.
I am unable to discern a basis to think that these drawing indicated that the father had done something to X.
The mother described that during the relationship the father had made comments about how “tight (her) pussy” was and that “it felt like a baby grabbing his dick when (her) muscles tensed.”[45] The father denied this. She also described that the father asked her to wax her genital area and purchased her a “blue dolphin” sex toy. The father agreed that he purchased a vibrator for the mother, on the basis that her previous one had broken, but denied asking the mother to shave her genital area. The father however regularly paid for the mother to have Brazilian waxes.
[45] Affidavit of the mother filed 29 January 2021, paragraph 39.
Mr H was asked about the significance of these sexual interactions (assuming they occurred as described by the mother) to the issue of sexual risk. He did not consider that they were relevant to showing that the father presents a risk, and despite the words alleged to be used, I do not perceive how it is indicative of a particular sexual interest on the part of the father that speaks to risk.
Separation
The mother initially stated that she separated from the father around November 2014. The father stated he separated from the mother around January 2015. The mother ultimately accepted that the separation finally occurred in January 2015. It is uncontentious that the mother moved in with her family in City L in January 2015 for a number of months.
The father says that he undertook employment on a 19 days on, nine days off roster about three hours from City L, and then later obtained work in City L.
The mother also described that the father would spend two to three hours with X on a monthly basis. The father agrees that this was the duration, but says that was what the mother permitted. The mother says that X would act out around the visits and that the father was unreliable in turning up for them. The father says that X was always happy to get into his car when he picked her up, and often asked for sleep overs with her cousins.
The father however also says that he would ring or text the mother when on the way home from work to organise to spend time with X, and he would “often” look after X at the mother’s home when she had other engagements. He does not describe the frequency.
Although the mother has argued that the father lacked interest in X, the log of text messages between the parties that was entered into evidence pointed away from such a conclusion, demonstrating a cooperative relationship between the parties and the father’s engagement in respect of X.
The mother describes that following their separation, the father did not allow her adequate access to the family home or to her belongings post separation. The father agrees that the mother was removed from the lease and did not have a key. He denied that she was refused access to what was in the house. The mother says the father disposed of her bicycle. He agrees that he did, partly on the basis that the mother had not contacted him about collecting her belongings. The mother says that he would not let her take it, and also retained her spin bike along with most of her belongings. The father’s description of disposing of the bike sits somewhat uncomfortably with his account that the mother had access to obtain her belongings. I accept that the mother was not provided with all of her belongings on the breakdown of the relationship.
The mother subsequently moved into a rental property. She describes that despite an earlier agreement that she would have their dogs, the father refused and gave her dog away. The father, however, says that although he spoke to the mother about her taking her dog, he was told “not yet”.[46] The dogs stayed at his parents’ property in March 2015, but, he says, were too much and that the mother’s dog went to a friend of the father. When the mother asked for the dog he agrees that he refused, saying it was on the basis that the dog was settled.
[46] Affidavit of the father filed 3 March 2021, paragraph 76.
These matters point to the father behaving in an unreasonable manner immediately post separation, in respect of the property and financial support of the mother. I do not, however, consider that he continued in such a manner. The exchanges of text messages showing a more generally supportive approach by the father, both financially and otherwise.
The mother and X remained in the rental property for a year, until they then rented her parent’s home in City L.
The mother says that the relationship with the father improved after separation, causing her to consider a reconciliation, with discussions regarding reconciliation occurring in 2016. There appeared to be no firm resolution of that issue, in the sense of the parties explicitly communicating that it was not going to happen. Those discussions continued whilst the parties were also discussing the mother and X moving to NSW with her family.
It should be noted that at each stage that the mother raised the potential move of herself and X to NSW, the father expressed that he agreed with the mother doing so. At no stage did he threaten to withhold his consent or present an obstacle to the move, at most asking to sort out the arrangements regarding X formally prior to it happening.
The mother raises a number of incidents commencing in October 2015 that she says in retrospect made her wish that she had sought medical assistance for X.
In early October 2015, the mother says that X said to her “Daddy touched my vagina.” The mother described that the use of “vagina” was surprising to the mother, but she considered that in the process of nappy changing it would not be difficult to touch her vagina. Following the father filing his affidavit material, the mother conceded that she was not sure about the date of this alleged disclosure. What remained unclear was the manner in which the mother responded (apart from diarising) to this comment from X that she was surprised about. It remains unknown what the mother said to X at this point.
In her oral evidence, the mother said that X has said something like this a number of times, but agreed that she had not suggested so in her affidavit. The mother said that she remembered the above comment by X when she reviewed her diary.
I am unable to discern anything sinister, even taking what X is supposed to have said at its highest, in the mere reference to the father having touched X’s vagina. It may be noted that this is consistent with the manner in which the mother initially treated the comments by X.
The father is critical of the mother’s use of these purported comments that she sourced from her diary, noting the context within which they are recorded as on 3 and 4 October there was an aggressive exchange of messages between the mother and the father: the father complaining that the mother had not responded promptly enough, the mother that she had not seen the message and criticising the father for his unreliability. The father suggested having recourse to lawyers.
It was immediately following the mother’s description of this exchange in her diary, that the diary records X speaking of the father touching her vagina. The father submits that the coincidence of these entries speaks to the potential of the mother considering using the touching the vagina comments to shore up her move to NSW.
When considering the diary, it should also be noted that the mother accepted that it was not necessarily completed contemporaneously, and that the mother had gone back to the diary and made entries post the events. Despite the mother’s explanation of surprise at the use of the word “vagina” it remains unclear for what purpose the entry was made in the diary, particularly given the representation that X had said such things previously.
In seeking to contradict the implicit suggestion of having abused X on this occasion, the father says that he only spent time with X on two occasions in October 2015.
In particular, the father says that he spent time with X on 5 October 2015. He looked after X for a period of time when the mother was at the gym. While the mother asserted that this was for half an hour and at her home, the father says that he looked after X for two hours, and that he took her to visit his parents. The mother subsequently accepted that she may have been wrong about the father also looking after X at her home that day.
