WARDE & WARDE

[2020] FamCA 294

FAMILY COURT OF AUSTRALIA

WARDE & WARDE [2020] FamCA 294

FAMILY LAW – CHILDREN – Parenting – Where both parties contend the other to be an unacceptable risk of harm to the children – Where both parties do not pose a risk of harm to the children – Where the children will benefit from having a meaningful relationship with the parties – Where the parties are unable to cooperate and make decisions together – Order for sole parental responsibility to the mother – Order for children to spend time with the father on a graduating basis from supervised time in a contact centre to unsupervised time.

Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth)

B and B (1993) FLC 92-357; [1993] FamCA 143
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R. 67; [1893] 1 WLUK 44
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

APPLICANT: Ms Warde

RESPONDENT: Mr Warde

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: SYC 6344 of 2017

DATE DELIVERED: 4 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 20, 21, 22, 23, 24 January 2020 and 10 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: McAuley Hawach Lawyers

COUNSEL FOR THE RESPONDENT: Mr Coleman SC

SOLICITOR FOR THE RESPONDENT: Thornton Storgato Law Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Conte Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

1. That the mother have sole parental responsibility for the children Y born ... 2013 and X born … 2015 (“the children”).

2. That in exercising sole parental responsibility, the mother shall keep the father informed of decisions she makes in relation to issues of parental responsibility as follows:

   (a)by notifying the father in writing (including electronic communication) of her intention to make a decision;

   (b)taking into consideration any view held by the father in relation to that decision; then

   (c)       advising the father in a timely manner of any decision she has made.

3. Notwithstanding Order 1 herein, the father is entitled to:

   (a)communicate with and receive communications from any school or educational facility, including any extracurricular activity attended by the children or either of them, including but not limited to newsletters, reports, results, notifications ordinarily received by parents;

   (b)attend upon any school, educational facility or extracurricular activities attended by the children or either of them at times when parents are invited to attend, including but not limited to interviews, presentations, assemblies, concerts, meetings, classroom activities, special events, excursions, parent-helper activities;

   (c)communicate with, receive communications from and attend upon any health practitioner engaged by the mother to treat either of the children in accordance with the policies and protocols of the treating practitioner and for this purpose, the mother shall keep the father informed of any treating health practitioner attended upon by either of the children.

4. The children shall live with the mother.

5. Within seven (7) days of the making of these Orders, both parents shall contact a private supervision service as nominated by the Independent Children’s Lawyer, commence intake procedures and do all acts and things as required by the service in a timely fashion so as to give effect to Order 7(a).

6. The father shall pay any fees associated with the private supervision service.

7. The children shall spend time with the father as follows:

   (a)For the first six (6) weeks under the supervision of the private supervision service:

   (i)each Wednesday for two (2) hours between 4:00 pm and 6:00 pm or at another time and weekday convenient to the supervision service but not during school hours;

   (ii)each Saturday or Sunday for not more than four (4) hours at a time convenient to the supervision service; and

   (iii)subject to the policy of the supervision service, the father should include the paternal grandparents in the supervised visits from the fourth (4^th) week (after the father has had six (6) visits with the children).

   (b)For the following six (6) weeks, in the presence of the paternal grandmother, Mrs C Warde:

   (i)each Wednesday from after school until 5:30 pm; and

   (ii)each Saturday from 12:00 midday until 5:30 pm.

   (c)       For the following six (6) weeks:

   (i)each Wednesday from after school until 5:30 pm; and

   (ii)every second weekend from after school on Friday until 10:00 am Saturday in the presence of the paternal grandmother.

   (d)For the following three (3) months the father spend unsupervised time with the children:

   (i)each Wednesday from after school until 5:30 pm; and

   (ii)every second weekend from after school on Friday until 5:30 pm Saturday.

   (e)For the following three (3) months:

   (i)each Wednesday from after school until 5:30 pm; and

   (ii)every second weekend from after school on Friday until 10:00 am Sunday.

   (f)        For the following six (6) months:

   (i)each Wednesday from after school until 7:00 pm with the father to ensure the children have had dinner; and

   (ii)every second weekend from after school on Friday until 7:00 pm Sunday.

   (g)       Thereafter, the children shall spend time with the father:

   (i)during school terms, every alternate Wednesday from after school or if schools are not open, at the time of the usual completion of the school day, until before school on Thursday;

   (ii)during school terms, every alternate weekend from after school on Friday until before school on Monday;

   (iii)for one half of the Autumn, Winter and Spring school holidays as agreed and failing agreement, with the father for the first half of these holidays from the last day of term in odd numbered years and the second half until the commencement of school in even numbered years with the changeover to be at 5:00 pm on the middle Saturday of these holidays;

   (iv)for one half of the Christmas school holiday period as agreed and failing agreement, with the father from the conclusion of the school term until 5:00 pm on 7 January in odd numbered years and from 5:00 pm 7 January until the commencement of school in even numbered years;

   (v)such further or other times as may be agreed between the parents;

   (vi)after the conclusion of the school holiday period, the alternate weekend arrangement in accordance with Orders 7(g)(i)–(ii) shall resume with the children spending time with the parent who did not have the second half of the holidays on the first Wednesday and first weekend of the school term.

   (h)on Father’s Day if the children are not otherwise in his care, from 5:00 pm on the Saturday prior until 5:00 pm Father’s Day.

   (i)on Christmas Day from 5:00 pm Christmas Eve until 5:00 pm Christmas Day in even numbered years or at other times when the children are not      otherwise in the father’s care.

8. The mother shall have time with the children if the children are not otherwise in her care:

   (a)on Mother’s Day from 5:00 pm on the Saturday prior until 5:00 pm on Mother’s Day; and

   (b)on Christmas Day from 5:00 pm Christmas Eve until 5:00 pm Christmas Day in odd numbered years.

9. That for the purpose of changeovers that do not occur at the children’s school/s, excluding Order 7(a) herein, the father shall collect the children from the mother’s residence at the commencement of his time with the children and the mother shall collect the children from the father’s residence at the commencement of her time with the children.

10. That both parents may communicate with the children by telephone or a visual communication service when they are in the care of the other parent as agreed and failing agreement, between 5:30 pm and 6:00 pm each Friday evening and on each child’s birthday with the parent who does not have the care of the children to call the other parent who shall ensure the children are available to speak with the parent.

11. Both parents are to:

    (a)engage in a counselling service and for this purpose both parents have leave to provide the treating practitioner with the psychologist reports prepared by Dr B dated 19 March 2019, 27 March 2019 and 4 April 2019;

    (b)utilise a parent communication App for the purposes of communicating about issues relating to the children (such as “Our Family Wizard” or similar);

    (c)within twelve (12) months of the date of these Orders, enrol in and complete a parenting after separation program and additionally the father shall complete the “Circle of Security International” program;

    (d)speak to the children in a positive manner about the other parent and must not denigrate the other parent or any family members in the presence or hearing of the children or either of them, nor allow any third party to do so;

    (e)ensure the other parent is kept informed of their current residential address and telephone contact number and advise the other parent within forty-eight (48) hours of any change; and

    (f)advise the other parent in the event any of the children are taken for medical treatment including the name and location of the treating practitioner and facility providing the treatment.

12. That both parents are permitted to travel with the children outside of the Commonwealth of Australia provided that:

    (a)such travel occurs within countries that are signatory to the Hague Convention unless otherwise agreed in writing;

    (b)the travelling parent has provided the other parent with an itinerary showing all travel destinations; address and contact details of all accommodation in which the children will stay; dates and methods of travel including flight/ship number; departure and arrival times; and

    (c)such travel only occurs at times when the travelling parent has the children in their care in accordance with these Orders unless otherwise agreed.

13. That both parents shall ensure the children have a current Australian Passport and shall sign any passport application/renewal form within seven (7) days of a request to do so by the other parent.

14. That the children’s passports remain in the care of the mother and in the event the father notifies the mother in writing of his intention to travel overseas with the children, together with the provisions in Order 12 herein, the mother shall provide the passport/s to the father within seven (7) days of receiving such notification and the father shall return the passport/s to the mother within forty-eight (48) hours of his return or upon notification from the mother of her intention to also travel overseas prior to the father’s intended date of departure (and in these circumstances return the passport to the father prior to his travel).

15. The mother shall provide a copy of the Orders and Reasons to the maternal grandmother, Ms D.

16. Within three (3) months of the date of these Orders, both parties pay the sum of $7,603.75 towards the costs of the Independent Children’s Lawyer.

17. The Court requests the Independent Children’s Lawyer to monitor the parents’ participation in the program referred to in these Orders, and the Order appointing the Independent Children’s Lawyer be not discharged until six (6) weeks from the date of these Orders.

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 Warde & Warde 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 SYDNEY

FILE NUMBER: SYC 6344 of 2017

Ms Warde

Applicant

And

Mr Warde

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Warde (“the mother”) and Mr Warde (“the father”) are the parents of two children, Y born in 2013 and X born in 2015.

2. This case requires determination of whether the father poses an unacceptable risk of harm to the children such that he should have no, or virtually no contact with them.  The case also requires determination of whether there is an unacceptable risk of harm to the children in remaining in the care of the mother and, if found, that they immediately move to live with the father.

3. The asserted risk of harm from the father is said to be because he has touched Y in a sexually inappropriate way.  The mother further says that the father is a danger to the children and poses an unacceptable risk of harm to them not only because of the alleged sexual impropriety but also by reason of other matters which taken either together or individually create an unacceptable risk of harm to the children if they spend time in the father’s company.

4. Consistent with that position, at the commencement of the hearing, the mother sought orders that she have sole parental responsibility for the children and the father have no time with the children.  In the alternate to there being no time, the mother proposed that the father see the children four times a year for a period of three hours on each occasion in a supervised setting.

5. The father says that the mother poses an unacceptable risk of emotional and psychological harm to the children and she has embarked on a course to malign him such that unless the children are immediately moved to live with him, they are at risk of being poisoned against him by the mother’s implacable dislike of him and the allegations she makes against him, and the children will suffer both long and short term emotional consequences.

6. In short, both parties assert that the children are at an unacceptable risk of harm from the other.

Background

1. The mother was born in 1976 and the father in 1975.  They began to live together in December 2012 and married in mid-December of that year.  They separated in about September 2015 albeit remained living in the same house until the father moved out in March 2016. 

2. Y was conceived shortly after the parties married and the mother was thereafter principally engaged in caring for her.  The father conducted his own business which, he said, required considerable time and physical effort.

3. Equally after the birth of X, the mother was the principal carer of her, and the father continued to work.

4. The mother asserts that the father was not interested in the children or their welfare, he denies that this was the case and referred to the role he took in caring for the children at times when he was not working.

