WALSH & CULLEN - [2016] FamCA 872

FAMILY COURT OF AUSTRALIA

WALSH & CULLEN

[2016] FamCA 872

FAMILY LAW – CHILDREN – Risks of Harm – Where the mother believes the father poses a risk of harm to the children by sexual abuse – Where the evidence does not support a finding of such a risk – Where the children are not at risk of harm by subjection to physical abuse by the father – Where the children are not at risk of harm through their neglect – Where the children are not at risk of harm through exposure to family violence – Ordered that the children spend time with the father – Ordered that the time the children spend with the father increases gradually, culminating in alternating weekends, half of school holidays, and other special occasions

FAMILY LAW – PARENTING – Best Interests – Where the children enjoy meaningful relationships with both parents – Where the parents agree the children should continue living with the mother – Order that the children live with the mother – Where the alleged risks of harm posed by the father to the children not proven – Orders that the children spend time with the father

FAMILY LAW – PARENTING – Relocation – Where the mother seeks to relocate her residence with the children – Where relocation would curtail the time the children can spend with the father – Where the mother seeks to relocate due to her apprehension of harassment by the paternal family – Where the welfare of the children would not be adversely affected by their proposed relocation – Where the mother submits to an order restraining her relocation to a wider area than that proposed by the father – Ordered that the mother’s relocation is restricted to the area she proposed

FAMILY LAW – EVIDENCE – Interaction of the Family Law Act and the Evidence Act – Where an order is made for provisions of the Evidence Act to apply to the evidence directed to one issue in the proceedings – Where provisions of the Evidence Act can be applied to selected issues in child-related proceedings

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss, 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE, 69ZT

Amador v Amador (2009) 43 Fam LR
AMS v AIF (1999) 199 CLR 160
Johnson v Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Maluka v Maluka (2011) FLC 93-464
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda [2014] FamCAFC 173

APPLICANT:

Mr Walsh

RESPONDENT:

Ms Cullen

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

FILE NUMBER:

NCC

279

2016

DATE DELIVERED:

13 October 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

26, 27, 28 & 29 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carty

SOLICITOR FOR THE APPLICANT:

McNeilly Lawyers

COUNSEL FOR THE RESPONDENT:

Ms O’Rourke, solicitor advocate

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW, E Town

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sharrock

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

Orders

All former orders relating to the following children are discharged:
(a) B, born … 2013; and
(b) C, born … 2015.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the mother.
The mother is restrained from establishing the children’s residence at a place:
(a) Further north than the local council area of D Town, NSW;
(b) Further south than the local council area of E Town, NSW; or
(c)More than 25 kilometres to the west of the route of the Pacific Highway between D Town and E Town.
The parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
(a)Up to and including Saturday 31 December 2016:
(i)From 10.00 am until 2.00 pm each Saturday (including Saturday 24 December 2016).
(b)From 1 January 2017 up to and including Saturday 1 July 2017:
(i)From 9.00 am until 5.00 pm each Saturday.
(c)From 2 July 2017 up to and including Sunday 28 January 2018:
(i)From 9.00 am until 5.00 pm each Saturday (including Saturday 23 December 2016); and
(ii)From 9.00 am until 12.00 noon each Sunday (including Sunday 24 December 2016).
(d)From Monday 29 January 2018 thereafter:
(i)During NSW school terms, each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each term;
(ii)For the first half of the Autumn, Winter, and Spring NSW school holidays; and
(iii)During the Summer NSW school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
For the purposes of implementation of Order 5(d) hereof, the NSW school holidays are deemed to commence at 6.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day before the new school term commences, and the mid-point is noon on the day halfway between those first and last days.
From 29 January 2018, unless otherwise agreed, Orders 3 and 5(d) hereof 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 Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)Between 6.00 pm Saturday and 6.00 pm Sunday on the Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
For the purposes of implementation of Orders 3, 5, and 7 hereof, unless otherwise agreed, the mother or her nominee shall deliver the children to the father or his nominee at the McDonalds Restaurant at F Town, NSW at the commencement of the children’s visits with the father and the father or his nominee shall return the children to the mother or her nominee at the same place at the end of the visits.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father at 6.00 pm each Wednesday when the children are living with the mother pursuant to Order 3, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;
(b)The mother at 6.00 pm each Wednesday when the children are spending time with the father pursuant to Order 5(d), and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and
(c)The parent with whom they are not then staying, at 6.00 pm on the children’s birthdays, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
The mother is restrained from causing or permitting the children to be in the physical presence of the maternal step-grandfather, Mr M, unless personally supervised by her.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
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.
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 the condition and treatment of the children.
The mother shall keep the father informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
The mother shall authorise and request the principal of any pre-school or school attended by the children to provide to the father, at the father’s expense, copies of all pre-school and school reports and photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.
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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.

Notations

(A)The children are habitually resident in Australia, in the State of NSW.

(B)The father has “rights of custody” in respect of the children within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) by virtue of these orders.
(C)The mother is able to remove the children from their State of habitual residence to overseas destinations for the purposes of holidays.
(D)Retention of the children away from Australia without the permission of this Court or the consent of the father in writing will constitute a wrongful retention of the children within the meaning of the 1980 Convention.
(E)These orders constitute “measures of protection directed to the protection of the person of the children” within the meaning of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 279 of 2016

Mr Walsh

Applicant

And

Ms Cullen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern the parenting orders that should be made for the two young children of the applicant father and respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The dispute between the parties arose out of the father’s alleged act of indecency with another child, which the father refuted. Once the proceedings were commenced, the parties’ evidence against one another broadened to encompass other recriminations about their conduct and parenting capacity, but they proved to be merely distractions. The pivotal issue remained the single allegation of sexual misconduct.
The evidence did not support any finding that either party constituted an unacceptable risk of harm to the children and so, given their agreement that the children should continue to live with the mother, there was no reason why the children should not spend time with the father on a gradually expanding basis commensurate with their maturity. Due to the parties’ lack of cooperation, it was improbable they could properly share parental responsibility for the children and so the mother should have that responsibility as the children’s residential carer.

