Tonkinson & Dallas

[2021] FamCA 173

FAMILY COURT OF AUSTRALIA

Tonkinson & Dallas [2021] FamCA 173

File number(s):	NCC 725 of 2016
Judgment of:	AUSTIN J
Date of judgment:	1 April 2021
Catchwords:	FAMILY LAW – CHILDREN – PARENTING – Best interests – With whom the children shall live and spend time – Where final parenting orders were previously made with the parties’ consent – Where the mother commenced fresh proceedings – Where the children currently live with the father and spend time with the mother – Where the children have lived with the father for the past five years – Where the children enjoy meaningful relationships with both parties – Where the mother sought to reverse the children’s residence – Where the mother alleges the father is deliberately causing the children’s relationships with her to deteriorate – Where the father alleges the mother’s partner poses a risk of harm to the children – Where the father sought an injunction which precludes the children from being left unsupervised with the mother’s partner – Where the risks of harm alleged by the father are not substantiated – Where the father is not acting deliberately to impair the children’ relationships with the mother – Ordered the children continue to live with the father and spend substantial time with the mother – Parental responsibility – Where the parties and the Independent Children’s Lawyer mutually submitted for the allocation of equal shared parental responsibility – Ordered the parties have equal shared parental responsibility – Costs reserved for 28 days.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Division:	General Division
Number of paragraphs:	95
Date of hearing:	15, 16 & 17 March 2021
Place:	Newcastle
Solicitor for the Applicant:	Western Sydney Solicitors
Counsel for the Respondent:	Mr Boyd
Solicitor for the Respondent:	Joplin Lawyers
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

NCC 725 of 2016
BETWEEN:	MS TONKINSON Applicant
AND:	MR DALLAS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	1 APRIL 2021

THE COURT ORDERS THAT:

1.All former parenting orders in respect of the following children are discharged:

(a)X, born … 2010; and

(b)Z, born … 2012.

2.The parties shall have equal shared parental responsibility for the children.

3.The children shall live with the father.

4.Each of the parties shall take all reasonable steps to ensure the children spend time with the mother as follows:

(a)During NSW public school terms, each alternate week from after school on Thursday until the commencement of school on the following Tuesday, commencing on the first Thursday of each term.

(b)During the NSW Autumn, Winter and Spring school holidays, from the conclusion of school on Thursday in the last week of school term until 5.00 pm on the second Saturday thereafter.

(c)During the NSW Summer school holidays:

(i)From the conclusion of school on the last day of school term until 12.00 noon on 7 January when the holidays commence in an odd numbered year; and

(ii)From 12.00 noon on 7 January until 12.00 noon on the last day before school resumes in the new school year in the years when the holidays commence in an even numbered year.

5.Orders 3 and 4 are suspended during the following periods:

(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years.

(b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

6.For the purposes of implementing Orders 3, 4 and 5, the parties shall respectively ensure the children’s:

(a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

(b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

(c)Collection from and return to the McDonalds Restaurant at B Town, NSW.

7.Each party is restrained from causing or allowing the children to be counselled by any medical therapist at or associated with the psychological practice known as “C Psychology”.

8.Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

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

10.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about their condition and treatment.

11.Each party shall notify the other of the name and contact details of any medical professional to whom the children are taken for consultation.

12.Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

13.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14.The parties shall forthwith enrol themselves to commence and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

15.Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate, the reasons for such orders.

16.In the event of the police or a prescribed child welfare authority being notified by any person that either child has been or is the subject of actual or potential abuse, each party is authorised to provide to the police and prescribed child welfare authority:

(a)A copy of these orders;

(b)A copy of these reasons for judgment; and

(c)A copy of the Family Report dated 23 March 2020.

17.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

18.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal, the expiration of the applicable appeal period, and compliance with Orders 14 and 15.

19.Costs are reserved for 28 days.

20.Any and all other outstanding applications are dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

AUSTIN J

1. These proceedings between the applicant mother and respondent father concern another dispute over their two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The children were born in December 2010 and June 2012 and are now aged 10 and eight years respectively.

2. Proceedings between the parties in respect of the children were last resolved on 25 July 2017, when Cleary J made consent orders which provided for the parties to have equal shared parental responsibility for the children, for them to live with the father, and for them to spend time with the mother under an expanding regime. From the beginning of 2018, the children were to spend time with the mother for three nights each fortnight during school terms, for one-half of the school holidays, and on other special occasions.

3. The mother commenced these proceedings in November 2019 intending to try and reverse the children’s residence but maintaining the allocation of equal shared parental responsibility for them. The father joined issue, intending to acquire sole parental responsibility for the children and to drastically tighten their personal interaction with the mother.

4. At the heart of the mother’s application lay her concern the father is deliberately causing the children’s relationships with her to deteriorate, in which process the paternal grandmother is complicit.

5. The father, conversely, asserted the children were at risk of harm in the mother’s care in two discrete ways: first, by sexual abuse perpetrated by the mother’s partner (“Mr D”); and secondly, by physical abuse perpetrated by both the mother and Mr D.