5. In September 2017 the mother commenced proceedings for parenting and property settlement orders.  The property aspect of the case was settled by the parties in December 2019 before the commencement of these proceedings.

6. The father first became aware of the mother’s allegations that he had sexually abused Y when he read her affidavit in support of the orders she sought.

7. From the time that the father left the marital home in about March 2016 he has spent no time with the children until he was interviewed with the children on

   
   

   6 March 2019 for the preparation of the expert report.  The father said he attempted to see the children after separation but the mother prevented that happening.  For a little time after the parties separated the mother facilitated telephone contact between Y and the father but that was stopped by the mother.

8. The mother however contended that the father showed no interest in seeing the children and did not ask to see them.  When asked whether she had offered the father an opportunity to see the children, she said she could not remember.  The father denied this and asserted that his requests to see the children were either ignored or denied.  Equally, he said, presents and cards he sent the girls were returned to him.  I accept that the mother on one occasion did provide the presents to the children because she took photos of them opening the present and sent the photos to the father.[1]  The father produced a card which he had sent to the children which was clearly marked “return to sender”.[2]  The alleged conduct by the mother is consistent with her expressed view of the father and, supported by the evidence of the returned letters, I am inclined to accept the father when he says that the mother refused the contact.

   [1] Exhibit ICL4.

   [2] Exhibit H8.

Sexual abuse of Y

1. For the reasons which follow I am not satisfied that the father sexually abused Y.

2. The circumstances supporting the mother’s allegation that the father sexually abused Y commence with an incident in about March or April 2015 when she had left the child in the care of the father for about 1.5 hours.  The mother said that when she came home and began to change Y’s nappy she noted that her genitals were “red, inflamed and enlarged”.  The father walked past the room and it is accepted by both parties that they then had the following conversation:[3]

   [The Father]: Is everything ok?

   [The Mother]: Why is Y so red?

   [The Father]: What are you accusing me of, it’s a nappy rash.

   [3] Transcript of 20 January 2020, p. 77 lines 35 – 37; Transcript of 22 January 2020, p. 62 line 45 to p. 63 line 2.

3. An argument ensued which was, at this point of their relationship, apparently not unusual.  The father said that the mother’s tone was accusatory.  The mother said that the father’s response was aggressive.  The mother agreed that the child’s red genitals had made her think that she had been sexually abused.

4. The mother said the father walking past the room and asking whether everything is ok was unusual and it aroused her suspicions. The father said he had not seen the redness and swelling that the mother said she saw.  In questions about this incident asked of her by the Independent Children's Lawyer, the mother was asked:[4]

   [Counsel for the Independent Children's Lawyer]: Can you accept from me that there are likely, not just one, but more than one alternative explanations for that redness, which do not involve Y being sexually abused?

   [The Mother]: … I hope that’s the possibility.

   …

   [Counsel for the Independent Children's Lawyer]: So you can’t be blaming the father for that incident?  

   [The Mother]: I just find it very strange his reaction.

   [4] Transcript of 20 January 2020, p. 80 lines 15 – 18 and 27 – 28.

5. The Mother went on to say that she thought Y was being sexually abused based on what she saw of Y’s genitals, which was “… the exposure and swollenness around the vulva area”.[5]

   [5] Transcript of 20 January 2020, p. 80 lines 33 – 34.

6. Quite what the mother meant by “exposure” of the child’s genitals was not made clear.

7. The mother said however that she had a feeling that something had happened to Y and that the father had done it.

8. The second incident of asserted sexual impropriety occurred in about July 2015.  The mother said that the father was putting Y to bed, something he did regularly at this time.  The mother entered the bedroom and noticed that the child’s pyjama pants were not on although Y was wearing a nappy.  The mother immediately said to the father “why are her pants off”?  The father responded that it was hot.  The mother said, and the father denies, that he “stormed off”.[6]

   [6] Transcript of 22 January 2020, p. 62 line 22 and lines 41 – 43.

9. When asked about this incident, and why she reacted as she did, the mother said:[7]

   Well, it was late at night… I was worried about [Y] getting cold at night. Kids get sick. So I try and avoid that.

   [7] Transcript of 20 January 2020, p. 81 lines 13 – 15.

1. The mother agreed that there was no indication that the child’s nappy had been removed or interfered with.  During the mother’s evidence the following exchange occurred:[8]

   [Counsel for the Independent Children’s Lawyer]: When you walked into that room and you said “[w]hy are her pants off?” was your immediate thought – that gut feeling you talked about – that [Y] was being sexually interfered with?

   [The Mother]: Yes.  It did come up again.  I did feel that gut feel[ing]… since that first incident…

   [Counsel for the Independent Children’s Lawyer]: So in your mind is it fair of me to say you were probably looking for any evidence that [Y] had been sexually abused at that point?

   [The Mother]: No.  I was just observant of what I saw and it was my reaction… that came up from the usual observing of Y…

   [Counsel for the Independent Children’s Lawyer]: The redness?

   [The Mother]: The redness.

   [8] Transcript of 20 January 2020, p. 82 lines 8 – 18.

2. The next matter on which the mother relies to demonstrate that the father had sexually abused Y was that when Y got a bit older she would play with her father by running up to him and jumping on him.  The mother asserted that the father said: “[Y] keeps landing on my penis” and the mother said she told the father to “move if it hurts” but instead, she said, the father continued to let Y jump onto him.  The father denied both the conversation and that Y was landing on his penis.

3. In September 2015, the police attended the parties’ home in response to a request from the maternal grandmother, Ms D, whom the mother had called during an argument with the father.  Police attended on that night and two days later the mother was spoken to again by the police at which time the mother asked the police officer whether they had any information about the father being a paedophile.  The mother’s explanation for that question was that she was “concerned about [the father] and his strange behaviour…”.  The mother does not indicate why at that point, the father’s so called “strange behaviour” caused her to ask whether he was known to police as a paedophile.  No response from the police officer is recorded and I assume that the police had no such information.

4. Next, the mother asserts that on an occasion in late 2015, the father and Y were sitting on the couch together watching television.  The mother said that there was a “sex scene” in the program and she asked the father to turn the program off.  He refused.  She said he said “[i]t’s good for [Y] to learn”.  The father denies he said these words but in any event recalled the incident and said that the sex scene “was over before [he] even knew it… was on” and he was not able to turn off the television.[9]

   [9] Transcript of 22 January 2020, p. 64 lines 38 – 39.

5. Some five months after the father left the family home, the mother reported that Y was having difficulty urinating and was in obvious distress.  She took Y to the doctor.  According to the mother, the doctor, upon examining the child observed that she “… had a scratch on the inside of her vagina probably from itching herself”.  According to the mother, the doctor said: “[h]as anybody touched her?”.  The mother said that she was not suggesting that the father had done anything to Y at that time.  It is thus difficult to understand the point of including this incident in her affidavit however, this account appears under the heading: “Sexualised behaviour of Y and her disclosures” and perhaps it was included to suggest that the child scratching herself was an example of “sexualised behaviour” as the heading to these paragraphs implies.

6. An expert psychologist, Dr B was engaged to interview the parties, the children and other relevant people and prepare a report to the Court.  Dr B prepared a principal and two supplementary reports.  It was not suggested to Dr B that any of Y’s behaviour was “sexualised”, a term I understand to be a term of art.  I assume then that this characterisation of the child’s behaviour comes from the mother and, of course can have no probative value at all.  In any event, Dr B observed in his first report dated 19 March 2019, that while noting the complaints of Y putting her hand up the maternal grandmother’s dress and touching X’s “vagina”, said that Y had been attending pre-school for two years and there were no reports of her displaying “sexualised behaviour” in that context.

7. On 6 September 2016 the mother came into Y’s bedroom to find her with her underpants off and she was touching herself “on the vagina”.  She was not yet three.

8. In her trial affidavit, the mother sets out the following conversation with the child:

   [The Mother]: Don't do that it's rude.

   Y: I want to.

   [The Mother]: We are going to sleep put your pants back on.

   Y: I want to.

   [The Mother]: Don't touch it, its [sic] rude.

   Y: Daddy does that.

   [The Mother]: What.

   Y: “There” and pointed to her belly button.

   [The Mother]: Tell mummy everything, what does he do, where does he touch you?

   Y then pointed to her vagina.

   Y: Are you cranky Mum?

   [The Mother]: No, you're not in trouble, I'm just sad.

   (As per the original)

9. The next day, the mother took the child to the toilet and the child pointed to her vagina and said the word “[d]addy”.  The mother then took up a doll and said “[c]an you show me with this dolly where [d]addy touched you?”.  In response to this, the mother said that Y “pointed to the vagina area of the doll”.

10. The mother took the child to see a general practitioner who conducted an examination of the child’s external genitalia.  Nothing was found.

11. In January 2017 the child put her hand under her maternal grandmother’s skirt and after being told not to do that, the child said “[m]y daddy does that” to which her grandmother asked “[d]id [d]addy hurt you”?  The child said “yes”.  The mother, on being told of this conversation asked Y “[w]hat did daddy do”, the child said nothing but she kissed her grandmother’s knee.

12. On 2 February 2017, on Y’s first day of preschool, she put her head in the mother’s crotch.

13. In her trial affidavit, the mother deposed that in August 2017 Y told the mother and her maternal grandmother that her: “[d]ad came in and he put the light on, and he touch my bum with his finger, like this with lots of fingers… real hard” (As per the original).

14. It is not necessary to here repeat all of the occasions on which Y complained that her father touched her inappropriately and, according to the mother’s affidavit there were several before 3 August 2018 when Y again said that her father touched her and added, “I told him to stop but he didn’t listen” and also said “I’m scared to tell the [p]olice”.  The mother deposed that as recently as 11 August 2019 Y remembered that the father stuck “his fingers in [her] mouth trying to choke [her] and tickled [her] down there… [while the child] pointed to her vagina area” (As per the original).

15. In her oral evidence the mother said that from time to time Y “opens up” to her about the alleged abuse and the mother asks questions about what Y says.[10]  So much is apparent from the conversations reported by the mother in her affidavit.  So too, it seems the maternal grandmother questions and discusses with Y what she says.

    [10] Transcript of 20 January 2020, p. 75 lines 14 – 15.

16. The alleged abuse of Y by her father was reported by the mother to the Department of Family and Community Services (“FACS” as they were then known) on 10 February 2017.  The child was interviewed by JIRT (the Joint Investigation Response Team) but made no disclosure to the interviewing officer.  The investigation was terminated in May 2018.  However, on advice from a FACS caseworker, the mother commenced counselling for Y who has since seen the counsellor each week during the school term.