Background

The parties were not married. They began their relationship in 2009 and separated in January 2016, when the mother left the family home with the parties’ two children and did not return.
The children were born in 2013 and 2015 and are now aged three and one years of age respectively.
The mother has an older child from a previous relationship who is now eight years of age (“G”). The mother decided to sever the parties’ relationship when she formed the view that the father acted indecently with G on the evening of 28 December 2015. Based on what she was told by G, she believed the father intentionally exposed his genitals to G and incited her to expose her genitals to him. The matter was raised immediately and the father denied any misconduct. He alleged he chastised G for exposing her genitals to him after she entered the room and saw his testicles, which were inadvertently visible under his boxer shorts while he reclined on a lounge.
About a week later, the mother and children left the family home for a pre-planned holiday with the maternal grandmother and the father began these proceedings seeking orders in respect of the children once it became clear to him the mother was not intending to return with them.
The proceedings were commenced before the Local Court of NSW at F Town. That court made interim orders in January and February 2016 before transferring the proceedings to the Federal Circuit Court. The interim orders provided for the children to live with the mother in a designated area on the mid north coast of NSW, where the family lived whilst the parties’ relationship was intact. By reason of the mother’s allegation about the act of indecency between the father and G, the orders also provided for the children to spend only two hours each week with the father under professional supervision at a contact centre.
Shortly after transfer of the proceedings to the Federal Circuit Court, they were then transferred to this Court, though the interim orders made by the State court remained in place until final trial in September 2016.

Proposals

During final submissions, the father abandoned the orders set out within his Amended Initiating Application filed on 24 June 2016 and instead endorsed a modified version of the orders promulgated by the Independent Children’s Lawyer. Essentially, he wanted the parties to have equal shared parental responsibility for the children, for the children to live with the mother within a designated area on the mid north coast of NSW, and for the children to spend substantial amounts of unsupervised time in his care.
The mother abandoned the proposal set out within her Response filed on 27 January 2016. She instead sought the orders set out within the minute of orders she tendered at the commencement of the final trial.[1] She wanted sole parental responsibility for the children and for the children to live with her, without geographical restriction, though that changed during final submissions. She was willing to submit to an order that confined her residence to a relatively wide area on the north coast of NSW, but (inferentially) only if it was found the father posed no appreciable risk of harm to the children. Preferably, she wanted the father eliminated from the children’s lives, but alternatively, for the children to only spend supervised time with the father at a contact centre on four occasions each year.
[1] Exhibit M1
At the commencement of the final trial, the Independent Children’s Lawyer foreshadowed her preliminary support for orders in the nature of those proposed by the father and that position remained unchanged. At the commencement of final submissions, the Independent Children’s Lawyer tendered a minute of the orders she proposed.[2] Fundamentally, she proposed the allocation to the parties of equal shared parental responsibility, for the children to live with the mother, and for the children to spend unsupervised time with the father on an expanding basis. It was proposed the mother be restrained from establishing the children’s residence more than 60 kilometres away from E Town, NSW.
[2] Exhibit ICL2

Evidence

The father relied upon:
(a)His affidavit filed on 19 August 2016;
(b)The affidavit of the paternal grandmother filed on 19 August 2016;
(c)The affidavit of Mr H filed on 19 August 2016;
(d)The affidavit of Ms I filed on 19 August 2016; and
(e)The affidavit of Mr J filed on 19 August 2016.
The mother relied upon:
(a)Her affidavit filed on 19 August 2016;
(b)Her affidavit filed in Court on 27 September 2016; and
(c)The affidavit of Ms K filed on 19 August 2016.
The parties and Independent Children’s Lawyer also relied upon:
(a)The Magellan Report, dated 17 March 2016, prepared for the Court by the NSW Department of Family and Community Services (“the Department”); and
(b)The Family Report, dated 29 April 2016, prepared by the Family Consultant.
An evidentiary issue arose at the trial. To explain its resolution, some reference to authority is necessary.
In M & M (1988) 166 CLR 69 at 76-77, the High Court said:
…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 consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. 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.
In considering an allegation of sexual abuse, 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, with due regard for the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362…
…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….
(emphasis added)
Despite the High Court’s admonition for caution, the mother confirmed at the commencement of the final trial that she sought a positive factual finding the father acted indecently with G on 28 December 2015. Section 69ZT(3) of the Act was then invoked and an order made for the provisions of Chapter 3 of the Evidence Act 1995 (Cth) to apply to the evidence adduced in respect of the incident that occurred between the father and G on that date. The provisions of the Evidence Act which are ordinarily excluded from operation in child-related proceedings by s 69ZT(1) of the Act may be applied selectively to only one or some of the contentious issues. It is not obligatory to apply the Evidence Act to all of the evidence (see Maluka v Maluka (2011) FLC 93-464 at [121]-[123]).
The allegation of misconduct made by the mother against the father was undoubtedly serious, as it could capably amount to an indictable criminal offence. The circumstances were exceptional because such positive findings should or need not ordinarily be made (s 69ZT(3)(a)) and the mother considered the finding to be so important that it would impel a conclusion to eliminate the father from the children’s lives (s 69ZT(3)(b)). The rules of evidence will generally be imported in such circumstances and a “clear determination” to that effect required (see Amador v Amador (2009) 43 Fam LR 268 at [93]; Johnson v Page (2007) FLC 93-344 at [83]).

After that ruling, the parties each made objections to parts of the affidavit evidence upon which the other relied; some successfully and some not so.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).
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).
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).
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.
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)

There was no controversy over the children’s enjoyment of meaningful relationships with both parents, or about the benefit they derive from such relationships.
It was common ground the children would remain living with the mother, so the father necessarily accepted the strength and benefit of the children’s relationships with her.
Although the mother effectively sought elimination of the father from the children’s lives, that was not because of any impairment of their relationships with him. On the contrary, they also have strong, loving relationships with him. The Family Consultant confirmed the contact centre reports revealed the children have “warm, loving and positive” relationships with the father and he is “child focussed” with them.[3] The mother’s desire to curtail their interaction with the father was borne of the risk of harm she alleged he posed to them.
[3] Family Report, para 10
As the Family Consultant said in cross-examination, save for some worry about the continuing conflict between the parties, there was no reason to deny the children substantial amounts of time with the father if he was found to pose no appreciable risk of harm to them. It was uncontentious there would be deleterious consequences for the children if denied their current meaningful filial relationships with the father, so those relationships should only be impinged if it is necessary for their protection from harm.

Section 60CC(2)(b)

Section 60CC(2)(b) of the Act requires the Court to consider, as a primary consideration, the need for the children’s protection from any physical or psychological harm they may suffer from either subjection or exposure to abuse, family violence, or neglect.
The asserted need to protect the children against the risk of harm caused by their subjection to sexual abuse by the father loomed as the most profound issue in the proceedings, but the parties adduced evidence of other risks of harm that still need to be addressed under the rubric of s 60CC(2)(b) and it is better to deal with the separate issues individually.