6. These proceedings were commenced in the Federal Circuit Court of Australia at Parramatta, NSW, but were transferred to the Family Court of Australia for determination and then, in December 2019, transferred to the Newcastle registry.

7. In December 2019, interim orders were made with the parties’ consent discharging the July 2017 orders but substituting similar orders for them. Additionally, the mother was restrained from allowing any interaction between the children and Mr D pending resolution of the factual dispute over whether he poses any risk of harm to them, the parties were mutually restrained from administering physical discipline to the children, and the mother’s contravention application, filed in October 2019, was dismissed.

8. The Family Report, which was prepared in March 2020 and released to the parties, did not help them reach a compromise.

9. In December 2020, the proceedings were listed for trial in March 2021.

   PROPOSALS

10. The mother sought the orders set out in her Amended Application filed on 1 March 2021. The father took no issue with its late filing and service.[1] In essence, she sought that the parties retain equal shared parental responsibility for the children, but that they live with her instead. She proposed that the children spend time with the father on alternate weekends in school terms (usually confined to only two nights), for one-half of all school holidays, and on other special occasions.

    [1] Order 2 made on 2 December 2020

11. Throughout the litigation, the father did not amend the Response he originally filed on 26 November 2019, in which he sought to retain the children’s residence, but to constrict the time spent by the children with the mother to only one six-hour visit each month and on a few other special occasions. He also sought to acquire sole parental responsibility for the children. However, his proposal evolved as the trial progressed.

12. On the cusp of the trial, the father filed a Case Outline document informing of his intention to seek “a continuation of the present regime” and forewarning he would even welcome an expansion of the children’s weekend visits with the mother. His new proposal was not entirely unexpected because, in March 2020, he told the Family Consultant he only sought to maintain the existing arrangement.[2] He abandoned his proposal for sole parental responsibility and was content to share parental responsibility for the children equally with the mother.

    [2] Family Report, para 22

13. Of course, the dramatic change to the father’s proposal necessarily implied he abandoned his allegation that the mother posed a material risk of harm to the children, which concession he expressly made as the trial commenced, but at that time he maintained his contention that Mr D poses an unacceptable risk of harm to the children. The father was satisfied such risk could be attenuated by the perpetuation of the interim injunction made in December 2019 restraining the mother from allowing the children to have any form of interaction with Mr D.

14. After the evidence closed, the father changed his position again by relaxing the terms of the proposed injunction concerning Mr D. Instead of seeking to restrain any form of contact between he and the children, the father proposed a more moderate injunction, like the one imposed in July 2017,[3] which only precluded the children from being left alone in his company.[4] The father’s counsel made clear that the change was motivated by acceptance that the evidence failed to establish Mr D posed the serious risk of harm for which the father had hitherto advocated. The father also amended his proposal in another way too. He embraced the proposal of the Independent Children’s Lawyer (“ICL”) for the children to spend five instead of only three nights each fortnight in school terms with the mother.[5]

    [3] Order 1.6 made on 25 July 2017

    [4] Exhibit F3, Order 26

    [5] Exhibit F3, Order 4(a)

15. An ICL was appointed with the parties’ consent in December 2019. She had not formulated any proposal, even tentatively, by the time the trial commenced. Before the final submissions started she tendered a minute of the orders she proposed.[6] She proposed that the children live with the father and spend substantial time with the mother, but without any restriction at all upon Mr D’s involvement with the children. She too proposed that the parties have equal shared parental responsibility for the children.

    [6] Exhibit ICL2

    EVIDENCE

16. The mother relied upon:

    (a)her affidavit, filed on 8 March 2021 (excluding paragraph 2); and

    (b)the affidavit of Mr D, filed on 8 March 2021.

17. The mother’s affidavit material was filed and served nearly a month late,[7] but neither the father nor the ICL objected to her reliance upon it.

    [7] Order 3 made on 2 December 2020

18. The father relied upon:

    (a)his affidavit, filed on 12 February 2021, the exhibit to which was tendered separately;[8] and

    (b)the affidavit of the paternal grandmother, Ms Rhonda Wright, filed on 12 February 2021, the exhibit to which was also tendered separately.[9]

    [8] Exhibit F1

    [9] Exhibit F2

19. The parties and the ICL also relied upon the Family Report, prepared by the Family Consultant on 23 March 2020.

20. The father sought to additionally rely upon the Family Report prepared in September 2016 by the former Family Consultant in the earlier proceedings between the parties, but was not permitted to do so in the face of the mother’s objection. The contents of that former Family Report remained untested, as the proceedings were concluded by consent orders in July 2017, and that Family Consultant was not available for cross-examination at this trial.

21. Miscellaneous documents relied upon by the parties and the ICL were tendered collectively in a paginated bundle.[10] The pagination was not sequential because the documents were culled from an original bundle which was much larger and the original numbering was maintained so that transcript references to the pages would not become confused.