17. In August 2018 the mother deposed that Y “opened up” to her maternal grandmother who told the mother what the child had said, and the mother then made a recording of what Y said.  Notwithstanding sending the recording to the police, no further action was taken by them.  The recording was not part of the evidence before this Court.

18. It was not suggested that the mother had not accurately reported what she had seen and what had been said to her by Y.  The issue is whether those observations and the child’s statements are indicative of the father having sexually abused her.

19. This was addressed by Dr B.  In his first report, Dr B noted the mother’s account of making complaints to the police and that police had interviewed Y about these complaints.  Dr B then said in relation to both children:

    10. Therefore it is of significant concern to me that the first words that Y said to me when I asked her to tell me about her father was that her father had touched her “down there” and she pointed to her vagina.  She appeared to have no difficulty and be well rehearsed in describing an act of sexual molestation, despite the fact that it has been several years since this act occurred. She was also able to describe acts of violence perpetrated by the father against her when she was two years of age and described directly experiencing that, which is extremely unlikely given the nature of childhood memory, unless there had been considerable repetition and perhaps coaching of that. It remains unclear to me that the allegation in regard to vaginal touch was a coached comment. Nonetheless in that regard I also note with some concern in talking to X who is only three years of age that when X was asked about her father after she had seen him she whispered that he “no longer hits” her. There are no allegations as far as I am aware that the father was ever physically violent to X and how X could have come to the conclusion that her father used to hit her is unclear…

    …

    58.I then asked her to tell me about her father. Y immediately told me that her father "touched me there" pointing to her vagina, although she could not recall when that occurred. She thought maybe years ago. I asked her had she talked about this with anyone and she said she hadn't told anyone about this. She didn't see any doctors although she told me she went to a doctor who gave her a lollypop. This was a rather confused element of discussion, which is to be expected given her age at the time of the alleged disclosure in 2016. She simply does not have a clear memory for the event or for the events that surrounded that time.

20. He concluded:

    112. … I find it hard to accept the claims of sexual violence on Y in the context of lack of substantiation, and am concerned at what appears to be obvious rehearsal of those claims over time…

21. Dr B said that Y’s comment to him about her father was not in response to a direct question and he noted that her comments went straight to the issue of the sexual abuse which indicated to him that she had been “rehearsed” about the story.  He added that she was not apparently upset or emotional when telling him about her father touching her.

22. Dr B clarified what he meant by “rehearsal” of the child in this context after distinguishing it from “coaching”.  He said:[11]

    … I believe that there has been some frequency in conversation around safety issues and also specifically around that whoever generated it, I noted in the initial material the mother sent me, it said that it was raised by Y in the first instance but the discussion of it on a frequent basis…which I think in the mother’s material, it said it was at least ten occasions, is going to lead to a de facto type of situation of coaching occurs [sic] because it’s a rehearsal and regrettable, things getting said… which get integrated into the memory and remains top of mind.

    [11] Transcript of 24 January 2020, p. 32 lines 37 – 44.

23. Dr B added:[12]

    In this situation… it is not to Y’s benefit to further explore the issue.  Don’t know whether it happened or not.  If we assume that it didn’t happen – at least not in the way that has been referred to – if we assume that there was some misconstruing of something perhaps, then to ask questions that maintains in the child’s view or belief that she clearly has, that the father acted in an inappropriate way, is simply going to further that.  So it would be far better for everybody to leave that alone.

    [12] Transcript of 24 January 2020, p. 33 lines 2 – 9.

24. There is considerable support in the evidence of both the mother and the maternal grandmother, Ms D, for Dr B’ opinion that Y had been rehearsed in the way described.

25. I am fortified in coming to that finding by Dr B, account of the interview with X.  There is no suggestion that the father had in any way acted inappropriately with her, yet Dr B noted when asked about her father, X whispered that he “no longer hits” her.  Dr B was unclear how it was that X would have come to that conclusion however in his second report of 27 March 2019 at [3], Dr B considered that it “… is possible [X] has picked up some kind of confused understanding of events from comments made by Y”.

26. It is well accepted, to the point of being trite, that a Court ought not make a positive finding that an act of such seriousness as sexual abuse occurred unless satisfied that the evidence meets the test articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) now set out in s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”).

27. In Johnson and Page (2007) FLC 93-344 at [65] the Full Court said, referring to s 140(2)(c) of the Evidence Act, that a positive finding that sexual or other abuse has happened will be made only when the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred” (see too W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235).

28. In Briginshaw Dixon J said at 362:

    The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

29. The mother conceded in answers to questions asked of her by counsel for the Independent Children’s Lawyer, that there may be another “innocent explanation” for what she saw which is inconsistent with sexual abuse of the child.  That, of course, does not resolve the issue, but the availability of a reasonable alternate explanation for her observations needs to be taken into account in determining whether the alleged abuse has taken place.

30. The child’s comments made from time to time cannot be ignored.  The child’s first “disclosure” of “daddy does that” was quite ambiguous and it was not until after the mother said “what” did the child then indicate her belly button, not to her vaginal area as being where her father touched her.  The mother agreed that the next thing that was said was by her and it was “[t]ell mummy everything.  What does he do? Where does he touch you?”. The mother agreed that there was no pause between these questions.  There was no response from the child but she pointed to her vagina, asking “[a]re you cranky, mum”?[13]

    [13] Transcript of 20 January 2020, p. 87 lines 17 – 47.

31. The mother agreed that another, innocent explanation for this conversation could be that the child thought she was in trouble for touching herself.  Indeed, in his first report, Dr B himself commented on the conversation and said:

    18. … It was unfortunate the choice of words that [the mother] used as it sounds that it may well have been a situation where Y recognising that she was in trouble and may have sought to deflect blame.

32. That conclusion is equally open on the evidence of what the child said to the mother at first.

33. I am not persuaded that Y’s comments lead to the conclusion that she is speaking about being touched sexually inappropriately by her father.  I am supported in this conclusion by the opinion of the expert as expressed above as I am by both the content and context of the first comment made by the child and the mother’s concession that, perhaps, it had another meaning.  The elaboration of the allegations made by Y are in my view explained by the “rehearsal” of the allegations by frequent questioning and discussion with her by both her mother and maternal grandmother.

34. For the above reasons, I am of the view that the evidence does not permit of a finding that the father has sexually abused Y.

35. Indeed, during final submissions, counsel for the mother conceded:[14]

    … having regard to the oral evidence and… taken together with the written evidence, that your Honour would be hard pressed and could not [positively] find… that the father had sexually abused the child, Y. 

    [14] Transcript of 10 February 2020, p. 6 lines 16 – 19.

36. This concession in is appropriately made and clearly conveys the mother’s acknowledgment of the frailty of the evidence on which the allegations of sexual abuse were founded.  The concession is important too because it demonstrates a softening by the mother of her previously expressed and apparently implacably held view that the circumstances as she saw them proved to her that the father is a paedophile.  The importance of this acceptance for the children going forward cannot be underestimated.

An unacceptable risk of sexual abuse

1. Of course, not being satisfied that the evidence supports a finding that sexual abuse has allegedly occurred, does not conclude the consideration of this issue.  As was said in M v M (1988) 166 CLR 69 (“M v M”) at 77 discussing the “wider issue” namely the determination of the child’s best interests:

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

2. The plurality of the High Court of Australia continued and considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said at 78:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations.

   …

   [C]ourts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. The concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

4. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court of Australia said in CDJ v VAJ (1998) 197 CLR 172:

   151. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.

1. As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

2. Thus, it is necessary to consider whether notwithstanding the conclusion that the evidence cannot support a positive finding that the father sexually abused Y, whether the evidence supports a finding that there is an unacceptable risk of that occurring.

3. For the preceding reasons, I cannot make that finding and I am satisfied that the evidence does not support a finding of an unacceptable risk of harm of sexual abuse to Y or indeed X if they spend time in the father’s company.

An unacceptable risk of harm arising from other matters

1. The mother contended that there was evidence which would nevertheless support a finding that the father presented an unacceptable risk of harm to the children if they were to spend time in his company.

2. The matters on which the mother relied to make this argument fell into a number of categories.

Physical violence by the father against the mother

1. The mother says that almost from the outset of the marriage there were difficulties.  She said that the father was aggressive and there were arguments between them.  She said that he would call her insulting names.  The father denies that he was aggressive or that he called her names and said that the mother used vulgar expressions to him.  It is tolerably clear from the evidence of both parties that there were arguments between them, each with his or her own version of the genesis and course of the arguments.

2. There were two occasions when the arguments between them degenerated to a point where police were called, once by the mother herself and once by the maternal grandmother on being called by the mother.

3. On 25 June 2015 the mother says that after an argument with the father she called the police who attended and who issued an interim AVO for her protection although the mother said that this was not proceeded with by the police.  The father said that he does not recall this incident.

4. The police record of this attendance notes that the parties argued, apparently about the volume of the television.  The account of the argument contained within the police notes shows both the mother and father using rude and demeaning language to each other.  The incident report notes that the mother complained that the father “pointed his index finger at [the mother] touching her left cheek”.  The incident report notes that the mother called the police and by the time they arrived the father had left the property.  It seems that the police telephoned the father and discussed the incident with him, noting that his version of events was largely similar to hers, although the father denied touching the mother.  The notes show that the police applied for a “[n]on-urgent AVO”.[15]

   [15] Exhibit H7 at page 6 of 23.

5. On 14 September 2015 the father says that after staying away from the family home for a brief period of time due to the constant arguments between him and the mother about his alleged infidelity, he returned home.  A short time after returning home the father said that the police attended the property.  The father said that at his suggestion to the police, he left the house.  Both the mother and father agree that there had been an argument about the father’s alleged infidelity, however the mother alleges that the father was “poking [her] in the chest provoking a fight” and she was scared that the father was going to “attack [her]”.  The mother called her mother who in turn called the police.

6. The police note of this event records that the argument was about the mother’s allegation that the father was having an affair.  At one point, the mother went into the bedroom and she rang her mother.  The maternal grandmother then rang 000 and told the police that the father was assaulting the mother.  Police arrived at the parties’ house.  The father was spoken to by the police and was unaware that they had been called.  The notes say that the mother asked the police to remove the father from the house and on being asked to leave, the father left.

7. It was when this incident was followed up by police on 16 September 2015 that the notes confirm that the mother enquired of the attending police officer whether there was any record of the father being a paedophile.

8. There were two incidents of physical violence alleged by the mother as having been committed by the father on her.

9. The first was said to have occurred in 2015 at about the time when Y was one year old, the mother said she and the father were arguing and during the argument she pushed him and he kicked her in the thigh.  The mother also says that the father called her “rude names”.  The father does not recall this incident however denies that he has ever called the mother any rude names and instead says that the mother has called him rude names in front of Y.