Risk of harm from sexual abuse

In final submissions, the mother made a very significant concession which altered her case. She conceded the evidence was not strong enough to support a positive factual finding that the father acted indecently with G on the evening of 28 December 2015, even though she subjectively maintained her belief he actually did so.
Although the mother still maintains her belief in G’s version of events, she acknowledged in cross-examination that her belief is based entirely upon G’s reports, that she has already furnished the police with all relevant information in her possession to enable their proper investigation of the incident, and the police have told her there is insufficient evidence to warrant the father’s prosecution for any offence.
The Department seemingly reached the same conclusion as the police, but as the Family Consultant correctly noted, the Department’s conclusion is “somewhat unclear”.[4] The Department formally notified in its Magellan Report that there was “insufficient evidence to determine that [the father’s] actions were intentional or of a sexual nature”.[5] Other records of the Department, however, reveal purported substantiation of G’s sexual exploitation, but simultaneous acknowledgement there was insufficient evidence to suggest the father deliberately exposed his genitals to her.[6] That contradiction was not satisfactorily explained and remains an oxymoronic mystery. Regardless, the Department has taken no action which implies its substantiation of the mother’s complaint against the father.
[4] Family Report, para 89
[5] Magellan Report, page 2; Family Report, para 90
[6] Family Report, paras 91-93; Exhibits F4, M4
Despite the mother’s concession about the lack of probative weight attributable to the evidence relating to the incident between the father and G, she maintained the evidence was still sufficiently strong to enable a finding that he poses an unacceptable risk of harm to the children by reason of his potential sexual abuse of them, so it remains necessary to analyse the evidence carefully. The unwillingness of the police or child welfare authorities to act on information about alleged risks of harm to children should not deter the Court from properly reviewing the available evidence.
G undoubtedly saw the father’s testicles on 28 December 2015. The real factual issue was whether it happened inadvertently and innocently, as the father maintained, or deliberately and indecently, as G reported. There were no witnesses to corroborate either, so considerable importance attaches to the veracity of statements made about the event afterwards by both the father and G to the mother, the police, and the Family Consultant.
The father maintained the exposure of his testicles to G was inadvertent, he did not incite G to expose herself, she acted impishly by voluntarily exposing herself to him, and when she realised she was at risk of punishment for her brazen behaviour she concocted an admixture of fact and fiction to exculpate herself and deflect blame to him. The father recounted his version of the event consistently in a police interview conducted in February 2016, in his conversation with the Family Consultant in April 2016, in his trial affidavit sworn in August 2016,[7] and during his cross-examination at trial in September 2016.
[7] Father’s affidavit, paras 32-33
When the father realised the mother had decided to separate from him, that there would be a dispute over the children’s parenting arrangements, and the incident with G on 28 December 2015 was being formally investigated, he took steps to initiate an interview with police. He was not obliged to do so because he was then the suspect in an investigation into the commission of an alleged criminal offence, described to him by police as an “aggravated act of indecency”. He could have preserved his privilege against self-incrimination and declined any interview with the police. Instead, he felt confident enough in his innocence to submit to the formal recorded interview on 25 February 2016.
During the interview, which was played in open court, the father described his version of the event in the following terms.[8] He was watching television alone in the lounge room during the evening. He was wearing loose fitting boxer shorts and had his right leg up on the lounge and his left foot on the floor. His head was turned left looking towards the television. G had already been put to bed and told to stay in bed several times by the mother but she disobediently appeared at and stood by the door to the lounge room, situated to his right. He was aware of her presence because he could hear her giggling and she was at the periphery of his vision, but he ignored her because of her disobedience. After some little while, G walked into the room and stood directly in front of him so he could no longer ignore her. She then used her left hand to pull the crotch of her shorts to one side, thereby briefly exposing her bare genitals to him. At that point, conversation to the following effect ensued:
G: You’ve seen mine and I’ve seen yours
Father: Don’t be so rude
G: I can see your hairy balls
Father: I’m going to tell your mother. You won’t be going anywhere tomorrow. Go back to bed.
[8] Exhibit F1
When G told the father she could see his “hairy balls”, he looked down and saw his testicles were exposed on the right hand side of his boxer shorts due to the position of his right leg up on the lounge. When he realised, he put his right leg down off the lounge. After he told her to “go back to bed” she disobediently collapsed to the floor. He then carried her back to her bedroom, put her to bed, and returned to the lounge room.
Several minutes later, the father said he heard G speaking with the mother in a different room, though he could not hear the content of their conversation. He assumed G was “getting in before [him]” to explain the situation to the mother because she knew, from what he had already said to her, she was in trouble and was at risk of being forbidden from attending the planned family outing the next day as punishment.
It is uncontroversial G reported to the mother “Mum he’s just showed me his balls”, about which the mother was understandably alarmed, because the statement implied the father deliberately exposed his testicles to G.[9] She then immediately confronted the father over what had just occurred and the father spontaneously denied G’s allegation. The father asserted he then went on and told the mother what had actually occurred, explaining the exposure of his testicles was accidental. The mother conceded in her affidavit the father gave her an innocent explanation that his “balls [were] hanging out of [his] shorts”,[10] but in cross-examination she curiously denied he gave such an exculpatory explanation at the time. The mother was also plainly aware that G displayed her genitals to the father that night, even though she denied in cross-examination being told so by the father. The mother deposed G told her when they were alone in the bedroom “he showed me his balls, then he said show me yours…he wouldn’t take me out the next day so I had to”.[11]
[9] Mother’s first affidavit, para 50
[10] Mother’s first affidavit, para 51
[11] Mother’s first affidavit, para 51
As can be seen, there was some compatibility between the father’s version and the composite version related by G and the mother, but some important discrepancies regarding who incited the incident and the conversation that occurred afterwards.