    [10] Exhibit ICL1

    LEGAL PRINCIPLES

22. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

23. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

24. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

25. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

26. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

    CHILDREN’S BEST INTERESTS – PRIMARY CONSIDERATIONS

    Section 60CC(2)(a)

27. It was not in dispute that the children have meaningful relationships with both parents, even though the children appeared to the Family Consultant to be more engaged with the mother.[11]

    [11] Family Report, paras 80, 105, 112, 123–124, 127 and 135

28. The mother’s proposal acknowledged the father’s continuing importance in the children’s lives. Their meaningful relationships with him will survive whatever orders are now made.

29. The father’s original proposal to constrict the children’s time with the mother was not the product of any genuine concern he harbours about her posing a direct risk of harm to them. Rather, it was emblematic of his concern about the risk of harm posed to the children by Mr D, to which risk he believes the mother is either wilfully or recklessly blind. The father told the Family Consultant the mother is a “good mother”, whom he does not believe poses an unacceptable risk of harm to the children, and it is only her failure to protect the children from Mr D which worries him.[12] The mother and Mr D intend to maintain their domestic relationship, which is why the father remains concerned for the children’s welfare.  

    [12] Family Report, paras 23, 32 and 56

30. The father was eventually satisfied the risk of harm posed by Mr D to the children could be neutralised by an injunction forbidding the children from being left alone in his company, so his ultimate proposal reflected his expectation the mother would comply with the injunction. His proposal for the children to spend substantial time with the mother, in the shadow of her observance of the injunction concerning Mr D, was acknowledgement of his acceptance of the mother’s continuing importance in the children’s lives. Self-evidently though, if the risk of harm the father believes Mr D poses to the children is not substantiated then there is no need for any injunction. Regardless, as is the case in respect of the father, the children’s meaningful relationships with the mother will survive whatever orders are now made.

1. The only real controversy in these proceedings is the need for the children’s protection from harm, so it is necessary to turn attention to the evidence addressing that issue.

   Section 60CC(2)(b)

2. The father led evidence of the children being sexually and physically abused by Mr D, but abandoned his allegation that they are at risk of physical abuse by the mother.

3. Conversely, the mother alleged the children are at risk of “emotional” or “psychological” harm if they continue to live with the father. Curiously, if not inconsistently, her case was that the children were not at any tangible risk of such harm if they spend substantial time with him instead. The source of the alleged harm was contended to be the propensity of the father and paternal grandmother to impair the quality of the children’s relationships with the mother.

   Physical abuse

4. The allegations of the children’s physical abuse by the mother were difficult to fathom, given the father reported no such abuse to the Family Consultant in March 2020 and, in fact, told her the mother was a “good mother” and he had no concerns regarding her capacity to care for the children.[13] The father’s abandonment of the contention that the mother poses a risk of harm to the children makes it unnecessary to traverse the evidence pertinent to that issue.

   [13] Family Report, paras 23, 32 and 56

5. The father and paternal grandmother both alleged that, in May 2018, the youngest child had a bruise on her leg which she told them was caused by Mr D flicking her.[14] Mr D said he had never hit, hurt, or physically disciplined the children,[15] about which evidence he was not directly challenged in cross-examination. I accept the father and the paternal grandmother saw the youngest child had a bruised leg, but that does not mean it was deliberately caused by Mr D, as they apparently believe.

   [14] Father’s affidavit, paras 42–44; Paternal grandmother’s affidavit, paras 47–49

   [15] Mr D’s affidavit, para 11

6. The father alleged that, at some point after November 2019, the youngest child told him Mr D had said to her “I will kick you in the face until you die”, but he is unsure whether the child was reporting an actual recollection or simply a nightmare.[16] The father and paternal grandmother seemed unwilling to grasp the improbability that a grown man would make such a vicious threat to a young child, particularly in the context of unchallenged evidence about the warm affection which exists between Mr D and the youngest child. Like much of the evidence yet to be traversed, the father and paternal grandmother are prone to eagerly receive and accept as being literally true anything critical said by the children about either the mother or Mr D.

   [16] Father’s affidavit, para 68

7. The evidence is too weak to prove any instances of past physical abuse of the children, or the threat thereof, by Mr D. It is also too weak to establish that Mr D poses a risk of harm to the children by reason of their subjection to physical abuse.

   Sexual abuse

8. The father withheld the children from the mother in January 2016 when the eldest child reported to a female relative that Mr D had “touched her on the private parts and her breasts”, which disclosure the relative subsequently reported to the paternal grandmother. Over the next couple of days, the youngest child told the paternal grandmother she was tickled by Mr D, which the paternal grandmother interpreted to mean on her genitals.[17]

   [17] Paternal grandmother’s affidavit, paras 26–37

9. The paternal grandmother reported to the police that both children informed her that Mr D “tickles their vagina”,[18] even though she gave no evidence at all about any such report being made to her by the eldest child. Both children were formally interviewed by the police. The eldest child did not make any disclosure at all and even denied being touched on the genitals when asked direct questions about it. She even disavowed knowledge of the female relative to whom she allegedly made the first disclosure. The youngest child also denied being touched on the genitals, even when asked direct questions about it.[19] The children were then only five and three years of age respectively.