10. The second act of physical violence was said to have occurred in March 2015 when the parties and Y (the mother being advanced in her pregnancy with X) travelled to Country M to visit some of the father’s extended family.  The mother says that during this holiday an argument ensued and she said the father punched her heavily to the arms causing extensive and visible bruising.  The father denied any assault although agreed that they argued.

11. The mother said that while staying with the father’s uncle and aunt, the aunt,

    
    

    Ms F asked the mother whether everything was “ok” because apparently, Ms F had noticed that the parties were “distant and not talking”.  The mother said she told the aunt about the father punching her and showed her the bruises.  Later in that same trip, the uncle noticed her bruised arms and commented on them.

12. The mother rang her mother and told her that the father had punched her.  The maternal grandmother, in turn, rang the father’s mother and told her what had happened.  The paternal grandmother rang the mother to see if she was alright. Although denied in her affidavit, in her oral evidence the paternal grandmother said that she spoke to the father about what the mother said had happened, and said that the father neither admitted nor denied that he had hit the mother.  The father denies having a conversation with his mother in relation to this incident.

13. At about the time of the present proceedings, the mother contacted

    
    

    Ms F by text message and the following conversation took place:[16]

    [The Mother]: Remember how [the father] made me bruised blue in the arms when he came to Country M?

    [Ms F]: Yes.

    [The Mother]: Well he denies everything, his affidavit was just a reply to my affidavit and it was all lies…

    …

    [Ms F]: Oh darn I was hoping this would end amicably because of the kids.

    …

    (As per the original)

    [16] Exhibit M7.

14. A text message discussion between the father and Ms F, refers to the same incident and Ms F said:[17]

    Actually I do remember [the mother] asking that I didn’t think much of it But like I said she had dome [sic] bruises I think on her arm But doesn’t mean it was from you It could have been Y or bumping into something. It wasn’t recent after the molest [sic] allegation I told her I had to block her…

    (As per the original)

    [17] Exhibit M6; Exhibit M17.

15. Acts of family violence often occur in private with only the parties present.  It is therefore entirely to be expected that there will be no witness to support the version of events asserted by the victim of that violence, in this case, the mother.  The law does not require there to be such support before a claim to violence is accepted.  Here, however, there is support for the mother’s account of being punched by the father, the mother told the father’s aunt what happened and showed her the bruises that resulted.  The aunt had noticed difficulty between the parties causing her to enquire if everything was “ok”.  It is significant too that the mother made an immediate complaint to her mother which prompted the paternal grandmother to call the father.

16. I am satisfied that the father did assault the mother on this occasion as she said and that the punches were of such force as to leave her bruised.  In coming to that conclusion I take into account that Ms F’s later text messages were somewhat equivocal and she said that while she saw bruises she could not say how they occurred.

17. This finding allows me to more readily accept the mother’s account of being kicked by the father as she said occurred in 2015.

18. The evidence of arguments generally and the two occasions on which the police attended the parties’ home is supportive of the mother’s evidence that the relationship, towards its end, was acrimonious and beset with fierce arguments and that there were two episodes of physical violence by the father towards the mother.

Father’s violence to other women and sexual predation

1. Counsel for the mother opened the evidence in this case by asserting that the father had committed acts of “rape” and was a sexual predator.  As will become clear in these reasons, the evidence on which this assertion was founded, even taken at its highest, supported neither of those submissions which should never have been made.

2. Stripped of the hyperbole and pejorative, the argument was that the father had acted violently in other relationships as he had with the mother and that he was a sexual predator, or at least a person who could not control himself sexually.

3. Subpoenas were issued to the New South Wales Police for the production of documents which were provided to the expert, Dr B, who commented on the contents and raised their contents with the father.

4. The father denied that, apart from one attempted to be taken out by New South Wales Police at the mother’s request, no other AVOs had been taken out against him.  Dr B considered there to be a contradiction between the father’s denial and the police records.  Further, Dr B raised with the father the police records showing allegations of sexual assault against him. The father denied those allegations.

5. Dr B expressed the view that this issue, the alleged sexual assaults and the apparent contradictions between the police documents and the father’s denials, should be explored because he felt the police material to be “undermining” of the father if found to be true.  He further noted that while the police records show that the father was arrested and charged with sexual assault, another document also produced by the police showed him to have no convictions or charges.

6. The mother’s solicitor tracked down two women to whom the police reports referred, Ms G and Ms H.  Each prepared an affidavit.  Ms G’s affidavit was served at a time before the hearing sufficient for the father to prepare an affidavit in response.  Ms H’s affidavit was served on the eve of the hearing.

Ms G

1. The father and Ms G were in a relationship from July 2001 until October 2003.  She deposed to the relationship being marred by arguments and she asserted that the relationship was volatile.  She claimed that the father was physically violent to her which included him kicking and punching her to the extent that it left bruising.

2. In February 2003, Ms G said that while at a shop with the father, the sales attendant remarked on bruises on her arm asking her whether she was “ok”.  Ms G and the father argued over what the sales assistant had said to her and, having returned home with the father, Ms G called the police and her father who attended.  The police came and she said that the father was removed from the home by the police.

3. In his affidavit the father refers to the police notes of the incident and said he had no recollection of being questioned by the police.  The father further denied that he hit, punched or kicked Ms G although he admitted that they argued.  He denied that he was ever charged with assaulting her to the best of his recollection.

4. In fact, as a result of her complaint to the police about the father, the father was charged and convicted of common assault of Ms G and was fined $500.

5. Quite what documents the father had seen before he swore his affidavit was unclear.  On being shown the police charge sheet in relation to this incident during his cross-examination, the father said it was the first time that he had seen it.  Even seeing the records of the New South Wales Local Court that showed his conviction for assault, the father maintained that he had no recollection of being convicted nor had he any recollection of attending Court in relation to that conviction.  At the conclusion of the father’s cross-examination, it is tolerably clear that he does not accept that he was convicted of the assault of Ms G and says he had no memory of it.

6. The police records show a conviction and a sentence.  There is no reason not to accept the correctness of the documents.  The conviction was clearly based on the statement of Ms G and obviously accepted by the New South Wales Local Court as founding a conviction for assault.

7. Despite the father saying that he has no recollection of the events and denies assaulting Ms G, I must accept that another Court was satisfied beyond reasonable doubt of the facts of the assault, and I accept the fact of the conviction.

Alleged sexual assault of Ms J

1. On 4 January 2003, Ms J told police that she had been sexually assaulted by a man who was known only to her as “[Mr Warde]”.  During the investigation, through identification of a mobile phone from which a number of calls had been made to the alleged victim from 5 January to 6 January 2003, the father was identified.  Further enquiries revealed that Ms J had contacted that phone number associated with the father.  The father was spoken to by police and denied knowing or contacting the woman.

2. For a time the father was regarded by the police as a “person of interest” in the alleged crime until the police concluded that the allegations of sexual assault were fabricated by the alleged victim who was suffering from some mental impairment.  The police therefore came to the view that there had been no sexual assault.

3. In his affidavit the father denied knowing anything of this incident nor of being interviewed by police or being considered a “person of interest” by police.

4. The father, when shown the police documents during his cross-examination, accepted that they showed he was interviewed by police and that it was “probably right” but said that he had no memory of that event.

5. Thus, it can comfortably be accepted that on 4 February 2003 police spoke to the father about an alleged assault of Ms J.

6. The asserted relevance of this incident is said to be in his denials that he was a “person of interest” and of having been interviewed by the police when the documents demonstrate to the contrary and thus his credibility is impugned.  Much was made of the father denying that police considered him to be a “person of interest”.  It is not to the point whether or not the father accepted or even knew that he had been given that attribution, it being a term used by police in the course of the investigation.  Of greater significance however is the father’s denial that he had been interviewed by police in relation to this complaint.

Alleged sexual assault of Ms H

1. Ms H said that in 2004 she met a man who she now understands to be the father in these proceedings, through an online dating site.  She and the father made contact and after corresponding by text over a period of 4 months, on
   11 September 2004 they met and went to her house.  She said that she and the father went to her bedroom and lay on the bed.  Ms H said that she told the father that she did not wish to have sexual intercourse, but he nevertheless had
   non-consensual sex with her.

2. Ms H made a complaint to the police alleging sexual assault but declined to carry it further and no charges were laid.  She said that the police obtained an AVO for her protection from the father.

3. Ms H said that in her interactions with the father through the dating site she did not use her real surname and may not have used her real first name.  She did not know the surname of the father at the time of their interaction and agreed that he may not have known her name.  Up until the time Ms H attended Court to give evidence, the father maintained that he knew of no such person, however, when he saw her, he agreed that they had previously met.

4. The police identified the father as being the person Ms H said had sexually assaulted her from the texts from his phone to hers.

5. According to the police records, police, having identified the father, interviewed him when he admitted knowing her and going to her house and that they engaged in sexual intercourse, which the father said was consensual.

6. The police document notes:[18]

   [The father] was informed that an AVO complaint and summons would be prepared, and not to contact the victim in the future…

   [18] Exhibit M1 at Narrative 3 of 3.

7. In his affidavit, the father denied he had been spoken to by the police in relation to this incident and further denied that he had been subject to an AVO sought by police.

8. Documents produced to the Court show that an AVO was taken out in relation to Ms H and that the order was made by consent and without admissions.  The father said that the first time he had seen the AVO was during these proceedings and said he had no recollection of attending Suburb K Local Court where the AVO was apparently made.

9. Nonetheless, contrary to the father’s assertions, the evidence establishes that he was subject of an AVO in relation to Ms H.

Lies

1. Bluntly put, the mother’s case is that the father’s denials of assaulting Ms G and being convicted of assault, of being spoken to by police in relation to the alleged sexual assault of Ms J, of being interviewed about the alleged sexual assault of Ms H, and being subject to an AVO for her protection were lies told to conceal the truth from the Court.

2. To assess this submission it must first be determined whether the father lied, that is whether he gave a version of events knowing it to be untrue with the intention of misleading the Court.  The second part of the submission requires an assessment of the motive to lie.

3. It is odd and would no doubt strike most people as curious that the father has no recollection of going to Court and being convicted of assault or of being interviewed by the police in relation to two serious alleged crimes.  Yet that was his evidence.

4. Further clouding this issue is the father’s evidence that, on seeing the police records in relation to Ms J and Ms H, he caused a Freedom of Information Act application to be issued to the Australian Federal Police; a similar application to be issued to the New South Wales Police; and various subpoenas to be issued to the New South Wales Police Force to seek rectification of the reports which he said incorrectly identified him as being associated with both women. These efforts appear to be entirely consistent with the father’s assertion that he had no recollection of being involved in these events. As a result of these efforts, the father was provided with a certificate attesting to his having no present charges or convictions.