Both parties gave reasonably credible oral evidence about their recollection of whether or not the father gave his full account of the incident to the mother that night. The discrepancy in their evidence on that point did not necessarily mean one was lying. It was weeks before either of them had occasion to formally record their recollection of the event and neither had contemporaneous notes from which to refresh their memory, so one of them could have been innocently mistaken. If the mistake was the father’s, it did not materially diminish his credit because the mother conceded he immediately refuted the suggestion he wilfully exposed his genitals to G and, even on her version, neither she nor G made an allegation in the father’s presence, for him to admit or deny, about his incitement of G to expose her genitals to him.
After he recounted to the police his version of the event they asked him further questions that required him to elaborate details, which he seamlessly did as if resorting to a recollection rather than a rehearsed story. He was not stumped for an answer and he did not seek refuge from difficult questions by professing his lack of recollection of peripheral detail.
When the father conferred with the Family Consultant two months later in April 2016, he gave a consistent, though truncated, version.[12] There was no need for him to give the same level of detail to her as to the investigating police. The Family Consultant reported the father told her he had his right leg up on a “table”, but in cross-examination she consulted her notes and admitted her error in the Family Report. The father in fact told her he had his leg up on the “lounge”. He also confirmed with the Family Consultant that he told the mother on the night that G had seen his accidentally exposed testicles and that she had “put on a show” before going back to bed.
[12] Family Report, paras 77-78, 80
The father denied culpability for the incident in his affidavit and he was cross-examined at trial before he heard the recording of his police interview played in open court, so his oral evidence was not refreshed from hearing the recording beforehand. The comprehensive version he gave in oral evidence was consistent with the version he gave during the police interview many months before. During his oral evidence he quietly wept at being disbelieved by the mother. It is highly improbable he had the guile to contrive such a discreet display of genuinely raw emotion.
At the time the Family Consultant compiled the Family Report in April 2016, she considered there might have been some inconsistencies in the father’s versions,[13] which is why she sensibly recommended the parties should procure source documents like the father’s police interview and other police records.[14] Those records were later procured and were, relevantly, tendered as exhibits at trial. The Family Consultant was not privy to the tested evidence, which demonstrated the father’s consistent version of events. She acknowledged in cross-examination that, if the incident with G occurred as the father alleged, there had been no impropriety on his part.
[13] Family Report, paras 80, 103
[14] Family Report, para 96
In the Family Report, the Family Consultant expressed some mild suspicion about the reason for the father’s omission of a detailed account of the incident that occurred on 28 December 2015 in the two affidavits he filed in these proceedings shortly thereafter in January 2016,[15] but the evidence at trial allayed any such suspicion for two good reasons.
[15] Family Report, paras 81-82
First, the mother conceded she left G and the eldest child in the father’s unsupervised care after the incident on 28 December 2015, which she admitted would have led him to believe she trusted him and did not regard the incident as critical. Consequently, when the father deposed to the first of those affidavits, so far as he was aware, the incident with G was not the critical issue it is now. The affidavit was filed before he knew the mother had reported the incident to police.[16]
[16] Father’s affidavit, paras 23-24
Secondly, at the time the father deposed to the second affidavit, he perceived the allegation against him had significantly changed. He then knew the incident with G had taken on greater importance because he had been served with the application made to a State court seeking an apprehended violence order against him in favour of G. In that application it was alleged that, during the incident with G, he stood up and pulled down his pants to expose both his penis and his testicles to G. That allegation was quite different to the one made in his presence on 28 December 2015 and was the first he knew of it. The mother conceded it was natural for the father to simply deny that allegation, which was both new to him and contrary to his version of events anyway.
The Family Consultant agreed that, given the father’s account of the incident, G could have been acting mischievously by exposing herself, but she considered it would have been “unusual” for a child of that age to act that way. It may not be usual, standard or normative behaviour for children of that age, but G is an individual and it is her behaviour rather than usual behaviour which is of interest. The father said she was standing at the doorway of the lounge room for some time while he ignored her. She was giggling for no reason he could then discern, though it is plausible she was giggling at his exposed testicles, of which he was unaware. It is not unrealistic to imagine how a confident child like G might then have responded by momentarily exposing her genitals to the father, reciprocating his exposure to her, as an act of mischief rather than as an act of sexuality. There was other evidence of how she was occasionally inclined to act mischievously to provoke a reaction in adults around her. The father and the paternal uncle both confirmed she has occasionally lifted her dress and “flashed her undies” at family members before.[17]
[17] Father’s affidavit, paras 64-69; Affidavit of Mr J Walsh, paras 56-57
The father’s version of the event was, therefore, plausible and consistent. By comparison, under similar scrutiny, G’s reports were found wanting, even allowing for her relative lack of maturity and sophistication.
The evidence about G’s version of the incident on 28 December 2015 comprised both direct representations made by her to the mother, the police, and the Family Consultant and the mother’s reports to the police and Family Consultant about what she was told by G.
On the night of the incident, G told the mother two things: first, the father “showed [her] his balls”, and second, she showed her genitals to him in response to his request.[18] There are two things to note about her first report of being shown the father’s “balls”: she specifically used the word “balls” to describe what she saw and she did not say how she was shown them.
[18] Mother’s first affidavit, paras 50-51, 57, Annexure E
The mother did not formally report the incident to the authorities until several weeks afterwards, on 14 January 2016, at which time she reported the father deliberately exposed his “genitals” to G.[19] The mother was asked in cross-examination how an allegation of the father’s exposure of his “balls” could transform into an allegation about the exposure of his “genitals”, which caused her to admit she later had several further conversations with G to “clarify” her original disclosure, as she earlier told the Family Consultant.[20] None of those conversations was the subject of any evidence, so it remains unknown what was said between the mother and G about the incident after 28 December 2015 and before the report was made to the police on 14 January 2016. The mother recorded some further conversations with G and gave such recordings to the police,[21] but when the father called for the production of the recordings in Court she did not produce them. Nonetheless, the mother confirmed the police had a copy of the recordings and their content formed part of the police investigation, which was now terminated.
[19] Exhibit F3; Mother’s first affidavit, para 56
[20] Family Report, para 73
[21] Mother’s first affidavit, para 57, Annexure E (paras 6, 8)