   [18] Exhibit ICL1, page 60

   [19] Exhibit ICL1, pages 60, 62–63

10. The police spoke to Mr D, who denied the allegations. The police then terminated the investigation, satisfied there was no offence to prosecute.[20]

    [20] Exhibit ICL1, page 63

11. Even though the allegations against Mr D were not substantiated, the children continued to live with the father and did not return to live with the mother. Nearly 18 months later, in July 2017, the mother consented to orders formalising that residential arrangement. Her consent was not mistakenly given as she was legally represented at the time.

12. The mother commenced these proceedings some two years later in November 2019, seeking the reversal of the children’s residence. More allegations about Mr D then surfaced shortly afterwards, which the mother did not think was mere coincidence.

13. In December 2019, the paternal grandmother met with the children’s counsellor to relate allegations of the eldest child’s sexual and physical abuse by Mr D, whilst the eldest child was asked to wait outside the room.[21] The paternal grandmother alleged Mr D touched the eldest child on the genitals twice, many months before, and threatened to kill her and the youngest child. The counsellor then reported the disclosures to the child protection hotline, but the police were apparently wrongly given to understand the allegations had been made to the counsellor by the eldest child directly rather than by the paternal grandmother.

    [21] Exhibit ICL1, page 47

14. The body of evidence before the Court is quite unsatisfactory because neither the father, the paternal grandmother, nor the female relative to whom the allegations were first made gave any direct evidence at all about the circumstances under which the eldest child’s disclosures were initially made before she was taken to the counsellor on 10 December 2019, ostensibly for the sole purpose of the allegations being formally reported. The available evidence comprises only a hearsay trail leading backwards from the counsellor’s notes, through the paternal grandmother, to a third person.

15. According to the available evidence, the first of the two sexual incidents was alleged to have occurred in a swimming pool at around Christmas 2018 and the second around Easter 2019 when the eldest child was lying on a couch. As for the attendant allegations of bodily harm, it was said Mr D threatened to kill the eldest child with a knife and kick the youngest child in the head until she was dead if the eldest child told anyone of being touched on the genitals. On the weekend the children were spending with the mother at Easter in 2019, it was furthermore alleged the eldest child was made to tell the father over the telephone she wanted to stay with the mother longer, under the threat of being choked by Mr D who had his hands wrapped around her neck during the telephone call.[22]

    [22] Exhibit ICL1, pages 17, 18, 20 and 25–47

16. The counsellor’s notes reveal the paternal grandmother alleged both children complained to her of being touched on their genitals over their clothing by Mr D,[23] but that was not the story related by the counsellor to the child protection hotline. It has never been contended that the youngest child made any independent complaint, or that she too was a victim, of sexual abuse in either 2018 or 2019. The youngest child told the Family Consultant she was innocently touched on her genitals by Mr D when she was having her nappy changed years before,[24] but that was an obvious reference to the complaint made on her behalf in 2016, about which she could not plausibly have any independent memory, implying those events have since been discussed with her.

    [23] Exhibit ICL1, page 47

    [24] Family Report, para 99

17. The eldest child was taken to the police about a week after the counsellor’s appointment and formally interviewed.[25]

    [25] Exhibit ICL1, pages 17, 72

18. She alleged that around Christmas of 2017 or 2018, while in the company of other people, she and Mr D were in a swimming pool and, when he swam past her, his hand brushed against her genitals over her clothing.[26] This version was different to the one given to the counsellor by the paternal grandmother, because it was then alleged Mr D put his hand inside the child’s clothing.[27] The difference is significant because the version given to the counsellor implies intent by the perpetrator, while the version given to police is quite consistent with inadvertent contact, which could have been entirely innocent.

    [26] Exhibit ICL1, page 72

    [27] Exhibit ICL1, page 47

19. The eldest child alleged the other occasion of sexual impropriety occurred at a birthday party held at a commercial venue and, while she was jumping on a trampoline with Mr D, he put his hand up her skirt and touched her on the genitals over her underwear. She told police that, when she reported the incident to the mother, she was slapped across the face.[28] This version is also different to the one given to the counsellor by the paternal grandmother because, at that time, she alleged the eldest child was in a room at the mother’s house when she was touched on the genitals and bottom over her clothing by Mr D[29] – not at a public venue surrounded by many other people. It is also different from the counsellor’s report to the child protection hotline, since she said the eldest child was not only in a room at the mother’s house, but lying on a couch when it happened.[30]

    [28] Exhibit ICL1, page 73

    [29] Exhibit ICL1, page 47

    [30] Exhibit ICL1, page 25

20. Mr D voluntarily participated in a formal police interview in January 2020.[31] He was not obliged to do so. He could have maintained his right to silence. He denied any impropriety. He explained to the police why it was not possible for him to have sexually abused the eldest child on either occasion as was alleged.[32] The police were satisfied Mr D’s denials were verified by “various adults” who confirmed his version of the events.[33]

    [31] Exhibit ICL1, page 70

    [32] Exhibit ICL1, page 71

    [33] Exhibit ICL1, pages 69, 71

21. In light of information obtained from Mr D and other potential witnesses, the police interviewed the eldest child a second time in January 2020. She adhered to the allegations she had made about Mr D, but admitted she lied about being slapped by the mother.[34]