5. During his interview with Dr B, these matters were raised with the father and he denied his involvement in those events and said that the allegations did not refer to him.  

6. I cannot accept that the father does not recall being interviewed by police in relation to two allegations of significant seriousness as with his evidence that he does not recall being convicted of assaulting Ms G. The police documents clearly show that in relation to the AVO for Ms H, the father was informed by the police that it would be sought and he was advised to keep away from her.  The AVO was made by consent and without admissions which speaks strongly to the father’s knowledge if not his presence in Court when it was made.  Further, the conviction for assault too speaks of a Court proceeding resulting in the finding.

1. I am thus of the view that the father’s evidence in this regard was not truthful.

2. Turning then to the second part of the submission, the attribution of a reason for the lies.  It does not however follow that I must necessarily conclude that the lie was told deliberately to conceal the truth from the Court.

3. What was the truth that the father wished to conceal from the Court?  In relation to Ms J, the thrust of the submission is that the father wished to conceal from the Court the information that he had been interviewed about a non-existent crime.  In the same vein, it was suggested that the father lied to conceal from the Court that he had sexual intercourse with a woman who said it was non-consensual.  The assault conviction in relation to Ms G falls into a different category because there can be no doubt that it occurred.

4. Dr B was asked whether he expected those who were interviewed by him to be candid with him apropos the mother’s case that the father’s denials were lies, and he said:[19]

   Well, I expect people to be candid with me, but I also expect people to attempt to put their best foot forward.  And these are… situations in which people like to think of themselves as being good, and the other person is trying to not be good towards them.  So I always have to filter everything people are saying to an expectations [sic] that this is an adversarial system where they’re trying to present a particular image, and the other person is trying to present a particular image…

   (As per the original)

   [19] Transcript of 24 January 2020, p. 15 lines 39 – 44.

5. Taking all these matters into account I am persuaded that it is more probable than not that by his denials, the father sought to distance himself from these matters, as Dr B said, to show himself in the best light.  However in my view why he lied is not necessarily material to the resolution of any issue of importance in this case.

6. It was next argued that if I found that the father lied in his evidence I would reject all of his denials in the case and in particular his denial of having sexually assaulted Ms H and would conclude (albeit, on the balance of probabilities) that he had sexually assaulted Ms H.  The submission needs only to be stated to understand its fatal flaws.

7. A rejection of a denial cannot of itself prove the contrary.  Secondly even if I set to one side the father’s denial of having sexually assaulted Ms H, I could not on the evidence before the Court find that he had.  Ms H’s affidavit claims that the sex was non-consensual.  The father said it was.  Satisfaction of sexual assault requires more nuance than the binary approach suggested by the mother.  For example, the evidence might lend itself to a conclusion that the father had an honest but reasonable mistaken belief as to the fact of consent.  I can not find that Ms H was assaulted as she said.

8. It follows that I do not accept the submission that the father is a sexual predator and despite counsel opening the case for the mother by making this assertion, the evidence in the mother’s case even at its highest could never have supported that claim.  Ms J was not sexually assaulted and whether or not the father was regarded by the police as a person of interest for the brief time before the allegation was discounted, adds nothing to the case.  Ms H made an allegation which is denied and which she declined to pursue and the resolution of that dispute cannot be made on the evidence in this case.

What does it all mean?

1. Having had an opportunity both to ask the father about the allegations of violence with previous partners, and having seen the police documents, Dr B, in his first report, said the issue required clarification and he reflected on the apparent conflict between the parties on the critical issues:

   103. Of particular concern to me is the police material. Whilst the police material suggests the father is an obnoxious person with a history of domestic violence and even sexually assaultive behaviour [the father] indicates that is a false history and that it does not apply to him. It must be either an identity confusion in the police material or some other explanation that for the moment I can't think of. He claims that he has never been interviewed for yet alone charged with any offence. I note his criminal record indicates no charges or offences although the police information suggests that he was charged in relation to an alleged sexual offence in 2003. I am unable to resolve these contradictions but on the basis that it is likely that there has been some confusion in the police material and that there are some difficulties with accepting all of the police material then the father's account might be preferred. If the Honourable Court comes to the conclusion that in fact the father has lied and that police material is in fact appropriate and relevant to the father's position, that clearly has implications for the credibility and the character of the father.

2. Dr B was taken to his comment in his report.  He said:[20]

   … that comment about credibility is referring to the quantum of the issues, not a particular one.  I mean, obviously, if [the father] denies a particular one, that’s an issue that has to be dealt with, but what I was referring to there was the quantum, and [the father] was saying, well, look, that didn’t happen, and it turns out that all of those things have happened, yes, that would be a serious issue that I have to consider.  If one thing happened, and not the others… that raises concerns about him wanting to recall or him wanting to not admit to certain things, but it is of less severity in terms of considering what kind of… potential personality or behavioural difficulties [the father] might have...

   [20] Transcript of 24 January 2020, p. 21 lines 23 – 31.

3. Even so, the fact that the father has lied about the contents of the police reports does not change the effect of that evidence nor does it mean that the allegations are established.  It does however mean that where there is a dispute as to an issue or a challenge to his evidence I will approach its acceptance with considerable circumspection.

What risk of harm to the children arises from the finding of family violence and the assault of Ms G?

1. Dr B was not persuaded that there was a need for the father to “confront” the fact of the assault conviction in relation to Ms G and said:[21]

   … I’ve been talking about something that happened 15 years ago.  I don’t know whether [the father] has to confront them or deal with them.  I factored into my assessment of [the father] that he was probably a more aggressive person than he wanted to put forward.  I don’t think the information suggests… that there was incorrect things you need to factor in.  Whether or not something had happened back then is something he has to confront now really depends on what his current behaviour is like, so if over the… years he has systematically been involved in violent altercations – I know there’s the issue about [the violence that occurred to the mother in these proceedings] – but if there’s a pattern of ongoing violence in his behaviour with co-workers, or colleagues and partners, yes, he certainly has to confront that.  If there’s occasional slippage of behaviour, well, he is a person who has some impulse issues.  It would be an advantage to do some work around impulse control generally.  It depends on if that is the current contentious behaviour or not.  I don’t know whether it’s current in his behaviour or not.

   [21] Transcript of 24 January 2020, p. 22 lines 20 – 34.

2. It is to be understood that there was no evidence before the Court of any behaviour by the father of the type to which Dr B referred other than as towards the mother.  It is safe to conclude that the absence of evidence is not for want of investigation on the mother’s behalf because it seems to me that her lawyers were assiduous in that regard.

3. Counsel for the mother pressed Dr B to accept that if a finding was made that the father had been violent to the mother as she said that, together with his assault of Ms G would indicate a “pattern” of violence.

4. Dr B said:[22]

   There’s a pattern in as much as we have an isolated incident with somebody losing their control.  If by pattern, from a psychological perspective… you’re not looking at an incident in 2004 or [2003]… and an incident in 2015; what you’re looking at is a repetitive pattern of behaviour.  Now, incidents that are separated by time may indicate some impulse slippages or impulse control problems, but they don’t, necessarily, reflect of a person being particularly prone to [aggression].  Nonetheless, if, in the context of other behaviours, you identify that there were impulse control problems, whether it’s just the gambling or other stuff – which, I understand, is now under control anyway – you might say this is a person who is impulsive and, at times, can act in an impulsive way, and again, you would probably say that that’s what led him into trouble.  It’s not that, necessarily, there is an anger management problem, but that he has an impulse control problem.

   [22] Transcript of 24 January 2020, p. 22 line 41 to p. 23 line 7.

5. It was submitted that, if accepted, the father’s violence to Ms G and the violence to the mother would indicate that in the future if the father had the children in his care and was in another relationship, there was a risk of harm to them if he was violent to that new partner.

6. Dr B firmly maintained that the father does not have a “tendency… to violence”.  Rather, he said, there was evidence of two isolated violent acts which after some 15 years separation could not be regarded as a tendency.  He continued and said that in his opinion the father was not a person who is habitually violent adding that as people mature they tend to become more restrained.  He thought that the prospect that the father might be violent in the future was “low”.  I agree.

7. Thus I am not persuaded that there is a risk of future physical violence which would amount to an unacceptable risk of harm to the children in his care.

Physical violence towards Y

1. The mother said that when Y was about two (and I infer then that this is a reference to an incident which occurred in 2015), the father threw a toy at Y’s back “with a lot of force” and which caused a red mark on the child.  The mother took a photograph of the red mark.  The father denies he threw a toy at the child and said that the redness was heat rash.

2. Dr B, in reporting on his conversations with Y in his first report said:

   59. Y then told me that her Daddy hit her on the back with a toy.  She said she was lying down on the carpet at the time and he just “banged it into my back”. He did it because “he didn’t like me because he was trying to hit me really hard. Even though she described him hitting her with a toy in her back she said she would see his face and it was an “angry face”.

3. Although I note that the father denied the event, given the mother photographed the redness it is more consistent with it being a matter about which she wanted some evidence rather than the more prosaic explanation offered by the father in which case, one wonders why the mother would photograph it.  Furthermore, as I have said, given my findings about the father’s evidence I approach his denials with some care.  All those matters being considered, I accept that he threw a toy at Y.  The mother’s affidavit is silent as to whether this event occurred during an argument or when the father was apparently angry, although she did tell Dr B that it occurred during an argument between them.  However, there is nothing in the mother’s evidence about what she did in response to this other than photographing it and from that I conclude that it was not a matter of great moment to her.

4. Dr B was asked whether, if a finding was made that the father had thrown a toy at Y, it would be a concern for the future “care and protect[ion] of the children” by the father.  Dr B thought that this incident, if proven would “go to the notion” that the father is a person “who can get aggressive or impulsive in his behaviour”.[23]

   [23] Transcript of 24 January 2020, p. 26 lines 17 – 18.

5. Nevertheless, I am not prepared to find that it demonstrates a risk to the children of physical violence from the father.  In coming to that conclusion I take into account that in the myriad of allegations and complaints about the father’s conduct, this is the only complaint of this type and given its isolated nature, does not give rise to an unreasonable risk to the children while in his company.

Pornography

1. It was the mother’s case that the father had an “obsession” with pornography.  The evidence does not support that assertion.

2. It was uncontentious that during the marriage the parties each looked at pornography, although the mother said that she did not willingly look at pornography with the father but said that he would show her pornographic images.  The images were of adults.