G did not explain on the night of the incident how the father’s balls had been revealed to her. The mother and father both imputed, from her statement that the father “showed” his “balls” to her, that he deliberately exposed them in some way or other, but that imputation may not have been correct. G’s assertion of being “shown” the father’s testicles may have merely been a description of how they were on display to her while the father was sitting on the lounge with one leg up. If that were the case, his testicles would still be “shown” to her, though accidentally rather than deliberately. It was quite some time later that an explanation was first offered for how the father’s testicles were deliberately shown to G.
G was formally interviewed by police on 18 January 2016, several days after the mother’s police report. The recorded interview was tendered as an exhibit and played in open court.[22] It was a curious interview in several ways, particularly because of her assertive manner and lack of distress about the topics discussed, but in respect of the incident with the father on 28 December 2015 she significantly reported several different features about it. She alleged:
(a)The father stood up off the lounge and pulled his pants down to expose himself to her;
(b)She saw his “doodle”, which by reference to a body chart shown to her meant his penis;
(c)The father did not ask her to do anything; and
(d)She did not pull her pants down.
[22] Exhibit ICL1
So far as the father was aware, that was the first time it had been alleged he stood up to pull his pants down. But more importantly, it remains an unexplained curiosity why the police were told by the mother and G in January 2016 that the father exposed his “genitals” or “doodle”, when it is known the child told the mother on the night of the incident that he exposed his “balls”. It could hardly be confusion on G’s part because she was familiar with the anatomical difference, which she demonstrated by using words such as “balls” and “doodle”. By the time of her later conversation with the Family Consultant in April 2016, G was describing the father’s exposure of his “private part” during the incident.[23] The transformation of the allegation from exposure of the testicles to exposure of the penis is a significant discrepancy in the evidence because the father described how G could plausibly have seen his testicles by accident. It is much more difficult to imagine how she could also have seen his penis by accident. Confinement of the allegation to exposure of only the father’s testicles on the night of the incident still allows for partial consistency with the father’s version of the event, but the subsequent expansion of the allegation to deliberate exposure of his penis by standing up and pulling down his pants eradicates any ambiguity about how any part of the father’s genitals were revealed to G. The significant change of story piques interest in G’s reliability.
[23] Family Report, para 65
Doubts about her reliability are only compounded by her express denial to the police of the exposure of her own genitals to the father, either at his request or of her own volition. It is an uncontroversial fact she did expose herself to the father, because the father admits she did and she told the mother so that night, though their versions about how it occurred were different. Consequently, G’s report to police about that aspect of the incident was clearly false. She later told the Family Consultant that her omission to tell the police that part of the story was due to her lack of memory,[24] but that is difficult to accept as truthful. It was not as if she simply forgot to mention it while telling the police an uninterrupted tale because the interview was conducted in a question and answer format and some of the questions expressly called for her to state whether she exposed herself and whether the father asked her to do anything. She responded with denials to both questions. It is quite unlikely she forgot that aspect of the incident in the few weeks between December 2015 and the police interview in January 2016, but then remembered again when discussing the incident with the Family Consultant in April 2016. If her report to police was deliberately false, at least in part, it demonstrates that considerable caution must attend acceptance of other aspects of her account about the incident.
[24] Family Report, paras 66, 75
The mother and the Family Consultant considered there were some objective reasons why G’s report may be reliable: she had no apparent motive to lie; she confronted the father by declaring he was a liar in his presence; and she has not resiled from her version of the event.[25] However, the evidence presented a rational answer to each of those considerations. As to the first, she could have been motivated to lie about the incident because she knew she was in trouble for what she did and was liable to be punished unless she was blameless. As to the second, she did not openly declare the father was a liar because the mother said in cross-examination G only whispered to her that the father was lying when they were alone together in another room, implying G did not want to be overheard by him when she accused him of mendacity. As to the third, G would probably know there would be trouble in store for her if she recanted now, after the family upheaval and police involvement caused by her story, so if her allegation of the father’s impropriety was untrue it is unsurprising she still adheres to it.
[25] Family Report, paras 85-87, 105
The mother’s reports about the incident have also been unreliable, exemplified by two significant inconsistencies.
First, as already mentioned, the mother asserted in her affidavit that, on the night of the incident, the father gave her an innocent explanation that his “balls [were] hanging out of [his] shorts”, but in cross-examination she denied he gave her any such innocent explanation at the time. Those two sworn statements are irreconcilable.
Secondly, her irreconcilable evidence was also irreconcilable with comments she made to the Family Consultant. When discussing the matter with the Family Consultant in April 2016, the mother said the father told her G had “never seen [his] balls”.[26]
[26] Family Report, para 85
Consequently, the mother’s versions of statements made by the father about the incident range between: his provision to her of a contemporaneous innocent explanation about the accidental exposure of his testicles, his suspicious silence, and his false denials of G having ever seen his testicles at all. Such versions cannot all be true. In fact, two of them must be false. Only the version given by the mother in her affidavit correlates with the father’s evidence. He consistently asserted he explained to the mother on the night that the exposure of his testicles to G was accidental.
Although the mother professes complete faith in the truth of G’s reports, she was not always so convinced. Both her admissions and her conduct proved it. When G initially told her about seeing the father’s “balls” she admitted she was “confused” and “did not know what to think”.[27] Her doubts about G’s story only abated “months later” when her story “remained the same”.[28] Such admissions to the Family Consultant correlated with her admissions in cross-examination about her initial shock and confusion. Moreover, her admissions to the Family Consultant and in cross-examination correlated with her conduct. Only days after the incident, the mother voluntarily left G and the eldest child in the father’s unsupervised care while she went out shopping and to have lunch with the maternal and paternal grandmothers.[29] That occurred on 3 January 2016, before she decided to permanently separate from the father. Such conduct is consistent with her believing the children were perfectly safe in the father’s care, regardless of what transpired between the father and G only days before, and quite inconsistent with her holding any apprehension about the children being at risk of harm in his care. The Family Consultant confirmed that to be so in cross-examination, though such an obvious inference hardly needed her endorsement.
[27] Family Report, para 85
[28] Family Report, para 87
[29] Father’s affidavit, paras 35, 54
The father alleged, both to the police during his interview and during his cross-examination at trial, that he told the mother the morning after the incident with G that she should immediately report the matter to the authorities for it to be investigated if she did not believe him. She did not do so. The mother admitted she told the maternal grandmother of the incident some days afterwards, who also told her to go to the authorities immediately.[30] She did not do so then either. It was not until weeks later when on holidays with the maternal grandmother, on 14 January 2016, that she decided to report the incident to the police for investigation, by which time she had decided to permanently separate from the father.
[30] Mother’s first affidavit, para 54
In aggregation, the transformation of G’s story about how and what part of the father’s anatomy she actually saw, the slow hardening of the mother’s belief in G’s story while engaged in this litigation with the father, and the inconsistency of the mother’s evidence about what she was told by the father about the incident with G cause considerable disquiet. By comparison, the father’s resolute and consistent account of the incident inspires confident acceptance of it. The evidence does not reasonably support a conclusion that the children are at any tangible risk of harm by reason of his subjection of them to sexual abuse.