He says that he took X to the park near the mother’s home to play, as the mother was not home, and as he sought to distract X from needing to do a wee. He says that X tried to do a wee in the mother’s yard, but said that she could not go. He says that the mother arrived home about ten minutes later. The mother denied that she was not home when the father and X arrived there, and also asserted that she did not know about X weeing in her yard until she read an affidavit from the father. This was not correct, as the father refers to a text exchange in Exhibit F1, text messages 1302–1311, which formed part of a broader exchange between the parties. The exchange confirms that the mother was away longer than she expected to be, that the time with the father was considerably longer than the half hour described by the mother, that the father had taken X to see his parents, and that the father informed the mother that X needed to do a wee in the mother’s yard while she waited.
These examples add little to the consideration of the mother’s claim that X had spoken of the father touching her vagina, other than to emphasise that each parent struggled to accurately recall the extent or circumstances of the father’s interactions with X at this time.
The last occasion for October 2015 identified by the father was 22 October 2015. This became the occasion for one of the asserted disclosures relied upon more heavily by the mother.
The mother said that the father looked after X for around 30 minutes while she went to the gym. It should be noted that the mother’s evidence about where she went varied between going to Coles to pick something up and going to the gym. The father asserts that the mother did not go out at all on this occasion, but remained for the visit.
When the mother initially identified this episode in her first affidavits, she nominated it as occurring in October without identifying a particular date. In reliance upon the text log produced by the father during the proceedings, the mother asserts that this incident occurred on 22 October 2015. She says that the father arrived at 6.45 pm (per the message in the log) and had left prior to the disclosure. She was not sure how long he was there for, but thought that she had gone to the supermarket to pick up something.
The mother says that after the visit she noticed that the area around X’s genitals was red when she was changing X’s nappy. X told the mother that “Daddy touched me here (gesturing at her genitals) with his twisty tool!”. In her second affidavit description, the mother amplified her account, and added that X then started to cry, and the mother assumed that X had thrush and so applied cream to the area, with X saying that it stung. The mother said that she was alarmed and confused, spoke to her mother about this, with neither knowing what the reference to “twisty tool” meant.
The maternal grandmother confirms that the mother told her of the incident at the time, although she was not specific as to the date.
The mother was taken to an account of this incident given to a sexual assault worker prior to the institution of the proceedings in February 2017. That account varied from her affidavit. As recorded by the sexual assault worker:
when she first noticed the redness [Ms Booker] said she asked [X], “Why is it so red and puffy down there? [X] said to her, “I don’t know.” [Ms Booker] then said to her, “No, it’s really red and puffy. Why is it that bad?” [Ms Booker] said that this when [X] started bawling and said, “Daddy touched it with his twisty tool.”[47]
[47] Transcript 19 April 2021, p.297 lines 22–26.
The mother was further recorded to have asked X “what is a twisty tool?” to which X gave no reply but continued crying.
The mother appeared to accept that this was the more accurate account of the exchange. The variation in the accounts given by the mother calls for caution in considering what exactly passed between the mother and X on this occasion.
The mother accepted that by her questioning as described to the sexual assault worker she had effectively asked X to come up with an explanation as to why her vagina was red. It was not a conversation, whatever its terms, in which X spontaneously described the twisty tool devoid of the pressure to give some sort of explanation.
The mother did not believe that X could have invented “twisty tool” as “kids don’t speak like that in those graphic terms... she didn’t speak that way.” The mother says that she neither thought nor wanted to think that the father was abusing X. She applied Sudocrem and the redness cleared.
The father says that he does not know what a “twisty tool” is.
The mother now thinks that the twisty tool may have been the blue dolphin vibrator described earlier. The parties were in contest as to whether such a vibrator was possessed by them and so attention was given to that issue during the proceedings
In her reply affidavit filed 3 April 2021, the mother asserted that the only vibrator used in the relationship was purchased by the father in July 2013. This was the vibrator that she had previously described as a “blue dolphin”. She clarified her earlier evidence to say that although it was not called a “blue dolphin” there was a part of it that looked like a dolphin. She explained that it had a twisting part and a vibrating part that looked like a dolphin. The mother produced an image of a vibrator that she asserted was similar. That image left open the possible description of a portion of the vibrator being dolphin like in appearance. The mother expressed concern that the father had used the device on X, postulating that the noise made by the vibrator was similar to that of a toy fish that X expressed fear of when it was used in the bath. The mother also sought to link the vibrator to X’s dolphin dream referred to above.
Exhibit F2 produced by the father was a Google search for the vibrator identified in the invoice that the mother produced to establish that the father had purchased a vibrator in 2013. Although a portion of the vibrator was blue, there was nothing that I discerned to be similar in appearance to a dolphin. It was suggested to the mother that the more dolphin like image that she produced was designed to aid her case by connecting it to X’s dream about a dolphin. She denied this.

I am unable to accept that the vibrator that was actually purchased bore resemblance to a dolphin. It is far more likely that it is the model the picture of which was produced by the father in reliance upon the receipt produced by the mother. I do not accept that there is any connection between X's fears of a toy fish, her dream about dolphins and the vibrator.
However, in accordance with the mother’s description, it appears that a portion of that vibrator had a rotating or twisting function.
The mother accepted that her assertion is now that it was while she had gone to the supermarket that the father took the opportunity to sexually assault X. It may be noted that such was not her assessment at the time.
No evidence was given by the mother as to the accessibility of the vibrator in her home, nor of the father’s knowledge of its whereabouts and hence as to his ability to access it. On the father’s account he was not alone with X in any event as the mother remained in the home.
In contrast, the father says that the mother was present on this occasion and did not go to the gym or the supermarket. He refers to a text exchange at 1473–1480. The exchange supports the notion that the father attended at the home at about 6.45 pm. It does not indicate whether the mother attended at the gym/Coles, but does show that the visit was arranged by the father on the basis that he would not be able to see X on the weekend. The mother asserts that she recalls the father then offering to look after X while the mother went to the gym and the mother taking him up on that offer.
It may be observed that on the mother’s account she did not think at that time that the father had done anything untoward to X. This would be consistent with the father’s description of the evening being that they were both present for the visit. It is also consistent with the terms of the conversation with X not, at the time, being such as to cause the mother to infer that something bad had happened. Even if it is accepted that X referred to a twisty tool at the time, the balance of the conversation remains opaque, other than it might be inferred that X was placed under pressure to come up with an explanation for her red and inflamed genitals, a presentation that X may have had no explanation for. In the absence of evidence suggestive that the father had access to the vibrator or knowledge of its whereabouts (at most the evidence indicated how it had been kept in the parties’ home during the relationship, not where it ended up post separation), although the parent’s vibrator had a rotating function, there is little to commend it as an explanation for the use of the term “twisty tool.”