3. The mother said that she had discovered downloaded child pornography on the father’s phone and her evidence clearly implied that he had downloaded and looked at those images.  She said she made this discovery between 6 and

   
   

   17 November 2015.  The father denied he had downloaded or viewed those sites.  He further said, and it was not challenged, that the evidence on which the mother relied as showing the downloaded sites, also showed that none of the sites had been viewed.

4. How the mother came to access the apparent sites on the father’s phone is somewhat hard to understand principally because her evidence was constrained as she was concerned that she might be exposed to criminal prosecution through the means by which the phone was accessed. Although there was a suggestion that a certificate pursuant to s 128 of the Evidence Act might be required, in the result counsel for the father did not press the questioning which provoked the request for a certificate and that matter fell away.

5. The mother said that she had physical possession of the father’s phone at the time although denied that she required physical possession of the father’s phone in order to see what was on it.  She said she viewed the browsing history of the father’s phone and could see what the father had downloaded.  The mother was then able to take screen shots of the father’s browsing history.  Only two such documents were tendered and, in relation to those documents, they bear on them a reference to an internet server which, the mother agreed, was not then and never had been used by the father.

6. Sensibly counsel in the proceedings took the approach that neither would take the point as against the other if each issue in dispute between the parties was not the subject of cross-examination (see Browne v Dunn (1893) 6 R. 67; [1893] 1 WLUK 44). However, the father was not cross-examined about this issue. Neither were any questions asked of the expert, Dr B about the mother’s account of what she saw. Given the seriousness of the allegation that omission is striking.

7. In closing submissions counsel for the mother conceded he could not prove the provenance of the documents said to support the mother’s evidence of what she saw on the father’s phone.  He however submitted that she should be accepted about what she saw or more correctly that she believed that the father had downloaded and viewed child pornography.

8. There are a number of matters standing in the way of that acceptance.  First, is the failure to challenge the father in relation to the matter, notwithstanding any agreement between counsel especially in light of the father’s evidence that the documents reveal the downloaded sites were not viewed.

9. Next, I take into account the delay in the mother bringing the discovery to the attention of the police.  Having seen these sites apparently downloaded by the father in about mid November 2015, the mother said nothing to him about it nor did she immediately require him to leave or leave herself with the children.  She said that she protected the children with her life and there was no moment from the time of discovery to the time when the father left the parties’ home in which the children were alone with the father.  The mother said that she did not leave the house nor did she raise this issue with the father because she said she was fearful of him.  Given the mother’s characterisation of the relationship with the father, it is understandable that she did not raise this issue with him and that she did not demand that he leave the household.  She also said that to leave was a difficult step, which I acknowledge.

10. However, the mother said that one of the reasons she did not leave was because she was “gaining enough evidence” to show what it was that the father was looking at.[24]  Perhaps, part of this evidence gathering process was the role of a private investigator from a company known as “P Business” who the mother engaged in October 2015 until December of that year or perhaps January 2016, to conduct surveillance of the father a few times a week.  Whatever the investigator saw or discovered was not the subject of an affidavit.

    [24] Transcript of 20 January 2020, p. 20 lines 13 – 21.

11. As I have indicated earlier, there were occasions when the mother had opportunities to speak to police.  One such occasion occurred on 2 December 2015 when she called the police to her home to make a complaint about the father breaking a necklace she was wearing during what the mother said were unwanted sexual advances to her by the father.  She said nothing about her discovery of these pornography sites to the police.  In explanation for not telling the police, the mother said that she was “still investigating…all [the father’s] wrongdoings”.[25]  When pressed, the mother said she was still “… [r]etrieving conversations of [the father’s] addiction with pornography, as well as… dating sites”.[26]

    [25] Transcript of 20 January 2020, p. 57 lines 43 – 46.

    [26] Transcript of 20 January 2020, p. 58 lines 8 – 9.

12. Although not her evidence, the mother’s reluctance to bring this matter to the police may be explicable by her reluctance to challenge the father directly and, perhaps, indirectly through a police investigation.

13. The father left the parties’ home in March 2016.  Thereafter he had little face-to-face contact with the mother and no face-to-face contact with the children.

14. The first time the mother told the police that she had seen child pornography sites on the father’s phone was on 30 October 2017, some weeks after she had commenced proceedings in the Federal Circuit Court of Australia.  It seems she did so upon advice by her solicitors.

15. Whilst much of the delay in bringing this apparently serious criminal offence to the attention of the authorities can perhaps be explained by the nature and characteristics of the relationship as the mother experienced it, the delay in bringing this matter to the attention of the police after the father had left is in my view a matter telling against acceptance of the mother’s evidence that she believed the father was accessing and viewing child pornography.  I also take into account the seriousness of the allegation, the failure to challenge the father in cross-examination and the failure to ask the expert for his opinion.  In coming to that conclusion I am fortified by the father’s unchallenged evidence that according to the documents on which the mother relied, none of those sites whilst apparently downloaded had been accessed for viewing.

16. I am not prepared to accept that the father had downloaded and viewed child pornography as the mother alleges.  For the same reasons I cannot find that the mother believed that he had.

On what then is the submission that the father has an “obsession with pornography” based?

1. No questions were asked of Dr B about pornography at all.  There was no suggestion to him that the father’s admitted use of adult pornography in the context of the marriage was of an order as to be properly regarded as an obsession.

2. I am unpersuaded that the father had an obsession with pornography and can only conclude that, like the heading in the mother’s affidavit which asserted “Sexualised behaviour of Y…”, and in relation to which there is no evidence at all, the assertion that the father has an “obsession with pornography” is the mother’s opinion unsupported by evidence or expert opinion.

Gambling

1. While not a matter specifically raised as posing an unacceptable risk to the children of itself, the father’s gambling was said to be a further demonstration of his impulsiveness and inability to control himself that was relied on in support of the argument that there is an unacceptable risk to the children of physical and emotional abuse from the father.

2. This was a matter about which there was considerable cross-examination of Dr B.

3. The father’s gambling was characterised by the mother in a heading in her affidavit as “[the father’s] gambling addiction”.  None of the evidence adduced in this case supports any suggestion of addiction.  I regard the mother’s assertion in her affidavit in the same way as I regard her characterisation of Y’s behaviour as “sexualised” and the father having an “obsession” with pornography that is representing her opinion but having no probative weight at all in the determination of the issues to be resolved.

4. It was uncontentious that during the marriage the father gambled and it was a source of difficulties between the parties.  It was not suggested by the mother that the father’s gambling was of an order that it impacted on family finances or was beyond his means.  The mother said that when the father gambled, and lost, he would be angry and aggressive at home.  At the mother’s behest, the father agreed to seek some counselling at L Organisation.  Whilst conducting a review of the L Organisation counselling notes, it was noted by Dr B in his first report at page 39, that both parties attended the gambling treatment for the father and that “[g]ambling [was] a form of stress relief” for him.

5. The mother, through the cross-examination of Dr B sought to portray the father’s gambling as an incident of impulsive behaviour.

6. Dr B rejected the suggestion that the father’s gambling was not controlled and that this was reflected in the notes of the counselling offered by L Organisation.  He did however say that in order to assess whether the father’s gambling reflected an inability to control his impulses as suggested by the mother’s counsel, one needed to consider what was going on in the father’s life at the time, remarking that 2016 was not a good year for him.

7. Dr B agreed that where people have a loss while gambling, it can make them emotionally reactive in a number of ways but added that none of those reactions are “… necessarily, a predictor simply because you’re emotionally reactive”.[27]

   [27] Transcript of 24 January 2020, p. 28 lines 37 – 38.

8. The examination concluded with the mother’s counsel suggesting that if the mother’s account of the father’s gambling was accepted it would reflect “problematic” gambling.  Dr B said:[28]

   I actually raised with [the father] the issue about arguments… because it’s a fairly common tactic in people with gambling that… if they’re emotionally distressed… there would be an argument and then [the father] would storm out and go gambling.  So the argument occurred before gambling in spite of… after gambling but it’s quite open that arguments would occur before and after as well.  But the way [the father] described that suggests that by that time in the relationship, there was already a fairly hostile dynamic between the parties.  Gambling was part of that but there were other factors going on as well.

   [28] Transcript of 24 January 2020, p. 30 line 47 to p. 31 line 8.

9. Dr B was of the view that in light of the father’s account to him of his gambling, his behaviour was controlled and he had since further controlled it.  He thought the gambling was of no relevance to the matters under consideration.  I agree.

Do these matters in combination or any of them create an unacceptable risk of harm to the children and what is the harm said to arise?

1. It was argued that the father’s violence to the mother, his violence to Y in throwing a toy at her, his violence against Ms G and his alleged obsession with pornography either in combination or separately give rise to a risk to the children of being exposed to physical harm while in his care.  It was further submitted that the father’s denials of the violence heighten or contribute to that risk.  There is no evidence in this case which speaks to any heightening of risk because of the denials and Dr B’ evidence is clearly to the contrary.  Nor is there evidence that the father’s past violence to the mother and to Ms G predicts any risk of harm to the children.  It is not an inference I am willing to draw.

2. It was also argued that an unacceptable risk of harm arises because of the “sexual assault alleged to be perpetrated against Ms H”.  This submission relies on a finding of a risk arising from an allegation which is denied, which has never been tested and which could not be assessed on the evidence in this case, but which can only then be based on suspicion.

3. Leaving to one side the fragile and forensically flawed basis on which that submission is advanced, quite what the risk to the children said to arise is not clear.  Dr B was asked whether, if the father’s denials were found to be false and “…he had been charged with sexual assault or various other assault charges…”,[29] whether it would raise doubts about his denial of assaulting the mother and in relation to the allegation of sexual abuse of Y.  Dr B said:[30]

   … [T]he allegation with regards to Y, I think, is still… a different matter [to the allegations of physical violence].  And I do say somewhere that… that needs to be assessed for its specific merits.  So I am not altogether sure that that history can tell you very much about whether [the father] would be likely to sexually abuse his child.  But it certainly raises more concerns in regards to my findings about... having been physically violent to her when she was in Country M.

   [29] Transcript of 24 January 2020, p. 16 line 35.

   [30] Transcript of 24 January 2020, p. 17 lines 8 – 14.

4. I have already concluded that there was no sexual assault of Y (a matter accepted by the mother in closing argument) and concluded there is no unacceptable risk to either child of sexual abuse in the father’s company.  Nothing that arises from the evidence in relation to Ms H or Ms J persuades me that the children are at unacceptable risk of sexual abuse.

5. As to the risk of emotional harm, it was submitted that the risk to the children arises from the evidence that the father had been verbally abusive to the mother “and others”.  As I have already indicated, both parties alleged that the other was verbally abusive, and a reading of the police incident report of 25 June 2015 shows both parties being abusive and unpleasant to each other.