    [34] Exhibit ICL1, page 69

22. The police concluded it was “unlikely that these assaults could have occurred” and so no action was taken. It is clear from the police records that they even suspected the eldest child might have been influenced in some way by the father or paternal grandmother to make spurious allegations.[35] The police formally cautioned the father and paternal grandmother for making false reports.[36]

    [35] Exhibit ICL1, page 70

    [36] Exhibit ICL1, page 172; Family Report, para 54

23. Significantly, when the eldest child had the opportunity to inform the Family Consultant why she did not like being left alone with Mr D, she eschewed the chance to repeat her allegations of his sexual abuse. Instead, she said he had never intentionally hurt her. Her expressed reticence to be alone with Mr D is more likely attributable to some fear of him which is engendered by her knowledge that both the father and paternal grandmother honestly believe he poses a sexual and physical danger to her.[37] She has taken on and adopted as her own the anxiety of the father and paternal grandmother.

    [37] Family Report, paras 88, 90 and 106

24. The child’s mendacity about the mother’s physical abuse when reporting her allegations of Mr D’s sexual abuse to the police necessarily weakens the evidence because, if she lied about an important aspect of the allegations, her reliability is undermined. The evidence is also weakened by the unexplained material inconsistencies between the content of the paternal grandmother’s report to the counsellor, the counsellor’s report to the child protection hotline, and the child’s own allegations to the police.

25. Considerable weight must also be reposed in the evidence given by Mr D. He voluntarily gave a plausible and corroborated account to the police when the allegations were first raised, he denied the allegations to the Family Consultant,[38] he gave sworn evidence at the trial denying the allegations,[39] and he credibly adhered to his denials under cross-examination. His demeanour in cross-examination when asked about the allegations was very convincing. He was a relatively unsophisticated witness who did not appear capable of maintaining a wicked lie under the pressure of direct questions in a formal setting.

    [38] Family Report, paras 64, 67

    [39] Mr D’ affidavit, paras 8–9, 26–27

26. Then there is the children’s conduct to consider. When introduced to Mr D under the observation of the Family Consultant, the children, but particularly the youngest child, engaged with him effusively.[40] The Family Consultant considered the children have “very good” relationships with him.[41] While that does not exclude the possibility Mr D sexually abused one or both of them, it seems unlikely. It is even more unlikely that he made threats to kill them.

    [40] Family Report, paras 96, 106, 111, 113 and 117–122

    [41] Family Report, para 131

27. The mother, and it seems also the police,[42] believe the father and paternal grandmother fabricated the allegations against Mr D,[43] but I do not accept that is so. I accept the eldest child volunteered the allegations, but the father and paternal grandmother simply accepted the literal truth of everything she said about the mother and Mr D without any reality-check. During the trial, they were resistant to any suggestion about the incredulity of the eldest child’s allegations of her being threatened with violent death by Mr D and her actually being throttled by him in the mother’s presence, which the mother did nothing to stop, while she was engaged in a telephone conversation with the father or paternal grandmother at Easter 2019. They were also willing to conveniently overlook the material inconsistencies in the eldest child’s allegations and her admitted lie to the police about the mother slapping her face. When the father and paternal grandmother were confronted with critical statements undoubtedly made about them by the children,[44] which they maintained were false, they could not sensibly explain why they disregarded lies told by the children about them, but seized upon and asserted the truth of allegations made by the children against the mother and Mr D. They cannot plausibly selectively rely upon only the children’s statements which suit the father’s case.

    [42] Exhibit ICL1, pages 70, 172

    [43] Family Report, paras 10, 26, 33, 37 and 43

    [44] Family Report, paras 102–104

28. The father and paternal grandmother were motivated to believe Mr D posed a risk of harm to the children because an untested opinion to that effect was expressed by the first Family Consultant in 2016 during the first proceedings, which opinion was apparently based, in part, upon an allegation made in about 2000 of Mr D’s sexual conduct with a teenage cousin several years younger than him. When asked about that in cross-examination, Mr D admitted the allegation was made, but credibly denied its veracity, and confirmed the complaint was not substantiated by the police. He was not charged with any offence. While the father and paternal grandmother may consider the bare allegation to be probative, it is not. The evidence about it was threadbare. Nonetheless, knowledge of that past allegation and of the first Family Consultant’s opinion, explains why the father and paternal grandmother both now tenaciously hold honest views that Mr D is a sexual predator. However, any objective analysis of the quality of the evidence adduced to vindicate the father’s case is not influenced by the tenacity of their beliefs.