Under all of those circumstances I do not accept that the account of X saying that the father touched her with a twisty tool is cogent evidence of a sexualised touching.
The mother said that in February 2016 X started asking for “safe cuddles” from the mother. Again this does not comprise cogent evidence of abuse, or is even suggestive that the father has engaged in abuse of X.
On 7 February 2016, the father spent time with X. In the evening, the mother noticed a discharge in X’s underwear she had not seen before. The discharge looked watery and bloody. The mother photographed the underwear. She said that she did not know what she was planning to do with the picture, did not provide it to investigators or X’s doctor, agreed that it coincided with discussions about her parents moving, but denied that it was collecting evidence in case she needed to fight with the father. The mother agreed that she did not provide the image until her last affidavit. It remains unclear why the mother took the image.
The father directs attention to text messages 1686–1689, 7 February 2016 where the mother asked whether someone had wiped X’s “bum” after she went to the toilet. The father responded:
She didn’t go to the toilet at all, I asked her if she wanted to go but she said no[48]
[48] Exhibit F1, text message 1689.
As will be seen in the evidence of Dr N, the forensic expert called to give evidence as to the significance of X's purported physical presentations, the presence of a discharge is not suggestive of abuse.
On 12 March 2016, X spent time with the father. The father says that X was at his parent’s home with him, he having picked her up at 11.00 am and dropped her back to the mother between 1.30 pm and 1.45 pm. He expects that X would have been actively playing with her cousins.
The mother alleges that on that evening she observed that X’s:
vagina appeared red and a little bit bruised (two small darker bruises on each side of the top of [X’s] vagina). [X] complained that it hurt when urinating. I was concerned. I did not know what to make of it.[49]
[49] Affidavit of the mother filed 29 January 2021, paragraph 70.
That night, the mother noticed no discharge on X’s underwear.
Reference was made to this in the material produced by the child welfare agency. At Exhibit ICL1, a screening tool regarding an interview from 20 October 2016 recorded that “roughly” five months previously (i.e. about May 2016) the mother had noticed “on a couple of occasions” “X having two small bruises after visits with her father (one on each side of her vagina lips)”.[50]
[50] Exhibit ICL1, p.101.
In her oral evidence, the mother said that she could not remember how many times she had seen this.[51] The assertions as to more than one occasion were at odds with the mother’s affidavit material that recorded one such instance. There is a significant difference between the bruising appearing on one occasion or on a couple of occasions, where the mother has subsequently taken them to be indicative of harm having come to X sexually. The significance of the asserted marks is dealt with further below in the evidence of Dr N. They should not be taken to be suggestive of abuse.
[51] Transcript 19 April 2021, p.309 line 8.
On 15 March 2016, the mother sent the father a text message about the possibility of the parties reconciling[52] which the father agreed to talk about, with further mutual messages about reconciliation in the following days at 1924–1931. On 1 July 2016, the parties were still messaging regarding this possibility in the face of the mother and father agreeing that the mother could move to NSW with X.[53] By 14 August 2016, the prospects of such appeared to have waned although it is far from clear that the idea was off the table by this stage.[54]
[52] Exhibit F1, text message 1861.
[53] Exhibit F1, text messages 2168–2169.
[54] Exhibit F1, text messages 2226–2227.
The mother says that in early 2016 and then in April – May 2016, there were discussions between herself and the father regarding a move by the mother and X to be near her parents (in D Town NSW). She says that the father said that it was ok by him. She says that this attitude by the father was further evidenced by a text exchange on 1 July 2016, where he again confirmed that the move was “okay.” The father accepts that this was the case and says that he also asked about parenting orders and when he would get to see and talk to X.
In about May 2016, the father moved away from the City L area to the G Region, approximately three and a half hours away. The father describes that he was unable to find work in City L, and was waiting for a new FIFO contract to commence in August or September. He says that he travelled to City L on the weekends.
The mother says that the father’s visits with X became less frequent.
The mother says that on 7 May 2016, the father told her that X was scratching her vagina. The mother produced a text message in relation to this.
Further discussions took place in July 2016 regarding the move, the mother saying that it would most likely happen toward the end of the year. The father produced text messages 2165–2180, which confirm that he agreed to the move. The father says that during these discussions he said that they would need to get it sorted out and in writing prior to the move.
In August 2016, the father took X to her cousin Z’s birthday party, held at the father’s parent’s house. Due to things subsequently said by X about the party, an allegation arose that the father had sexually abused X during the party, in one of the toilets. This allegation was the subject of particular attention during the trial.
The father, his parents and his sister Ms E, were all at the party and gave evidence during the hearing. None of them recalled X going to the toilet while she was at the party. The father described that the party went for several hours, but that he was unsure whether X went to the toilet. He presumed that she had. He said that he had not taken her to the toilet, but that she could have gone to the toilet by herself. He accepted that X would occasionally ask the father for help to go to the toilet when she was doing a poo. He also said that she would tell him when she was going to the toilet and he would stand outside the door to make sure that she used toilet paper to wipe herself. None of them observed anything about X that day that they considered unusual or indicative that something had happened to her.
The father’s sister, Ms E, who was also at the birthday party, gave evidence that she did not see how the father would have had the opportunity to abuse X at the party given the number of people in attendance.
The paternal grandmother described that in total there were 23 people at the party: 12 adults and 11 children.
The paternal grandmother described that X played on a scooter, did the Nut Bush (a dance) and also played with the dog. Although she described that she thought she would have seen if X was upset, she accepted that she did not observe X on the trampoline (that the father asserted she had played upon).
The birthday party took place at a property where the father’s parents and sister live. The building was one with an extension. Both the main building (referred to as upstairs and being a few steps higher than the other) and the extension (referred to as downstairs) had a toilet. The toilet in the extension was in the laundry near the entry, and in the upstairs main house off a hallway.