Risk of harm from physical abuse

Although the mother did not adduce evidence of the father’s physical abuse of the children, she alleged they were at risk of harm through such abuse because he had previously physically abused G. She alleged his physical abuse of G continued up until December 2015, sometimes causing welts and bruising to her skin.[31] The last incident of such abuse described by the mother occurred when the father threw a Christmas bauble at G, hitting her on the leg. In cross-examination the mother alleged it caused bruising, which she photographed, though she did nothing more about it at the time. However, her evidence was contradicted by G. During her interview with police on 18 January 2016, that was the first incident she told them about. She said she was not hurt when hit on the leg, she could not recall sustaining any marks on her leg, and nothing like that had happened before.
[31] Mother’s first affidavit, paras 39-45
The father denied any physical abuse of G. He admitted he threw a Christmas bauble at her when she refused to do as she was told, but he denied she was injured or that it was an incident that amounted to “abuse”.
The mother was challenged in cross-examination about the incongruence between her allegations about the father’s abuse of G and her failure to do anything about it. She admitted in cross-examination she was “silly” not to have reported the incidents of alleged abuse when they occurred. She alleged she reported the physical abuse to police when she went to report the father’s indecency with G, but there is no corroboration of it in the police records of the mother’s report made on 14 January 2016.[32] When she later made a statement to the police on 11 February 2016, she merely made a passing reference to the father’s “disciplinary action against G” which was “not always appropriate and could be excessive”, but said no more of it.[33] She alleged the police refused to accept the photographs she said depicted bruising inflicted upon G by the father, but that is difficult to accept as true. The police took from her copies of her diary and recordings, so there was no logical reason for them to reject other alleged corroborative evidence like photographs. The police were then actively investigating any abuse perpetrated by the father upon G. It is highly unlikely they would have disregarded clear allegations of physical abuse to focus solely on the alleged single incident of indecency. In fact, the police did not disregard it. During the interview they invited G to tell them all her complaints about the father and, so far as allegations of physical abuse are concerned, the incident with the Christmas bauble in December 2015 was the only incident she mentioned.
[32] Exhibit F2
[33] Mother’s first affidavit, Annexure E (para 4)
Physical “abuse” as defined in the Act (s 4) is distinguishable from discipline or punishment, though the latter can constitute the former if it amounts to an assault. It would be unlike the mother to refrain from protecting her children if such protection was really needed. She sprang to G’s defence when G reported the incident of indecency on 28 December 2015. She would likely have done so on other occasions if she genuinely felt G needed protection against physical abuse by the father. Most likely, the incidents of G’s alleged abuse to which she referred in her affidavit were episodes of discipline by the father that she regarded as excessive, but not so excessive as to warrant further action. Such an inference is consistent with the description she gave in her formal police statement and with the disinclination of the police to act on G’s complaint about the incident with the Christmas bauble. The evidence does not reasonably support a conclusion that the children are at any tangible risk of harm by reason of subjection to physical abuse while in the father’s care.

Risk of harm from family violence

The mother told the Family Consultant and adduced evidence about family violence perpetrated upon her by the father and paternal grandmother. She alleged several incidents of violent conduct by the father occurred throughout their relationship.[34]
[34] Family Report, paras 22, 27; Mother’s first affidavit, paras 24, 31-38, 46, 47
The mother conceded that she not only failed to report such violence when it occurred,[35] but that she positively denied being the victim of domestic violence when asked about it by her ante-natal nurse. That denial must, on the mother’s case, have been a lie, but that does not completely destroy her credit. It would have been embarrassing for her to admit her victimisation while pregnant to the alleged perpetrator.
[35] Family Report, para 27
The father denied his commission of any family violence upon the mother, both to the Family Consultant and in evidence.[36]
[36] Family Report, para 31; Father’s affidavit, paras 70, 216
The clash between the parties’ evidence might, at least in part, be reconciled by their different perceptions about what kind of conduct might amount to “family violence”, which concept is now defined very broadly in the Act (s 4AB). It encompasses much more than a physical assault, which is plausibly the father’s simplistic understanding of it. Such an understanding would rationally explain why he denied assaulting the mother, but admitted pushing the parties’ washing machine down the front stairs across the driveway during an argument to try and prevent her from driving their car away from the family home while he believed she was intoxicated. The father’s conduct during that incident was undoubtedly violent and it frightened the mother, so it was an episode of “family violence” as defined by the Act.
The parties called several of their former neighbours as witnesses in an attempt to corroborate themselves and contradict the other about the occurrence of family violence during their relationship, but that evidence did not assist much. The witnesses could hardly attest to that which they could not see and they each admitted they saw very little.
Most likely the parties’ relationship did have an element of volatility. The mother admitted she pushed the father out of the way and yelled at him[37] and the paternal uncle saw her slap, push, and shove the father.[38] The father probably occasionally acted in the same way towards the mother, much like she alleged. The truth probably lies somewhere between their respective versions of past events. I am not satisfied the father’s unconditional denial of any family violence is correct, but nor am I satisfied of the accuracy of the mother’s version, which seemed embellished to some extent.
[37] Family Report, para 31
[38] Affidavit of Mr J Walsh, paras 89-90
Irrespective, it is common ground there have been no violent or threatening incidents between the parties since their separation. The evidence does not reasonably support a conclusion that the children are at any risk of harm by reason of exposure to family violence while in the father’s care. The mother conceded as much during final submissions. While she correctly submitted the occurrence of past family violence was sufficient to displace the presumption of equal shared parental responsibility (s 61DA(2)), she admitted the evidence she adduced about past family violence would not, of itself, materially influence the amount of time the children should spend with the father.

Risk of harm from neglect

The father told the Family Consultant and adduced evidence about the mother’s neglect of the children,[39] but the Family Consultant held no concerns about the children’s development, presentation, or behaviour and concluded they were not at risk of harm in the mother’s care.[40]
[39] Family Report, para 54; Father’s affidavit, paras 123-136, 211
[40] Family Report, paras 60, 97, 98
The father conceded in cross-examination, as he was logically obliged, that because he proposed the children continue to live primarily with the mother then his complaints about her neglectful care of them were unworthy of serious consideration. He may harbour some concern about the standard of the mother’s care of the children, but his concerns were not so serious as to justify reversal of their residence. The only tenable conclusion is that the children are not in need of protection from harm by reason of their neglect while in the mother’s care. That concession was formally made in final submissions.

Conclusion

The children are not at unacceptable risk of any physical or psychological harm, and therefore do not require any protection against such prospective harm, while in the care of either party by reason of their subjection or exposure to abuse, neglect, or family violence.