6. In the affidavit of both the mother and father, each accuse the other of abusive behaviour.  The mother contends that the father was in conflict with third parties.

7. If it was to be asserted that there is a risk of emotional harm to the children from being in the company of the father one would have expected Dr B to have been asked questions about it.  He was not.  There is no basis on which I am prepared to conclude that there is such a risk to the children.

8. Counsel for the Independent Children's Lawyer argued that the mother’s allegations against the father have been gathered together by the mother in “hindsight” to provide a basis for asserting the children would be at an unacceptable risk of harm in the father’s care.  She submitted that those matters on which the mother relies do not speak either singly or collectively to an unacceptable risk of harm.

9. I agree.

10. These matters do not persuade me that there is a risk of harm arising to the children from being in the company of the father.

An unacceptable risk posed by the mother

1. The father contended that the mother had embarked on a campaign to “malign” him and would, if the children were not immediately moved to live with him, continue and eventually poison his relationship with him and thus the mother poses a risk of psychological or emotional harm to them.

2. Before coming to the matters on which the father relies to demonstrate the unacceptable risk, it is important to first consider a comment made by Dr B in his first report which gained considerable force in the case.

3. He said:

   117. … If the Honourable Court comes to the view that the mother has maligned the father in a vengeful way with the fabrication of evidence to place him in a negative light, either for the purpose of personal and/or financial gain then it may be necessary to consider a change in primary residence for the children.

   (Emphasis added)

4. As counsel for the father made clear in his final address, it was not the father’s case that the mother had, in pursuit of vengeance, fabricated evidence against him.  However, it was the father’s case that the mother intentionally maligned him.  Several aspects of this were relied upon as demonstrating the father’s position.

Sexual abuse allegations

1. It was argued that as the mother was unwavering in her view that the father had sexually abused the children and she would therefore encourage the children to accept that they have or are likely to be sexually abused by the father.

2. There was no challenge to Dr B’ opinion that if the children were inculcated to the view that Y had been sexually abused and that X was at risk of abuse from their father where there was in fact no such risk, it would bring serious and long term consequences for the healthy emotional development of the children.

3. Dr B said that the effect would be to create a sense of trauma, a sense of victimisation, betrayal and a lack of trust.  He said that over time the children would develop negative attitudes about males and relationships and that can impact upon their emotional regulation as they age and impact their capacity to form relationships.  While Dr B said that people have varying responses to these effects he said that they can have catastrophic reactions.

4. In her oral evidence, the mother was remorseless about the father. She regarded him as being a risk to the children.  She was afraid that the father would “manipulate the children against [her] because he’s a pathological liar”.[31]  She said that there was no evidence which would persuade her that the father had not sexually abused Y.  It was submitted that the mother’s implacability was demonstrated by her refusal to countenance a certainty other than the father had sexually assaulted Y even in light of what was conceded to be X’s allegations that her father no longer hit her when that could not possibly be the case.

   [31] Transcript of 20 January 2020, p. 68 line 24.

5. Yet, despite the strength of her expressed belief, the mother was prepared to accept that there were other innocent explanations for what she had seen and on which she based her view that Y had been sexually abused by the father.  Further, as I have said, at the conclusion of the case the mother conceded that there was no evidence which would support a finding of sexual abuse and, I have no such abuse occurred nor, is there an unacceptable risk of it..

6. Principally however and importantly to what I regard as a way forward, the mother said she would comply with any orders made and offered, admittedly by way of alternative position, a suggested regime of time between the father and the children.

7. No doubt the father views this volte face with suspicion and as much was apparent from submissions made by the father’s counsel who urged the Court to consider the strength with which the mother’s assertions against the father were made and to conclude that the mother’s evidence that she will abide the Court’s orders was insufficient to displace her long held view of the father. This was submitted as being especially acute as the mother’s evidence about complying with orders was not accompanied by an acknowledgement that there was a view of the evidence different to hers.

8. Counsel for the Independent Children's Lawyer argued that the evidence did not support a finding that the mother fabricated evidence to slander the father.  

   
   

   I agree.  The Independent Children's Lawyer’s submissions while not supporting a finding of the fabrication of evidence, argued that the evidence supported a finding that the mother may have acted out of spite in the way the issues were presented for determination.

Are the mother’s allegations raised out of spite?

Child pornography

1. It was argued that the mother’s contention that the father had downloaded and viewed child pornography was a “graphic” illustration of maligning the father because it was argued there was no evidence on which the mother could reasonably maintain her allegation, an allegation, it was argued which was maintained throughout the trial, eventually being abandoned after she gave her evidence.  The mother’s delay in acting on what she believed was the father’s viewing of child pornography was relied upon as being further evidence of the matter being raised not for a genuine forensic purpose but to slander the father.

2. It is difficult to understand how the evidence relied on could have been considered of sufficient weight to support the allegation that the father had downloaded and viewed child pornography, a most serious allegation although, I accept that not all of the evidence on which the mother may have wished to rely to prove the point was before the Court.  However even if it had been, the evidence of her failure to alert the police to this crime, deferring it until she had collected sufficient evidence of all the father’s so called “wrongdoings” speaks strongly against the mother believing that he had done so.  There is some force in the argument that the matter was raised to achieve a forensic advantage.  I have the same view about the mother’s contention about the father’s gambling.

The evidence of Ms J and Ms H

1. The frailty of the basis on which counsel for the mother relied to assert the father was a sexual predator has already been considered in these reasons.  However, counsel for the father compared the forensic weakness of that evidence against the mother’s insistence on relying on it to portray the father as a “rapist” and “sexual predator” as another example of the mother’s deliberate maligning of the father.  Counsel for the father submitted that this evidence even had it been accepted was of no relevance to the issues to be determined in this case and therefore he argued there could be no other purpose for raising it than to slur the father.

2. I am not persuaded that, had the evidence compelled a finding that the father had sexually assaulted these two women it would be irrelevant to the issues to be decided, but, as I have earlier remarked, the evidence at its highest could never have approached that level of certainty.

3. I could not, however, find that the mother’s raising of these matters was motivated only by spite and while I do not accept the characterisation ascribed to that material by the mother, I accept that she may have been genuinely concerned about the contents of the documents.

4. That is not to say that the father’s concern about the mother’s attitude towards him is entirely without foundation.  There is much in the evidence before the Court which supports the mother’s implacable dislike of him.  The mother’s affidavit for example contains headings which contain serious, and in the result, unsubstantiated, assertions some of which convey the imputation of bad behaviour albeit in a sense entirely irrelevant to the proceedings.  For example, in the affidavit sworn by the mother on 9 January 2020 is a heading “[the father’s] multiple phone numbers” the relevance of which is not apparent other than the mother deposing to have accessed the father’s browsing history on one such phone.  Another heading is “Events at the time of separation and [the father’s] infidelity” the gist of the following paragraphs (other than those which allege the father had viewed child pornography) concerns the father accessing dating sites.

The paternal grandparents

1. Finally, in the mother’s affidavit there is a heading “Concerns about the paternal family” where, in the following paragraphs, the mother raised two serious assertions against the paternal grandparents.

2. The thrust of the allegation concerning the paternal grandfather is that he was parked beside the road and he was “reported to the police”, it being alleged he was watching children in a nearby school.  The mother raised these “concern[s]” with the expert including informing him that the grandfather “laughed…off” the incident and used it to show how reputations can be damaged.  Dr B, in his first report, said:

   28. … Nonetheless the mother appears now to have taken the view that somehow or other that meant that the grandfather was a sexual risk to her children.  When I challenged her on that the mother resiled from that position saying no she didn’t believe that, but nonetheless that is clear the inference in her behaviour and also clearly indicated in her affidavit.

3. In her oral evidence, the mother said that she understood that the grandfather had been arrested and charged by police over this incident.  There is no evidence that he had and no reference otherwise to this.

4. However, the mother was very clear that she was not making allegations but merely raising these matters and having raised them, they were abandoned during the hearing.

5. Equally as to the father’s mother, the father said to Dr B that the mother had made allegations that the paternal grandmother was incompetent to care for the children and also hit the children.  The father found this string of allegations frustrating and further stated that his mother was a school teacher and assistant principal, implying that his mother would not act in a forceful manner with children.  The mother alleged in her affidavit that in one incident, the paternal grandmother was rough when handling Y after the mother had given birth to X.  The paternal grandmother stated that she did not recall ever being rough with Y.

6. Each of the father’s parents swore affidavits in which each denied the assertions made against them by the mother.  Neither was cross-examined in relation to the mother’s expressed “concerns” or at all.  In explanation for the failure to cross-examine on the allegations counsel for the mother said that the grandparents had each offered their version of events which was accepted by the mother.

7. The distinction in the mother’s mind between making allegations against the father’s parents and merely raising issues is difficult to understand, however what is clear is that the mother was prepared to imply serious adverse conduct with no apparent basis for the implications.

8. The father’s case is that the mother will not hold back from continuing to slander the father and thus affect the children’s relationship with him.

9. In her careful submissions, counsel for the Independent Children's Lawyer argued that the mother’s acceptance of the need for ongoing counselling to assist her to comply with and support the orders would be a way of ensuring that this did not happen.

10. I am satisfied that the mother holds strong adverse views about the father and I am inclined to conclude that her vigorous but ultimately withdrawn pursuit of significant and serious allegations against the father directly reflects that dislike.  This is especially so where the evidentiary foundation for some of those allegations was threadbare.

11. However, the question is whether those views, if they are part of the children’s daily discourse could sour their view of the father.

Is there an unacceptable risk to the children in the mother’s care?

1. It was contended that the risk to the children is that the mother’s views will continue to be conveyed to the children to the extent that it will poison their relationship with the father.

2. Sitting starkly against the clear evidence of the mother’s animus towards the father, is the way in which the children responded to the father when introduced to him by Dr B.

3. Despite Dr B’ view that Y was genuinely fearful of seeing her father, he noted that immediately upon the father entering the interview room Y smiled and seemed interested in who he was, X too of whom Dr B thought would have no memory of her father was “surprisingly open” to the father.  Dr B observed the children to sit close to the father and he believed they were comfortable in his presence.  Ultimately Y initiated physical contact with the father as did X.

1. Dr B said that X’s reaction to her father was probably to do with him bringing gifts, but with Y he said it was different, because although she was afraid to meet him and reticent, on being in his company she “decided that she liked him”.[32]

   [32] Transcript of 24 January 2020, p. 48 lines 13 – 14.

2. It thus seems to me that despite the mother’s clearly expressed views to which I have referred and despite the children not having seen their father effectively since separation in March 2016, she had not managed to poison them against him and in fact Y apparently retained a good memory of him.