The upstairs toilet was in a room by itself, described as about one metre wide and long enough to be able to walk in, turn around and shut the door. The paternal grandmother did not consider that it was big enough for two people. There is a lock on the door. The downstairs toilet is in an ensuite with a shower and basin also in the room. There is also a lock on that door.
That evening, the mother noticed discharge in X’s underwear again and took a picture of it, but subsequently deleted it.
X subsequently made a number of comments sometime later in October 2016, as recorded below, about what had occurred at the birthday party, suggestive of X having been abused by the father during the party.
Prior to making those statements, in September 2016, the mother took X to the G Region to see the father for Father’s Day. The mother was uncomfortable at suggestions made by the father that she and X could shower at his place. She gave no description of X being resistant to or becoming upset about visiting the father at this stage. The mother accepted that from the last visit in September 2016, she was unable to identify the father doing anything “nasty” to X.
This was the last visit between X and the father until court ordered supervised time occurred in December 2019, by which stage X had become highly resistant to contact with the father in any form.
Text messages 2286–2321 on 11 October 2016 include arrangements by the parties for X to spend time with the father on 22 October 2016 and what they might do together. They subsequently show that the visit did not take place on the basis that X was unwell.
In October 2016, the mother heard X say, whilst reading an unidentified book apparently to herself “Only daddies show their doodles, not pops.” The mother then started to record X as set out in greater detail below. Although the mother now retrospectively identifies other events as disclosures made by X, this is the first that she contemporaneously identified in such a manner. The mother says that this was the occasion when the mother started to suspect abuse, saying that she needed to find out what was going on.
During cross-examination the mother identified this conversation with X as taking place on Sunday 16 October 2016, on the basis that she subsequently spoke with the welfare agency on Thursday 20 October 2016 and represented to them that the conversation with X had occurred on the previous Sunday, being 16 October 2016.
However, the mother subsequently dated this conversation from her telephone as occurring on Friday 14 October 2016, some days earlier than she initially told the welfare agency. That is, this first identification by the mother that X was making a disclosure of sexual abuse did not occur when shortly thereafter represented by the mother to the investigating authorities.
The effect of this is that it was almost one week from the recording to when the mother spoke with the welfare agency about the asserted disclosure, rather than the four days that she described.
These variances call into question the mother’s recall (even shortly after) of the circumstances of the asserted disclosure. It may be observed that the first part of the asserted disclosure is heavily reliant upon the mother’s recollection. It was also suggested to the mother that the actual explanation for the recording taking place earlier than she reported was that it was a “dress rehearsal” of what she wanted X to say. The mother denied this saying she must simply have got the date wrong when she spoke with the welfare agency.
The maternal grandmother says that the mother told her of this comment made by X at the time it occurred.
While the mother says that she recalls parts of the unrecorded conversation with X, some caution should be exercised in relation to the aspect of the conversation that is reliant on her recollection rather than the recording, particularly where other aspects of the account, such as the day of the week that it occurred, as shortly thereafter described to the welfare agency, were quite inaccurate.
The mother, in her trial affidavit, asserts that the balance of the unrecorded part of the conversation, after X had said “only daddies show their doodles, not pops” was as follows:
Me:      “What did you say?”
[X]:[X] was hesitant but repeated what she had said; “Only daddies show their doodles, not pops.”
Me:      In a calm voice, I asked “What do you mean by that?”
[X]: “Daddy was sitting in the bathroom. He dragged me into the toilet and showed me his doodle.”
Me:      “When did this happen?”
[X]: “At [N’s] birthday party, daddy asked me to come into the toilet. He was sitting there and showed me his doodle.”
I was incredibly alarmed. I stayed calm. I didn’t fully believe what [X] was saying so I asked her what it looked like.
Me:      “What did it look like?”
[X]: [X] then ran her finger upright down near her vagina and said “it was straight and had a hole in the top where wee comes out”
Me:      “He shouldn’t have done that”
[X]:      I told nanny and she said he wouldn’t do that and he shouldn’t do that again[55]
[55] Affidavit of the mother filed 29 January 2021, paragraph 84.
The mother accepted that X may have gone so far as to describe that when the father dragged her into the toilet she was holding onto the ground to try to stop from being pulled into the toilet.[56] The mother described that she thought that this was unrealistic and so decided to record it because it was strange. The maternal grandmother could not recall the mother describing X being dragged into the toilet. It was an aspect of the description that the mother did not repeat after she had taken X to see the police, as she omitted it from her later descriptions.
[56] Transcript 20 April 2021, p. 401 lines 5–9.
The paternal grandmother denies that X either said to her that the father had done this, nor that she had responded in the manner attributed to X.
The mother says that she then discreetly recorded the conversation from a point part way through. In her affidavit in reply filed 3 April 2021, she sets out the conversation as follows:
[Ms Booker]:   Where were you when daddy showed you his penis, his doodle?
[X]:     Um, it was in this book
[Ms Booker]:   Yeah
[X]:     None doodles showed allowed
[Ms Booker]:   That’s right
[Ms Booker]:   And what did you tell me before?
[X]:     Um, the one that I just told you
[Ms Booker]:   Yeah
[Ms Booker]:   So where were you when he showed you his doodle?
[X]:     *Cough*
[X]:     At the toilet
[Ms Booker]:   Yeah
[X]:     you can just pretend...
[Ms Booker] at the same time as [X]:    And what did he do
[X]:     ...this is a boat (talking about my cleaning bucket)
[Ms Booker]:   Yep
[Ms Booker]:   And tell me what you told me before
[X]:     Um, I didn’t know what else that I told? You
[Ms Booker]:   Well tell me again, I can’t remember, I can’t remember
[X]:Um daddy's doodles showed allowed if they’re really good, but they aren’t good because they always show they’re doodles every day, they even have the penis vagina. And they never paint all day. And pop’s don’t show they’re doodles only daddy’s
[Ms Booker]:   Oh, so when, when was that, [N’s] birthday did you say?
[X]:     Yeah
[Ms Booker]:   Hmm
[Ms Booker]:   So was he actually going to the toilet though?
[X]:     *must have nodded*
[Ms Booker]:   Yeah, and did he grab you like you said or no?
[X]:     Yeah
[Ms Booker]:   What did he do?
[X]:     He showed me his penis
[Ms Booker]:   and what did it look like?