29. The most likely explanation for the eldest child making allegations against Mr D in late 2019 was afforded by the Family Consultant in cross-examination, whose opinion evidence I accept. She said the father and the paternal grandmother genuinely believe Mr D is a danger, of which beliefs the eldest child is almost certainly aware, and she is inclined to make allegations against Mr D because she perceives that is what the father and paternal grandmother want to hear. Her allegations receive repeated affirmation from the father and paternal grandmother, because they assure her she is safe with them and they tell her she is able to report her allegations to her counsellor, to whom she is then taken for that purpose. The father admitted he has telephoned the eldest child when she was with the mother to ask if she was safe and the express purpose of the children’s counselling sessions was so they could “talk about” Mr D. He was impelled to admit that placed pressure upon the children. The Family Consultant said it is “highly likely” the presence of the father or paternal grandmother with the eldest child at the counselling sessions influences her to make the allegations, even though such influence on their part might be entirely inadvertent. The failure of the father and paternal grandmother to challenge the eldest child about the accuracy of any allegation, no matter how bizarre, might only serve to convince her that anything she says will be impulsively accepted as being true.

30. There can be no doubt the children interact warmly with the mother and Mr D, but when they return to the father and paternal grandmother after visits to the mother their behaviour can be incorrigible. The father and paternal grandmother suspect such behaviour proves the children are unsettled, which they impute is due to some form of their mistreatment while in the mother’s care, but I reject their suspicions as groundless and instead accept the Family Consultant’s opinion evidence. She said the antipathy between the two households places conflicting loyalty demands upon the children, causing them to act out. They enjoy their time with the mother but feel as though, on their return to the father and paternal grandmother, they are expected to act as if they did not enjoy it and must therefore falsely suppress their joy. They are not given emotional freedom by the father and paternal grandmother to enjoy the experience of loving relationships with the mother while Mr D remains part of her life.

31. The evidence fails to establish that Mr D poses any a risk of harm to the children by reason of their subjection to sexual abuse.

    Emotional or psychological harm

32. At the commencement of the trial, the mother’s solicitor said she sought a finding that the children were at risk of emotional or psychological harm if they continue to live with the father, which was the solitary reason the mother sought to reverse the children’s residence. It was accepted that the failure to substantiate such a finding would effectively scuttle the mother’s application for the children to live with her.

33. It is unnecessary to complicate these reasons with any discussion about whether the psychological harm contemplated by the mother was “serious psychological harm” so as to constitute “abuse” (as defined in s 4(1)) and therefore be worthy of consideration as a primary consideration under s 60CC(2)(b) of the Act instead of only as an additional consideration under s 60CC(3) of the Act. The distinction was never mentioned.

34. The mother did not seek to differentiate the meaning of “emotional” and “psychological” harm and simply contended the genesis of such harm was the tendency of the father and paternal grandmother to deliberately conduct themselves in ways which caused impairment to the children’s relationships with her. By implication (because it was not expressed this way), the argument was that the children would suffer emotional or psychological harm if their relationships with the mother suffer from any form of deterioration.

35. There were several problems with the mother’s argument. First, it lacked coherence because the mother proposed the children should still spend substantial amounts of time with the father. The logical extension of her argument, if accepted, would be the necessity for rather drastic curtailment of the children’s interaction with the father because, if he was acting as alleged, the harm to the children would be as readily caused by them spending substantial time with him as it would by them living with him. No attempt was made to rationalise that paradox.

1. Secondly, even when the mother’s solicitor was twice reminded of the need to do so as an incident of procedural fairness, she did not challenge either the father or the paternal grandmother in cross-examination with the proposition they were deliberately acting in ways which was liable to impair the children’s relationships with the mother, unfairly denying them the chance to respond.

2. Thirdly, a body of unchallenged evidence did not support the mother’s argument. Rather, it showed the father trying to retain the children’s relationships with the mother, subject to her keeping them away from Mr D. He occasionally agreed with the mother to vary the times spent by the children with her and the venues for the children’s exchange,[45] he invited the mother to the children’s birthday parties,[46] he invited the mother to attend numerous sporting and extra-curricular events,[47] he invited the mother to attend at least one of the children’s medical appointments,[48] and he ensured the children observed Mother’s Day with the mother even when not in her company.[49] Although the children have now lived with the father for over five years, they still retain loving relationships with the mother. That could hardly be so if the father was working assiduously to undermine the children’s relationships with her. The Family Consultant opined the father was not acting to deliberately impair the children’s relationships with the mother, which opinion evidence I accept.

   [45] Father’s affidavit, paras 73, 75–76 and 97

   [46] Father’s affidavit, paras 74, 7 and 83

   [47] Father’s affidavit, paras 61, 80 and 82

   [48] Father’s affidavit, para 86

   [49] Father’s affidavit, para 88

3. The evidence is too weak to prove the children are at material risk of emotional or physical harm if they continue to live with the father.  

   CHILDREN’S BEST INTERESTS – ADDITIONAL CONSIDERATIONS

4. The parties and the ICL focussed their attention almost exclusively on the alleged risks of harm posed to the children, so the additional considerations prescribed by s 60CC(3) of the Act received little attention. As it transpired, those which were material were the children’s views (s 60CC(3)(a)), the quality of the children’s relationships with the paternal grandmother and Mr D (s 60CC(3)(b)(ii)), the likely effect upon the children of any structural change to their existing residential arrangements (s 60CC(3)(d)), and the father’s capacity to provide for the children’s emotional need for the unfettered enjoyment of their relationships with the mother and Mr D (s 60CC(3)(f)).