3. This evidence taken in the light of the mother’s concessions in evidence as to the sexual abuse, her proposing a structured regime of introduction of time to the father and her acceptance of the need for counselling persuades me that there is no unacceptable risk of harm to the children in her care as the father has asserted.

4. The position then is that neither allegation of unacceptable risk to the children from either the mother or the father is made out.  That being so, then that parties’ position became one where it was accepted the children should live with the mother and spend time with the father, the difference between the parties and the mother related to the mechanics of the orders for time to be spent by the children with the father.

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

1. As I have indicated, at the commencement of the hearing the father’s case in broad was that the children should immediately live with him and they should spend time with the mother.  The mother’s case was that the children should live with her and spend no time with the father, or if time be ordered then it be limited to a few hours a few times a year and that it be supervised by a professional body.

2. At the conclusion of the evidence, the parties’ positions had changed somewhat. The Independent Children's Lawyer proposed orders which would have the children remain living with the mother and spending time with the father in a graduated regime both as to time and as to the necessity of supervision to the point where they would be spending substantial and significant time with the father.

3. While at the conclusion of the hearing, the mother’s primary position remained that the children should spend no time with the father, however, in the alternative, the mother proposed a regime of time to be spent by the children with their father increasing to the point where the children are spending unsupervised time with the father both overnight and during school holidays.  Her alternative proposal mirrored the orders suggested by the Independent Children's Lawyer but with longer periods of time in which the regime would move from one stage to the next.

4. The father’s ultimate position if the Court accepted that there was an unacceptable risk to the children in living with the mother, pressed for orders broadly in line with those he sought at the commencement of the hearing, namely that the children live with him and spend time with the mother during school times, at weekends and during school holidays.  Some of the earlier proposed orders such as the proposed order that if the father formed the view that the mother has continued to communicate to the children that they had been abused by him he would be able to suspend time, were not pressed by the father having had an opportunity to hear the expert’s evidence.

5. However, the father’s alternate position was that in the event that the Court did not conclude that there was an unacceptable risk of harm to the children from living with the mother, he accepted the orders proposed by the Independent Children's Lawyer were appropriate.

6. It thus seems agreed, given the parties’ proposed orders, albeit couched in the alternative, each agrees, the allegations of risk vis a vis each other being rejected, that the children should have the benefit of a meaningful relationship with each of their parents.

7. Dr B commented that given X was but six months old when the parties separated, she never had a relationship with the father.  However, he observed what he was surprised to see a “residual attachment” of Y to her father.

8. While Y was, in Dr B’ view, genuinely afraid of seeing her father, as I have earlier noted, she appeared to Dr B to enjoy the interaction and told him that she would like to see her father again.  This brief encounter cannot of course predict how the children’s ongoing contact with the father might progress and, according to Dr B’ first supplementary report, the mother said that Y was distressed at seeing her father, claiming apparently that he had punched her.  Nevertheless Dr B was clearly comfortable in recommending a regime of introduced time with the father, which is reflected in the proposed Minute of Order of the Independent Children's Lawyer.

9. I am of the view that each of these children would benefit from a meaningful relationship with her father.

With whom should the children live?

1. The Court finding that none of the alleged unacceptable risks to the children in the care of either parent is established, all parties sought orders that the children live with the mother and that they spend time with the father.  It was the clear evidence of Dr B that, save for the allegations of risk against the mother, the children should continue to live with her.  She has been their primary carer throughout their lives, removal from her would be distressing and have both short and long term adverse consequences and it is in their best interests to continue to live with her.

Is it in the children’s best interest to spend time with the father?

1. Having found that the children would benefit from a meaningful relationship with the father, whether the orders proposed by the parties will provide for that relationship in large part requires much of the mother.

2. I have concluded that there is no evidence that the father has sexually abused Y nor is there an unacceptable risk that he would.

3. Dr B was clear in his view that there should be no more discussion with Y (or inferentially in her presence) of these allegations nor should Y continue in any counselling predicated on her being sexually abused by the father.  If she raised the allegation, Dr B suggested that she be diverted but was clear that to continue to discuss the allegations would continue to rehearse and cement these ideas in her mind.  If the allegations were being maintained in the child’s mind by a member of the mother’s household it would not be conducive to the child’s psychological development.  Finally he commented that if it appeared to a Court that the children were being encouraged to believe that Y had been sexually abused by the father, it may be necessary to remove them from the mother’s care.

4. It is to be expected that the mother would take that advice and it is implicit in her concessions and her proposed alternate orders that she will do her best to act in the children’s best interests.

5. It is also clear from the evidence of the maternal grandmother, Ms D, that she is an important part of the mother’s and children’s lives.  She believes that the father is a danger to the children.  Her oral evidence was somewhat histrionic and descended into loud crying.  This is not to suggest that she was not genuinely distressed but it would not be in the children’s best interests nor would it be properly supporting the mother if the maternal grandmother continued to discuss with Y the allegations and if she made her antipathy to the father obviously known.  It is of course beyond the reach of this Court to contain

   
   

   Ms D’s conduct but I intend to direct that a copy of the orders and reasons be made available to her so that she can understand how important her self-restraint will be to the best interests of these children.  Dr B was of the view that Ms D would be assisted by having a professional support person to whom she could discuss her concerns and perhaps on reading these reasons and the orders she will avail herself of that assistance.

6. Next, and it is obvious that the matter started with the mother’s position that the father was a danger to the children.  While it could not necessarily be assumed that she has ameliorated her views, the mother was prepared to proffer orders which provide for a reintroduction of the children to the father and was also prepared to abide by the orders of the Court.

7. During her cross-examination, the mother indicated that the prospect of a reintroduction of the children to the father was a matter about which she was highly anxious.  She readily agreed that she would like to have some professional assistance in coping with such a regime if put in place.

8. Dr B was very supportive of this approach saying bluntly that although the mother has said that she will abide by the orders of the Court, he had concerns about her capacity to do as she said.  He thought that if she had a professional person who could act as a “sounding board” and provide her with advice and strategies for managing her anxiety she would be assisted in complying with the orders.

9. Managing the mother’s anxieties and her making full use of such a professional sounding board is important in assisting the re-introduction of the children to a relationship with their father.  Dr B said that, at first the transition of the children from the mother’s home to the father’s will be difficult and it will require the mother to send them off in a positive and reassuring way.

10. This is not to say that there is no work to be done on the father’s part for the children to comfortably enjoy a meaningful relationship with both parents.  The father is deeply wounded about the allegations of sexual abuse and, I accept the Independent Children's Lawyer’s submission that he would find it difficult to move past those allegations.  Nonetheless, it will be necessary that he do so for no better reason than for the children’s benefit.  He too said he would accept professional input to act as a sounding board for his concerns and difficulties. Dr B also suggested that the father attend a nominated course to assist him to understand child development and to act as a support for his time with the children.

11. Against these adjurations, I am of the view that it is both in the children’s best interests to have a meaningful relationship with their father and to that end they should be re-introduced to him by spending time with him.

12. Dr B’ opinion was sought as to how orders to re-introduce the children to the father could be framed.  He prefaced his opinion by observing that the children will initially be reluctant to attend but he suspected that both would very rapidly settle easily into a relationship with the father.  He said that the children need to be supported to go to the father and observed that they may well be upset in the first instance on their return.  Dr B made it clear that the predicted distress would be the transition between houses rather than the contact with the father.

13. In brief then, Dr B suggested an initial period of frequent, short duration time.  He suggested for example Wednesday afternoon for a few hours and a few more hours on the following Saturday.  He said that there should be no more than three days between the times the children spend with the father.  He suggested that in the first periods, until the children settled into the transition between the father and the mother, this time be supervised by a commercial supervision service who would attend with the children and the father.

14. Dr B thought that this supervision would last between four to six weeks or at the most three months although he observed that if they were not settling in that time, there was a problem that needed to be looked at.  After a few periods of just the father and the children, Dr B thought that the father’s parents could also be reintroduced ultimately with the view that they would be generally around while the children spent time with the father.

15. Ultimately Dr B recommended that the children spend one evening a week with the father and an overnight stay on the alternate weekend leading to the children spending significant time with the father.

16. It is unnecessary to set out his evidence in detail because the framework suggested by him for an introduction is mirrored in the orders proposed by the Independent Children's Lawyer and the mother, albeit with differing time frames, for moving between the proposed steps.

17. The broad framework of the orders being agreed, the remaining issue is the time between each step in the re-introduction process.  The Independent Children's Lawyer’s Minute of Order provide for broadly six weeks between the various stages which is longer than that suggested by Dr B.  The mother’s suggested time frame moves between the stages after 24 weeks.  It was submitted that, given the mother’s anxieties she needs time, in effect, to acclimatise to this regime.  That is entirely understandable.  However, there is nothing in the evidence which persuades me that it is in these children’s best interests to draw out reintroduction with the father to that extent.  I will thus make the orders in the terms suggested by the Independent Children's Lawyer.

18. The orders proposed by the Independent Children's Lawyer also provide for the parties to take up professional supports and education as suggested by

    
    

    Dr B.

19. It was also agreed in the orders of the mother and the Independent Children’s Lawyer that it would be of assistance to the children if the paternal grandmother is involved at an early stage of their re-introduction to the father and both the ICL and the mother’s orders provide for her presence.

Parental responsibility

1. The level of acrimony, the hostility and suspicion that has attended the parties’ relationship means that there is no prospect that they could cooperate in any way in decision making for the children.  This, taken with the finding of family violence leads me to the view that not only does the presumption of equal shared parental responsibility not apply, it is not in these children’s best interests that the parties have equal shared parental responsibility and that the mother should have sole parental responsibility.  So much appears to be conceded by the father’s that, if the asserted risk in the mother’s care is not made out, he supported the Independent Children's Lawyer’s orders for the mother to have sole parental responsibility of the children.

2. The Independent Children's Lawyer argues for an order for sole parental responsibility in the mother and I am of the view that this is in the children’s best interests.  Both the mother’s and the Independent Children's Lawyer’s proposed orders seek sole parental responsibility for the mother with obligations that she notify and inform the father of decisions she makes in exercise of parental responsibility.  The father accepted that order be made.

3. The Independent Children's Lawyer sought that the order appointing him be not discharged for a period after making the orders to allow the Independent Children's Lawyer to assist the parties by nominating a supervision service to commence the process of reintroducing the children to their father.

4. Finally each party agreed to an order that they jointly pay the costs of the Independent Children's Lawyer totalling $15,207.50, which comes to a payment of $7,603.75 by each party.

I certify that the preceding two hundred and forty-nine (249) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 4 May 2020.

Associate:

Date: 4 May 2020