[X]:Um, it was straight and it had ?? a hole in it and where his wee comes out of and
[Ms Booker]:   Ok
[X]:     And he showed me his yellow wee too
[Ms Booker]:   Oh yucky *nervous laugh* oh okay well you know that that’s not right, you shouldn’t see other people’s private areas
[X]:     And he even put coconut water in that toilet too.
[Ms Booker]]: Hmm, well you know that your private areas shouldn’t be seen by anybody else and you should not see anyone else’s private areas, should you? No, okay
[X]:     Only they have to show they’re heads only[57]
[57] Affidavit of the mother filed 3 April 2021, paragraph 61.
Mr H was asked about the exchange and considered that not only did X’s statements not make sense but that the mother’s role in the conversation was “horribly leading” and featured “erroneously suggestive questions.” He further observed that this description was not critical of the mother herself, noting the difficulties in the situation faced by the mother.[58] Of particular note he observed that once children “say these things they become embedded as real.” Although the mother represented that it was to record what X had just said prior to the recording, Mr H observed that such did not diminish his concern regarding the nature of the conversation as “it’s questioning that’s coming from a base of suspicion so it’s likely there will be a co-construction of a new reality that then, to X, has the very high risk of becoming real.”[59]
[58] Transcript 21 April 2021, p.557 lines 19–20.
[59] Transcript 21 April 2021, p.557 lines 38–40.
The identified risk of co-construction, particularly when seen in the light of the inaccuracy of the mother’s recall, shortly after the incident to the welfare agency, and the uncertainty of what actually passed between X and the mother prior to the recording, calls for strong caution in relation to the non-recorded aspects of the conversation, as well as caution in relation to the suggestive nature of what is then recorded.
The mother says that this conversation marked X starting to say that she did not like her father, although it was not when she started to become “really distressed.”[60]
[60] Transcript 20 April 2021, p.381 line 46.
The father denies ever showing X his penis or referring to it as his “doodle.”

As to the place for therapy in this difficult situation, Mr H gave differential recommendations:
It would be sensible in the short term to suspend psychological treatment until there is a testing of evidence. If the court determines that [X] has been sexually abused by [Mr Thompson], then it would make sense for her to see her previous therapist. If however, the court determines that the allegations of abuse are a false-positive, to perpetuate treatment that works on the presumption that abuse has occurred is likely to reinforce the belief that abuse has occurred. It is ultimately my view that if [X] is to have a relationship with her father, that this will have to be with the support and encouragement of her mother, and that this in turn will require her to reflect upon alternative explanations for [X's] behaviour other than sexual abuse. It is not likely to be helpful for [X] to see a therapist to assist her to consider the possibility that she has not been abused by her father, if the important people around her continue to believe that she has.[121]
[121] Affidavit of Mr H filed 12 November, Annexure B, page 12.
In order for X to be able to have a relationship with the father, and to see the benefits of such a relationship, Mr H ultimately identified that it would be necessary for the family to be an “emotional bridge” that could enable such to happen. Ideally, that would involve the maternal family being able to say that they were in error about X having been harmed by the father, that they were able to be “warm and engaging” regarding the father, and were able to give X the experience of seeing the parents engaging positively together. He did not consider that it would be effective to merely impose an outcome on X, nor would it ameliorate the impact on her by informing her that the court had concluded that there was no risk, or even by engaging in counselling to such an end, without the support of the family and, preferably, an experience supported by positive interaction between the parents. He described:
If there was such a thing as a magic wand, and we waved it over the family such that [Mr Thompson] came to wherever it was that Mum was living, they were able to be polite together, they were able to spend time together, [X] was able to have a relationship with her dad from the safety of time with her mum, she could see them being warm and engaging and talking about her as her parents, that does seem somewhat fanciful to me. But that’s really what needs to happen. You know, and, again, I’m trying to think of analogies, that children might meet grandparents who live overseas for the first time, and quickly warm to them because the message to the children is that the relationship is important from the parents. And the children are encouraged, and the grandparents embrace the children from the safety and nurturance of their parents. So the bridge that connects those is an emotional bridge that has an open gate. I don’t know if that’s the case with this family, unfortunately.[122]
...
I think certainly in the first instance, unless there is an experience for [X] that her parents can be together in the same place, but they can be parental---
Yes?------and relate to each other in a relatively positive way. All of those contextual things that are so obvious and important, I don’t think it’s going to be possible for [X] to make that transition into the psychological space occupied by her dad until she’s considerably older, if at all.[123]
[122] Transcript 21 April 2021, p.495 lines 1–13.
[123] Transcript 21 April 2021, p.495 lines 25–32.
Further reinforcing those issues Mr H further described:
The most –common sense dictates that the easiest way to stop it is to sit down and say, “Hey [X], look. We have spoken about this. We have really given it thought. I think we may have made a mistake on this. I think there is no risk and no danger. Let’s give it a go and let’s make it happen. I think it’s going to be okay.” That is with the creating of the bridge and the reassurance from Mum and mum’s side of the family. The other option is to say, “Look, the judge, who is really smart, has heard everybody and has given a lot of thought to this and has decided this.” That is another way. A third way is to simply say, “You’re going to spend time with your dad to prove to you that there is no danger and risk.” That is not likely to ameliorate her anxiety and distress at the point of transition. Whether she calms and settles or whether she becomes more symptomatic – really difficult to know. I know what is a more gentle way of doing it and what is a more sensible way of doing it. I do not know whether it is possible to even contemplate that at this point.[124]
...
If the – if there is no support from the maternal family because they believe that there’s a risk to [X] and [X’s] forced to spend time with her father, on the one hand she might develop a relationship with him, which would be helpful to her?---Yes.
What’s the other end of that equation? What can go wrong for [X]?---The other end of that equation---
Yes?------ is that she becomes highly symptomatic. She can’t shift past the belief and the conviction that her father’s a risk for her. That he’s dangerous. That she will avoid him. That she won’t settle. That she will be anxious. That she will become increasingly resistant to any prospect of seeing him, dig her heels in, say she’s scared. I think that’s very, very likely.[125]
“Should [X] be seeing the father?”, and your answer – you answered your own question by say, “Yes, she should”, but, of course, that would be in a context where his Honour had made a finding that there was no unacceptable risk associated with sexual abuse. That would of course---?---Yes.[126]
[124] Transcript 21 April 2021, p. 523 lines 14–27.