5. The evidence disclosed the children have consistently expressed views to remain living with the father, but to spend more time with the mother and Mr D. The children said so to the Family Consultant in March 2020,[50] the eldest child said so to her counsellor in May 2020,[51] and the mother said in cross-examination she accepted that was true. I accept the Family Consultant’s opinion that the children’s views should be given some weight,[52] but in view of their ages it is not a determinative consideration.

   [50] Family Report, paras 90–91, 100–101 and 129

   [51] Exhibit ICL1, page 126

   [52] Family Report, para 129

6. The children enjoy “close and loving” relationships with the paternal grandmother[53] and warm relationships with Mr D.[54] Although some other members of the extended maternal family live in reasonable proximity to the mother,[55] there was no evidence about the level of their involvement in the children’s lives.

   [53] Family Report, paras 105, 127 and 135

   [54] Family Report, paras 117-122

   [55] Family Report, para 36

7. The children have now lived with the father and paternal grandmother for the past five years. They have lived in the same house and have attended the same school. They both like school and their academic performance is sound. They play sport and participate in other extra-curricular activities, which they like. The children are disinclined to have those settled arrangements disrupted. The mother agreed in cross-examination that if the children live with her instead she will “probably” enrol them at a different school closer to her home and change the clubs and venues where they play sport and dance. Without good reason, the children’s settled residence, school, sports, and friendship groups should not be disrupted because it would cause them unnecessary disappointment, if not outright anxiety. They already have enough to contend with by managing the conflicting loyalty demands placed upon them in two different households.

8. For reasons already explained, the antipathy the father and the paternal grandmother both feel towards Mr D causes the children undue anxiety about how they will manage to maintain their loving relationships with the mother and their warm relationships with Mr D, which in turn compromises their ability to do so. Regrettably, the father and the paternal grandmother both seem blind to that cause and effect, despite attempts being made during their respective cross-examinations to enlighten them. They both staunchly adhered to their belief the children have been sexually and physically abused by Mr D, even though their beliefs seem mistaken on the available evidence. That predicament poses this important question: how can the father and the paternal grandmother ensure the children regularly spend time with the mother (and Mr D) in accordance with orders to that effect if they still genuinely believe the children are at risk of being sexually and physically abused every time they visit?

9. The father and the paternal grandmother were both asked that very question during cross-examination. Both said they would steadfastly comply with orders made by the Court, even if the orders did not reflect their beliefs about the risks of harm posed to the children by Mr D. Given their respective answers, the next important question is: can they be believed? Not without some hesitation, I see no logical reason to reject their evidence out of hand. They both appeared to be honest witnesses and each gave the impression they respected the authority of the Court’s decision, settling the dispute between the parties.

10. However, for complete clarity, if the father and paternal grandmother want the children to enjoy sound psychological health during their childhood, more is required from them than mere compliance with Court orders. They need to convey to the children, by their words and deeds, their encouragement to visit the mother and Mr D and to thoroughly enjoy the time spent with them. The Family Consultant, whose evidence I accept, said in cross-examination that it would be “damaging” for the children if the father and paternal grandmother cannot shift their adverse views about Mr D and, if they want to protect the children from “psychological harm”, they need to abstain from quizzing the children about their experiences in the mother’s household upon their return from visits with her.

11. The father and the paternal grandmother probably have the ability to indefinitely comply with Court orders and to alter their behaviour so as not to forecast to the children their continuing concerns about Mr D. If that finding proves to be wrong, a third round of litigation between the parties will likely ensue and then the reversal of the children’s residence will be a much stronger option.

12. Until recently, the mother and Mr D lived in Sydney but they have now moved back to live in C Region of NSW. The father lives with the paternal grandmother in another township in C Region. Their homes are separated by a drive of about 30 minutes duration. There is no practicable difficulty or expense involved in exchanging the children periodically, though an “equal time” regime would eventually prove difficult because of the children’s necessary school attendance close to one home.

13. The mother’s allegation that the father is incapable of caring for the children without the paternal grandmother’s help because of his cognitive incapacity was unsustainable and was not pursued. Similarly, allegations of misuse of alcohol in both households were straws in the wind.

    CONCLUSIONS AND ORDERS

14. The parties and the ICL mutually submitted for the parties’ allocation with equal shared parental responsibility for the children. It was not submitted that the presumption of such an outcome was inapplicable or rebutted (s 61DA). An order to that effect was also recommended by the Family Consultant.[56]

    [56] Family Report, paras 80, 83, 126, 138–139

15. An order that the parties, as parents of the children, have equal shared parental responsibility engages s 65DAA of the Act. Neither party nor the ICL contended the children should live with the parties for equal time (s 65DAA(1)). The distance between their homes makes such an arrangement impracticable in the long-term. The children must primarily live with one party.