Children’s best interests – additional considerations

Few of the additional considerations under s 60CC(3) of the Act were addressed by either party or the Independent Children’s Lawyer as being relevant to the outcome of the proceedings.
The most significant issue was the mother’s desire to relocate with the children away from the “E Town/L Town area of NSW”, where she is currently confined by interim order.[41] Since the father lives in E Town and intends to continue doing so, any move by the mother with the children out of that area risks curtailment of the time the children are able to spend with him. Currently the parties’ households are thirty minutes driving time apart,[42] but the mother would like to move further away to escape the surveillance and harassment to which she feels she is subjected by the paternal family.[43]
[41] Order 1.1 made on 1 February 2016
[42] Family Report, para 5
[43] Family Report, para 19
The mother explained her sense of harassment to the Family Consultant.[44] She had an objective basis to feel that way. In February 2016, only weeks after the parties’ separation, the father and paternal grandmother unwisely attended the maternal grandmother’s home while the mother was there. Unsurprisingly, a confrontation ensued and the maternal grandmother forcibly ejected the paternal grandmother from her property as a trespasser.[45] The paternal uncle then sent abusive messages to the mother via social media, until the police instructed him to stop. Fortunately, the tension between the maternal and paternal families seems to have dissipated. The father admitted it had been unwise to attend the maternal grandmother’s home with the paternal grandmother and there have been no problems between the parties since that incident. More recently, in July 2016, the mother and paternal uncle met by chance at a service station and their interchange was cautious but convivial. Although the mother still genuinely fears harassment by the paternal family, there is probably no longer any objective basis for her apprehension. Enabling the mother to establish her home with the children in a different locality from E Town and L Town will help abate her apprehension.
[44] Family Report, paras 43-45
[45] Exhibit M3

In final submissions, the mother said she would submit to an order restraining her from establishing a new home with the children further north than D Town and further south than E Town. Confinement to that area was perfectly acceptable to her. The father wanted the mother more closely confined to the E Town environs, but parents have as much residential freedom as is compatible with their parental obligations (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173 at [132]-[136]). Only when the welfare of the children would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U (2002) 211 CLR 238 at 262).
The children presently only see the father for two hours each week at a contact centre, but they should spend much more time with him, enabling their relationships with him to flourish. That can still occur even if the mother and children live further away from the father than they do at present. The evidence was not so powerful as to suggest the children’s best interests require them to live in or about the same coastal township as the father. Their interests will not be adversely affected by imposing a more modest restraint upon the mother than that proposed by the father, allowing her to live with them about two hours driving time away from the father at D Town.
If the father remains living in or around E Town and the mother moves with the children to D Town, as they both respectively proposed, the children will still be able to spend plenty of time with the father. They need to spend substantial amounts of time with him to sustain and develop their own positive perceptions about him. They will likely become aware of negative attitudes about the father within the fold of the maternal family because G asserts he treated her indecently, the mother truly believes G, and the maternal grandmother considers the father and paternal family to be the “bane” of her life.[46] The Family Consultant confirmed in cross-examination the maternal grandmother was “relentlessly critical” of the paternal family.
[46] Family Report, para 57
There is really no doubt about the father’s parenting capacity and the support he enjoys from the paternal family. The paternal grandparents live near him and he sees them regularly.[47] Although the mother expressed mild reservations about the father’s parenting capacity to the Family Consultant,[48] she admitted she was prepared to leave the eldest child in his care for weeks when she was planning an overseas trip in late 2015. She would not have been willing to leave the child with him if she seriously doubted his parenting capacity.
[47] Family Report, para 50
[48] Family Report, para 46
The apprehended violence order in favour of G against the father was made by the Local Court of NSW at E Town on 6 April 2016 for a period of two years.[49] The parties acknowledged it relates only to G and does not extend to the children. Consequently, its terms are not inconsistent with any parenting orders made in respect of the children.

Conclusions and orders

[49] Exhibit M2; Family Report, para 6

Parental responsibility and residence

The presumption of equal shared parental responsibility does not apply because the evidence afforded reasonable grounds to believe that both parties engaged in some family violence (s 61DA(2)(b)).
It would still be possible to allocate equal shared parental responsibility to the parties, but that would only follow if such an order would meet the children’s best interests. The evidence suggests such an order would not do so. The father acknowledged communication between the parties would be “difficult” after the allegations of indecent conduct made against him in these proceedings. That would be especially so if the mother maintains her belief in his commission of the act of indecency, as she said she would, despite the contrary evidentiary finding.
The mother wanted sole parental responsibility for the children and the Family Consultant recommended she should have it. She recommended it in the Family Report[50] and confirmed the recommendation during cross-examination. She conceded shared parental responsibility is usually the preferred option, but said the preferred option is not suitable in all cases. The exercise of equal shared parental responsibility requires genuine cooperation and compromise between the parties (s 65DAC), not just civility at exchanges of the children. The parties’ level of communication and cooperation is not sufficiently advanced for them to share parental responsibility. It may improve in the future, but the evidence did not admit of safe prediction. Accordingly, parental responsibility, at least in respect of “major long-term issues” in the children’s lives (as defined in s 4 of the Act) must be allocated exclusively to one of the parties. That must be the mother because it was uncontroversial the children should continue to live primarily with her.
[50] Family Report, paras 100, 111
For reasons already explained, the mother will be restrained from establishing her new residence with the children further afield than a generously wide area on the north coast of NSW.