[125] Transcript 21 April 2021, p. 527 lines 27–40.
[126] Transcript 21 April 2021, p. 528 lines 25–28.
It may be seen that in coming to these conclusions, Mr H considered that the role of the mother has had a profound impact on X, in circumstances where he did not think that X has been sexually abused by the father. The reactions of the mother and her influence upon X, in the absence of abuse has profoundly impacted X and her attitudes to and view of the father. However, at the same time he considered that the mother’s responses were grounded in her concern for X:
Things that [Ms Booker], probably, has done that’s not helped the situation. It’s kind of understandable what she’s done and why. Do I think she’s being malicious? I don’t think she’s being malicious but – I think she’s become really anxious and has become so invested in this belief out of fear, that she can’t see anything else – and hence the reason we’re here.[127]
[127] Transcript 21 April 2021, p.547 lines 21–29.
Discussion
As identified earlier in the judgment, in this case issues of risk to X, whether by virtue of abuse or neglect or family violence, or otherwise, and the availability or lack of the benefits of meaningful relationship with the father, and of relationships with the paternal grandparents formed the central focus of the proceedings.
It is convenient to firstly deal with the question of whether X faces an unacceptable risk of sexual abuse should she spend time with the father. She does not.
Applying the approach to such risk as set out in the Principles section of the judgment above, it is necessary first to ask whether the allegations of sexualised behaviour by the father have been established to the civil standard. Each of the parties and the ICL conceded that the evidence was not of such strength to enable such a finding to be made. That concession was well made.
It is then appropriate to ask whether a finding should be made, again to the civil standard, that the father has not engaged in the alleged acts of sexual abuse underpinning the risk of harm case. In this case such a finding should be made.
The father denies engaging in any sexually abusive acts. Although in some respects his credibility was successfully challenged during the trial, this was not to a degree that denuded the father’s denial of engaging in sexual acts upon X of probative weight. Importantly, as identified in the body of the judgment, the component allegations of abusive acts, or reactions by X, were compromised to a degree that little, if any, probative weight could or should be placed upon them to establish that the father has sexually abused X.
Even if a global view of the allegations is taken, such does not lead to a different conclusion given the frailties of each of the underlying allegations. The cumulation of the allegations came in the context of each allegation that came earlier in the chronology. The weaknesses and deficits identified in the earlier allegations form the context for the later allegations. The risks of suggestibility, the opacity of the surrounding conversations, and the potential effects of the reactions of those around X point to the whole not being greater than the sum of its parts, particularly where, as identified here by Mr H, X is impacted by the views and reactions of the mother and maternal family.
That leaves a lack of material of probative weight to establish the acts such that, contradicted by the father’s denial, the conclusion should be reached on the balance of probabilities that he has not engaged in sexual acts toward X. That is, the evidence of the purported acts is more than countered by the evidence of the father, such that I accept his denial of engaging in the sexual abuse of X.
The acceptance of the father’s case that he has not engaged in the sexual abuse of X means that it should be concluded that there is no unacceptable risk of sexual abuse of X from the father.
This however does not dispose of the unacceptable risk issues. The ICL submitted that X will be at unacceptable risk of psychological harm if she is forced to spend time with the father, with such harm being the consequence of X's now firmly held view that the father has sexually abused her, and her strong opposition in the light of that to spending time with him. Sadly, despite the finding that the father has not abused X, it should be concluded that X is at unacceptable risk of psychological harm if she is forced to spend time with him by operation of court orders for time.
X’s representations to the mother, maternal grandmother, Dr F, the H Contact Centre workers and Mr H, support a finding that X now considers that she was sexually abused by the father, even though she was not. This finding is given further support by the strident and determined manner in which X has resisted time with the father, such that the supervised time orders, and telephone time arrangements, failed due to that resistance.
As identified by Mr H, this is not a perspective that is likely remedied by the conclusion in this judgment that such has not occurred. It is not a perspective likely remedied by the imposition of time, as not only can it be considered that it is highly likely that X would be traumatised, oppositional and refuse such time, but also that such an order would also leave X considering that she has not been listened to. There is an unacceptable risk of psychological harm to X in such circumstances. The poor trajectory of the previous supervised time and telephone time also gives a strong indication of the likely failure of either the imposition of a further such regime, or the imposition of unsupervised time with the father.
The only potential route away from this result is with the support of the mother and maternal family for the father spending time with X, based on their acceptance that X is not at risk from the father. Such support would need to be able to extend to X being able to observe positive interaction between her parents so as to communicate to her in an experiential manner both that the mother considers that X is not at risk and that X is in fact not at risk from the father.
If this were able to be achieved it would be of immense benefit to X. It would be of benefit to X because it would be the means to disabuse her of the notion that she has been sexually abused. This is of importance, as the effects of an erroneous belief held by X that she has been abused are similar to, if not the same as the effects on X of actually having been abused. It is also of importance, as this is the means by which X could receive the benefits of meaningful relationship with the father and paternal family. Even accepting some criticism of his parenting capacity, the father cares deeply (as illustrated in the text message log) about X and represents a substantial part of her developing identity. The effective loss of the father is a substantial loss to X.
However, these benefits are contingent benefits. They are reliant upon a view being adopted by the mother that the father is not a risk to X, which equates in this instance to a view that the father has not abused X. Despite the criticisms made of the mother, and the manner and terms in which she has reported the purported disclosures as identified in this judgment, I accept that the mother genuinely holds the view that the father has abused X. This is not a view that benefits X as the mother’s holding of that view impacts upon X’s view of the father.
While it was suggested that the mother has taken advantage of X’s comments without believing the truth, in order to shore up her position in D Town, and to clean the father out of their lives so that they can start afresh, I am not prepared to make such a finding.
In aid of this suggestion, the father has pointed to a close temporal relationship in the mother’s diary between the father raising the possibility of court intervention post separation, and the mother first noting that X was saying that the father had touched her vagina. The father further observes that when X was first taken to the police, the mother was raising concerns that the father may withdraw his agreement for the mother and X to relocate from Queensland to NSW. He further notes that various steps taken by the mother, such as the taking of photographs of X’s underwear to show the presence of a discharge were not provided by the mother to the police, nor to a doctor, leaving open the question as to whether they were taken and retained by the mother in case there was a need to place pressure on the father to ensure that the mother could move to NSW. The father further says that the mother has painted a false picture of their background circumstances in the relationship in accusing him of financial abuse.