16. The children should continue to live with the father. In summary, the considerations which militate in favour of that outcome are:

    (a)The children are not at such risk of emotional or psychological harm living with the father (and the paternal grandmother) that they require protection from the risk by living elsewhere;

    (b)The reversal of the children’s residence is unlikely to better quell the prospect of future allegations being made against Mr D because, with the children still spending substantial amounts of time in the care of the father and paternal grandmother, they will have just as much reason to suspect and interrogate the children about his potential abuse of them while living in the mother’s home;

    (c)All aspects of the children’s physical and intellectual needs are met in the father’s household;

    (d)The children’s residence with the father is stable and secure; and

    (e)The children wish to remain living primarily with the father.

17. The mother failed to demonstrate that the need to preserve the children’s emotional or psychological health presently demands that they instead live with her.

18. It was uniformly considered the children should spend substantial and significant time with the mother (s 65DAA(2)). The ICL suggested the regime should amount to five consecutive nights each fortnight during school terms, one-half of school holidays, and on other special occasions. Both parties expressly adopted that formulation. Orders are made to that effect. The orders do not precisely replicate the ICL’s proposal because the imposed regime should be simple and clear. No evidence was adduced and no submission made to vindicate the various intricate proposals concerning an abundance of special occasions. Such intricacy is best dispensed with.

19. The father proposed an order be made restraining the children from being left alone with Mr D.[57] The application for an order in those terms – indeed any injunction – was opposed by both the mother and the ICL. The father’s application is rejected. No such order will be made. On the evidence, Mr D poses no tangible risk of harm to the children, in which case there is no reason for any form of restriction upon the children’s interaction with him.

    [57] Exhibit F3, Order 26

20. The father submitted the purpose of the proposed order was twofold: to protect the children and to abate the anxiety still felt by him and the paternal grandmother about Mr D. Neither reason is persuasive. If the evidence fails to demonstrate any risk of harm from which the children need protection, as is found, then there is no need for the injunction to protect them. If the father and paternal grandmother want the reassurance of the injunction to abate their own anxiety then its imposition seems destined to enhance the prospect of their interrogation of the children each time they return from the mother to ascertain whether she complied with the injunction. Such psychological pressure upon the children must be avoided. The imposition of the injunction is also liable to suggest to the children that Mr D remains a danger to them, which false belief should not be encouraged.

21. The parties agreed about the venues for the children’s exchange.

22. During oral submissions, the ICL made an oral application for an order requiring the father to partake in a post-separation parenting program, the idea being that it might help him adjust to the idea that the children should be encouraged to enjoy spending time with the mother, even with Mr D present. The proposal was not expressly opposed by the father. An order will require both parties to participate in such a program, which the ICL must ratify. It would be a very good idea if the paternal grandmother also participated in such a program. She is not a party to the proceedings so the order cannot compel her to do so, but her voluntary participation would show the mother she is serious about improving their relationship.

23. The father pressed for orders to regulate his telephone communication with the children while they are in the mother’s care,[58] but his application is rejected. The father admitted he had sometimes called the children while they were visiting the mother, sometimes enquiring after their safety. The mother alleged the father had called much more frequently than he admitted and his interference had been very disturbing. No factual finding has been made to settle that dispute, as it is not needed. There is no reason for the father to telephone the children when they are with the mother, as he admitted in cross-examination. The same applies for the mother when the children are living with the father. The children will be exchanged between them frequently enough to make telephone communication unnecessary. No orders actually preclude the children’s telephone communication with each parent – the orders simply do not create an enforceable regime for it to occur.

    [58] Exhibit F3, Orders 13–14

24. In accordance with the ICL’s application, an order is made restraining the parties from allowing the children to receive any further counselling from any counsellor associated with the practice known as “C Psychology”, to which practice the children have been intermittently taken for counselling over the last five years. The counsellors at that practice have been inculcated with a family history which accords entirely with the perceptions of the father and the paternal grandmother. The mother has not been involved. The information furnished by the father and the paternal grandmother to those counsellors is not borne out by the evidence adduced in these proceedings. The children should not be counselled on the basis of beliefs or assumptions founded upon incorrect factual information. The children are at risk of being mistakenly convinced they were abused when they were most probably not.

25. The father abandoned his application for orders regulating international travel.[59] The parties have equal shared parental responsibility for the children. They should use it as the Act envisages (s 65DAC).

    [59] Exhibit F3, Orders 19–22

26. The ICL abandoned her application for a particular injunction, which she conceded was drafted in aspirational and unenforceable terms.[60]

    [60] Exhibit ICL2, Order 13

27. The remaining orders sought by the parties and the ICL find expression in the orders now made, albeit in slightly different terms.

28. Since the children have been exposed to so much adult animosity, an order requires the parties to produce them to the ICL for an independent explanation of the orders and, if the ICL thinks it appropriate, the reasons which support the orders.

29. Having regard to the repeated involvement of the police and child welfare authority to investigate claims of abuse within the family, an order is made enabling the suite of orders, these reasons for judgment, and the Family Report to be furnished to the authorities if another report of abuse is made in future. Such material will provide the authorities with an objective analysis of family history from which to begin their fresh investigations.

30. Costs are reserved for 28 days, but any and all other outstanding applications are dismissed.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:       

Dated:       1 April 2021