Spending time and communication with the father

Since equal shared parental responsibility is not allocated to the children’s parents, s 65DAA of the Act is not engaged. In any event, an “equal time” arrangement would neither be reasonably practicable, because the mother and children will probably soon relocate their residence to D Town, nor in the children’s best interests, for the reasons explained by the Family Consultant about which she was not challenged.[51]
[51] Family Report, paras 99, 100
The mother proposed that the children spend no time at all with the father. That was her proposal to the Family Consultant[52] and her preferred proposal to the Court.[53] Her fall-back position was for the children to only see the father on four occasions each year under supervision at a contact centre.[54] Those proposals, however, were premised on an assertion of the father presenting an unacceptable risk of harm to the children by reason of his prospective sexual abuse of them. A factual finding has been made that no such risk exists. In the absence of any such risk, there is no reason why the children should not spend as much time with the father as is compatible with the mother’s ability to live where she likes within reasonable proximity to the father.
[52] Family Report, para 19
[53] Exhibit M1, Order 3
[54] Exhibit M1, Order 4
The children are still only very young. The Family Consultant recommended that, in the absence of any risk to them in the father’s care, the time they spend with the father should expand gradually. She recommended three months of regular weekly visits before overnight stays are introduced. Thereafter, the visits should elongate progressively and extend to alternate weekend stays when the youngest child attains three years of age,[55] which will be in June 2018. No reason was advanced by either party for why that program should not be broadly followed and so the orders generally make provision to that effect. In fact, the father conceded in final submissions the children’s visits with him should only expand in a way that was developmentally appropriate for them.
[55] Family Report, para 113
The regime will make graduated progressions in January 2017, July 2017, and January 2018. The last progression to alternate weekend visits is made five months earlier than the Family Consultant recommended because the eldest child will start school in early 2018. She will then be ready for visits on alternate weekends and during school holidays. It was uniformly expected that the children would always visit the father together so delaying the introduction of alternate weekend visits until the youngest child turns three years of age would be tantamount to elevating her needs above the eldest child’s needs. There was no reason to think the youngest child could not cope with alternate weekend visits five months earlier than the Family Consultant recommended, particularly when she will be accompanied by her older sister. The Family Consultant admitted in cross-examination she did not turn her mind to school holiday periods, but visits during school holidays are also introduced in 2018 when the eldest child starts school.
Undoubtedly, the mother will be anxious about having to comply with such orders when she genuinely believes they may be at risk of sexual abuse by the father, as she earlier told the Family Consultant,[56] but she said in cross-examination she would comply with any orders made by the Court. She said she had considered the prospect that, contrary to her hopes, the Court would not find the father posed any appreciable risk of harm to the children. She said she knew it was best for the children if they could see their parents working together cooperatively, that she had the capacity to work with the father for the children’s advancement, and that she was willing to do her best. There is no reason to disbelieve her, but her conduct will speak loudest. If she is not true to her word then further litigation will likely ensue.
[56] Family Report, para 19
The mother told her counsellor she was concerned how G might react to a decision by the Court for the children to spend unsupervised time with the father. She is wise to foresee such a problem, but she is aware of it and should be able to manage it. The children should not be deprived of valuable relationships with the father just because G may be disappointed.
G regularly spends time with her own biological father in the E Town region. The mother deposed she has spoken with G’s father about her prospective residential relocation to D Town, of which he was supportive, and they agreed she would do most of the travelling with G to facilitate the continuation of their visits on weekends,[57] which commitment she confirmed during cross-examination. Their arrangement is informal because no court orders regulate G’s visits with her father. Since the mother has no family or friends living in D Town, the children will need to travel with her whenever she delivers and collects G to and from her father, which means she will be able to synchronise G’s weekend visits with her father and the children’s visits to the father. The maternal grandmother lives in the E Town district and the mother will be able to use her home as a local base if needed.
[57] Mother’s second affidavit, paras 5-6
The mother intends to move to D Town as soon as she is able. The driving time to E Town approximates two hours. To overcome her apprehension about intimidation by members of the paternal family, she said she would prefer the security of a public venue for exchanges of the children. She has a car and is willing to help convey the children to visits with the father. It was agreed the McDonalds Restaurant at F Town, which is approximately half-way between D Town and E Town, would be a suitable venue for changeovers. The orders therefore adopt it as the changeover venue, though the parties are free to agree otherwise if they desire – for example, if the mother unexpectedly does not relocate to D Town or if she is prepared to drive the children all the way to E Town because she is already driving G to the area to visit her father.
The father sought an order permitting him to communicate with the children by telephone once per week. Such an order is made. It was not opposed by the mother. The order also enables her to communicate with the children while they spend school holiday periods with the father from 2018 onwards. The order also permits telephone communication with the children on their birthdays.

Other orders

The mother previously consented to an order restraining her from bringing the children into contact with the maternal step-grandfather, Mr M.[58] The father sought the order because he was worried Mr M had paedophilic tendencies, as he alleged the mother told him during their relationship that Mr M had molested her at a young age.[59] The mother denied she made any such allegation, but the father was corroborated by the paternal uncle.[60] In any event, even if the mother did not make such an allegation against Mr M to the father or paternal uncle, her comments about the situation were probably untruthful. She certainly knew the father alleged she had once told him about her sexual abuse by Mr M, she knew that was the reason why he sought the injunction against her concerning Mr M, and she consented to the interim injunction being made on his application, so it was disingenuous of her to tell the Family Consultant she had “no idea” why the interim injunction was in place.[61]
[58] Order 3 made on 1 February 2016
[59] Family Report, para 38; Father’s affidavit, paras 152-154, 159-160
[60] Affidavit of Mr J Walsh, para 66
[61] Family Report, para 39
The father wanted the injunction concerning Mr M perpetuated as a final order. The mother opposed it but, according to her comments to the Family Consultant and her evidence, she would not be unduly prejudiced by it. She told the Family Consultant she did not talk to Mr M and had no relationship with him, though she offered no reason for why.[62] She admitted in cross-examination that Mr M was friends with another man who only last year was sentenced to imprisonment for child sex offences. She also admitted she understood the father’s concern about Mr M. In the face of those concessions she failed to call any evidence from Mr M. Given the familial relationship between them and her failure to offer any reason why she failed to call him as a witness when she knew the father sought a permanent injunction, an inference is available and is drawn that his evidence would not have assisted her case.
[62] Family Report, para 39
Although the father sought an unconditional injunction restraining the mother from allowing the children to be in Mr M’s presence at all, the order is not made in such absolute terms. Mr M lives with the maternal grandmother and the mother relies upon the maternal grandmother for support. An injunction in the absolute terms sought by the father would virtually preclude the mother from ever attending the maternal grandmother’s home. If the father’s evidence was truthful and accurate, the mother is well aware of the sexual proclivities of Mr M and would not likely leave the children unattended in his presence. For that reason, the mother is only restrained from allowing the children to be in the physical presence of Mr M without her direct supervision.
The mother emigrated to Australia with the maternal grandmother as a child. She still has family in the United Kingdom and wishes to visit them with the children when she is so inclined and her financial circumstances permit. She recently planned such a trip, but was thwarted by the interim orders made by the Local Court of NSW at F Town which restrained it.[63] During the trial, after the mother confirmed she had no intention to move permanently back to the United Kingdom with the children, the parties agreed there should be no impediment to her taking the children on holidays to the United Kingdom. The orders now made will discharge the interim injunction against all international travel by the children, as the mother wanted,[64] and notations are made confirming the children’s habitual place of residence to be in NSW, Australia. Such notations should make it easier for the father to secure the children’s return to Australia if they are unexpectedly detained overseas by the mother.
[63] Orders made on 18 January 2016
[64] Exhibit M1, Order 5
The mother did not wish to divulge her address or any other contact details to the father, apart from her mobile telephone number. The father did not object. The orders therefore require the parties to keep one another informed of their mobile telephone numbers, as occasions will likely arise when they need to contact each other about arrangements for the children.
The remaining orders are self-explanatory and could not be the subject of reasonable objections.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 October 2016.

Associate:

Date: 13 October 2016