He further points to inconsistency in the mother’s reporting of X’s disclosures, in the timing of the reported disclosures that he suggests indicates rehearsal of the claims by the mother with X in relation to one of the key incidents involving her attendance at a birthday party. The father points to the mother producing further evidence seemingly to meet weaknesses in her case suggested by the report of the single expert. He seeks that the court pay close attention to the timing of the mother’s claims being proximate to her move to NSW, and further draws attention to the manner in which the mother communicated with X’s school about him.
Observing those matters, I am not prepared to reach the conclusions urged by the father. The equivocal nature of the factors identified by the father, and the limited focus upon them in the proceedings, mean that it would be an unjustified leap to find that the mother was deliberately manipulating the proceedings through the use of the allegations.
Further, even though I have found that the father has not abused X, it can be understood why the mother’s recall and recordings of things said by X may cause her to believe that something untoward has occurred. I accept that she deeply holds the belief that the father has abused X. I am, at present, unable to conclude that the mother has the capacity to reflect on the conclusions reached in this judgment about why X’s statements do not mean that she has been abused, to enable the mother to modify her belief.
Whilst the mother continues to hold this belief, there is no “emotional bridge” as described by Mr H, for X to cross back into relationship with the father. Despite the terms of this judgment, I do not consider it to be likely that the mother’s view will change, given both the evidence at trial and her presentation during the trial.
However, the terms of the orders to be made in this case should make provision for such a change taking place, such that the parties are able to vary the arrangements to X’s benefit.
The consequence of these conclusions is that, aside from such provision, there should not be an order for X to spend time with the father. Given my findings regarding sexual abuse, and given the terrible consequences faced by X in her current position and state of mind, this is a difficult conclusion to swallow. However, it reflects the reality of X's current circumstances, and both the harm that may be occasioned to her by, and the inefficacy of orders for time with the father.
These conclusions also shape the resolution of the dispute between the parties as to the allocation of parental responsibility. The presumption in favour of equally shared parental responsibility is here displaced as not being in X’s best interests where orders will be made that do not provide for her to spend time with the father. An order for the sharing of parental responsibility does not advance X’s interests in those circumstances, particularly where there is no extant relationship between the father and the mother. The parents cannot be anticipated to have the capacity to communicate in the manner required by an order for the sharing of parental responsibility. Where effectively, the father is unable to be involved in X’s life, he is not in a position to adequately contribute to long term decisions for her wellbeing. Further, were his involvement in such to come to X’s attention, there is scope for her to be adversely affected while she continues to hold her current views of the father.
An order will be made for the mother to exercise sole parental responsibility.
Whilst the father also pursued self-executing orders, the above reasoning is sufficient to dispose of such. It should be concluded that this is not a case in which potentially prolonging the litigation by making interim orders benefits X. Nor is it a case where it could be predicted that a self-executing order for a change in residence could be contemplated as being in X's best interest in the above circumstances.
Although the mother sought a positive restraint be placed on the father to prevent him coming into contact with X other than per the orders, the circumstances do not justify such an injunction. The father has not behaved in a manner suggestive of him approaching X other than in accordance with the orders. Rather, consideration of the history of the father’s interaction with X shows his willingness to forego that which was ordered, such as telephone time, in consideration of X. This leaves the concern raised by the mother unsupported by adequate justification.
What remains is the application of the paternal grandparents for electronic communication and face-to-face time with X. The mother supports there being electronic communication, and also face-to-face time, provided that face to face time is supervised by the maternal grandmother or other nominee of the mother.
In relation to the issue of supervision, I do not accept that the paternal grandparents are likely to harm X. I do not accept that the paternal grandmother physically chastised X. Even if she had, I do not consider that there is any significant risk of such occurring in the future. Where there is no such risk, Mr H considered that there is no warrant for supervision of their time.
However, it should also be considered that at present, X does not have a relationship with the paternal grandparents. X’s views about them as contained in the report by Mr H were:
[X] had some recollection of her paternal grandparents and that she used to visit with her father at their home, but in reality, was able to reflect little, commenting that it was a long time ago. [X] explained that she didn’t see her grandparents because of what her father did, that her mother did not want her to visit with her father, that her mother was worried that her father would hurt her, and that this was the reason why the family moved from [City L] to New South Wales.[128]
...
[X] now has a very fixed and negative view in relation to her father and anyone associated with her father. Notwithstanding her earlier statements that she didn’t remember her grandparents and could barely recall spending time with them, she was in a moment of hindsight and clarity able to elaborate that they were not very nice, that her grandmother used to smack her on the bum with a wooden spoon, that she was now frightened that her grandmother might physically assault her again and that her grandfather might do something equally bad. She told me that she was worried that her grandparents might be nasty to her, that they might hurt her or they might be mean to her.[129]
[128] Affidavit of Mr H filed 2 November 2020, paragraph 43.
[129] Affidavit of Mr H filed 2 November 2020, paragraph 45.

It is difficult to envisage how X could develop a relationship with the paternal grandparents, given her strong opposition to the father, and the manner of her expression to Mr H, unless there is adequate support from the mother and maternal family for it happening.
This was the view of Mr H, as in identifying potential benefits for X spending regular time with the paternal grandparents, and recommending that she see them at a higher frequency than that proposed by the mother, he also noted that for it to work it required the support of the maternal family:
So once again, if mum and her family can support it, it's more likely to be successful? I disagree with that. I would say that if her mum and her mum’s family support it, it will be successful, is what I think.
And if her mum and her mum’s family can’t support it,,it will not be successful? Then I think [X] is going to have difficulties. And I don’t think it will.[130]
[130] Transcript 21 April 2021, p.526 lines 19–25.
In a case where the attitudes of the maternal family are of such significance to how X perceives the people around her and function, I accept the assessment of Mr H as to the necessity of the support of the mother and her family for the success of X spending time with the paternal grandparents. That calls for assessment of what support is actually available from the mother and her family.
The final hearing revealed that the mother’s attitude, and her family’s attitude to the paternal family was not positive. They were critical of the paternal family in a manner that lacked the understanding that they, like the maternal family, were facing a very difficult situation following the raising of the allegations where it was unclear how to act. This does not point to a positive attitude for interaction with the paternal family.
The limitations in the support for the paternal grandparent’s time are also seen in its conditional nature, in the mother’s position that it should be supervised. Positively, the maternal grandmother has agreed to undertake the supervision.
Given the attitudes expressed by X toward the paternal family, and the essential role of the support of the mother and the maternal family for X to restore a relationship with the paternal grandparents, even though I do not regard supervision as necessary to protect X from the paternal grandparents, it is necessary to secure the maternal family’s support or confidence in the visits.
Without the initial support of the family that is conditioned on supervision, I cannot see time in any fashion commencing or being a positive experience for X. That is not a criticism of the paternal grandparents. It is a recognition of X’s current views about the father and the paternal family, views that are not grounded in what has actually occurred.
The orders proposed by the mother allow departure from the restrictions including the requirement for supervision, by agreement. Without predicting that it would occur, if the time between the paternal grandparents and X progresses positively there is scope for the supervision to end, and also for it to transition to overnight or holiday times by agreement.
There was disagreement as to whether the visits should occur on not less than three, or not less than four school holiday periods each year, or in the event that the father is not spending time with X, each six weeks. Noting the evidence of Mr H that spoke to the benefits of even higher frequencies, and noting that the arrangements can be varied by agreement, the default position should be four occasions. Visits each six weeks of the nature proposed are at a frequency that imposes an undue burden on X and the maternal grandmother and ultimately, on the paternal grandparents’ case required alternating between Queensland and D Town. That is not presently workable given the supervised nature of the visits.
The parties all agreed that there should be provision for non-face-to-face communication with X. That communication should be in the terms as proposed by the ICL, save for a modification to preference electronic communication that contains a visual component, rather than being restricted to the use of a telephone. The provision for electronic communication should commence following the first of the face-to-face visits.
In relation to time with the paternal grandparents, it should be observed that the success of such for X, and the benefits of such for X are very much held in the hands of the mother and the maternal family. Given the observations of Mr H, it is their support for it that is what is required. How they speak about it with X, their capacity to both assure X that it is good and safe, and their ability to interact with the paternal family in a positive manner are the things that enable good to be brought to X from these orders.
Conclusion
Orders will be made generally in accordance with those proposed by the ICL.
As proposed by the ICL (and agreed by the mother) it is still appropriate that the father be provided with updates in relation to X as, in the event that there is a softening of X's attitude and she expresses a desire to have contact with him, she will be benefitted by him having good working knowledge of what s going on in X’s life. It is sufficient that these occur each second month.
The orders will provide for the mother to hold sole parental responsibility for X and for X to live with the mother. They will not make provision for the father to spend time with X, other than as agreed with the mother. However, the mother should be restrained from taking X to counselling where the sole purpose relates to addressing issues pertaining to the allegations of sexual abuse. Given Mr H’s evidence and my findings, counselling X in relation to sexual abuse in the absence of such abuse is not to her benefit.
The orders will provide for time and communication with the paternal grandparents and for the exchange of sufficient information to allow that to occur.
Injunctions are necessary to ensure both that the paternal grandparents will not discuss the proceedings with X. Their discussion of such cannot be productive of good for X, and although they have indicated that they will not do so, it is appropriate to buttress that good will due to the difficulties they will face if X raises the issue. Those difficulties may be hoped to be ameliorated if the grandparents are in a position to say they are not allowed by the court to talk about it.
Further, the mother agreed to be restrained by injunction from identifying X as the victim of sexual abuse to any third party, save for a treating medical or mental health practitioner for the mother or for X. Such an order should be made. The mother should also be at liberty to provide such practitioners with a copy of this judgment, as it deals with the issue of whether X has been so abused.
Finally, the orders will provide for the ICL to explain the orders to X and, in her discretion, to explain to X the reasons. While Mr H doubted that the ICL’s communication to X of such would be effective, it is a matter best left for the judgment of the ICL in her interaction with X.

I certify that the preceding three hundred and ninety-eight (398) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 14 June 2022

File number:	BRC 14778 of 2018
Judgment of:	GILL J
Date of judgment:	14 June 2022
Catchwords:	FAMILY LAW – CHILDREN – Parental responsibility – With whom a child spends time – Best interests of a child – Father and paternal grandparents seeking time with the child in context where allegations of child sexual abuse are levelled at the father – Whether the father poses an unacceptable risk of physical sexual harm and psychological harm towards the child – Where the child is impacted by the mother and maternal family’s firmly held beliefs that abuse occurred by the father – Positive finding that father has not engaged in physical sexual abuse of the child – Where orders are made for no time with the father due to consequential risk of psychological harm of the child – Orders made for paternal grandparents to have limited, supervised time with the child.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited:	Bant & Clayton [2019] FamCAFC 198 Fitzwater & Fitzwater [2019] FamCAFC 251 Johnson v Page [2007] FamCA 1235 Jollie & Dysart [2014] FamCAFC 149 M v M (1988) 166 CLR 69 Marsden & Winch (No. 3) [2007] FamCA 1364 Mazorski v Albright (2007) 37 Fam LR 518 N and S and the Separate Representative (1996) FLC 92-655 Sahrawi & Hadrami [2018] FamCAFC 170 S v S [1994] NZFLR 26
Division:	Division 1 First Instance
Number of paragraphs:	398
Date of hearing:	15–16 April 2021, 19–21 April 2021 & 4 May 2021
Place:	City S
Counsel for the Applicant:	Ms Davis
Solicitor for the Applicant:	Condon Charles Lawyers
Counsel for the First Respondent:	Dr Behrens
Solicitor for the First Respondent:	Gordon Lawyers
Solicitor for the Second Respondent:	Condon Charles Lawyers
Solicitor for the Independent Children's Lawyer:	Legal Aid, ACT

BRC 14778 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR THOMPSON Applicant
AND:	MS BOOKER First Respondent MS B THOMPSON Second Respondent MR V THOMPSON Third Respondent

order made by:	GILL J
DATE OF ORDER:	14 JUNE 2022