Young and Young

[2010] FMCAfam 931

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG & YOUNG [2010] FMCAfam 931

FAMILY LAW – Parenting – allegations of sexual abuse – whether unacceptable risk of abuse – parenting orders in best interests of children.

Evidence Act 1995, s.140
Family Law Act 1975, ss.60D, 64, 66CC, 69ZT, 69ZV, 100, 100A

A & A (1976) VR 298
B & B [Access] (1986) FLC 91-758
B & B [Family Law Reform Act 1995](1997) FLC 92-755
Briginshaw & Briginshaw (1938) 60 CLR 336
Brown and Pedersen (1992) FLC 92-271
Re G (a minor) (1987) 1 WLR 1461
Goode & Goode (2006) FLC 93-286
J & Lieschke (1987) 162 CLR 447
Leveque & Leveque (1983) 54 BCLR 164
M & M (1987) FLC 91-830
McKee & McKee (1951) A.C 352
N & S & the Separate Representative(1996) FLC 92-655
Reynolds & Reynolds (1973) 47 A.LJR 499
S & S [1993] NZFLR 657
TF & JF & Children’s Representative[2005] FamCA 394
V & V[2004] FamCA 1081
Vasser & Taylor-Black [2007] FamCA 547
W & W [2005] Fam CA 892
Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
WK v SR (1997) FLC 92-787
Young & Young [2007] FMCAfam 615

Applicant: MS YOUNG

Respondent: MR YOUNG

File Number: WOC 296 of 2007

Judgment of: Altobelli FM

Hearing dates: 30 June & 27 July 2010

Date of Last Submission: 27 July 2010

Delivered at: Sydney

Delivered on: 3 November 2010

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Rebecca Bailey & Associates

Counsel for the Independent Children’s Lawyer: Ms Falloon

Independent Children’s Lawyer: Williamson Isabella Lawyers & Public Notaries

ORDERS

1. That, subject to the provisions of Order 2, the Mother have sole parental responsibility for the children of the relationship namely [S] born [in] 2000 and [K] born [in] 2003, provided that the mother notifies the father of any long-term decisions made.

2. That the Mother be restrained from relocating the children’s home or changing their schools without first providing the Father with 30 days written notice of her intention to do so.

3. That the children live with the Mother.

4. That subject to the provisions of Orders 5, 6 and 7 the children spend time with the Father:

   (a)From the making of these Orders until 30 June 2011:

   (i)From 9.00am until 5.00pm Sunday for two out of every three consecutive weeks;

   (ii)From 9.00am until 5.00pm on Father’s Day;

   (iii)From 2.00pm until 8.00pm on Christmas Day;

   (iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

   (v)From 9.00am until 5.00pm on the Friday of the first week of Term 1, 2 and 3 school holidays;

   (vi)From 9.00am until 5.00pm on the Friday of two out of every three consecutive weeks in the Christmas school holidays;

   (vii)At such other times as are mutually agreed between the parties.

   (b)From 1 July 2011 until 1 January 2012:

   (i)From 9.00am Saturday until 11.00am Sunday each alternate weekend;

   (ii)From 9.00am until 5.00pm on Father’s Day;

   (iii)From 2.00pm until 8.00pm on Christmas Day;

   (iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

   (v)From 9.00am until 5.00pm on the Wednesday of the first week of Term 1, 2 and 3 school holidays;

   (vi)From 9.00am until 5.00pm on the Wednesday prior to each alternate weekend visit as set out in (i) above during the Christmas school holidays;

   (vii)At such other times as are mutually agreed between the parties.

   (c)From 2 January 2012:

   (i)from 9.00am Saturday until 4.00pm Sunday each alternate weekend;

   (ii)From 9.00am until 5.00pm on Father’s Day;

   (iii)From 2.00pm until 8.00pm on Christmas Day;

   (iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

   (v)From 9.00am until 5.00pm on the Wednesday of the first week of Term 1, 2 and 3 school holidays;

   (vi)From 9.00am until 5.00pm on the Wednesday prior to each alternate weekend visit as set out in (i) above during the Christmas school holidays;

   (vii)At such other times as are mutually agreed between the parties;

5. That the time the children spend with the Father, pursuant to these Orders, be monitored by members of the Father’s family known to the children until 1 March 2015, when the child [S] has turned 14 and the child [K] has turned 12.

6. That, subject to Orders 7 and 8 below, the times the children spend overnight with the Father shall take place at the home of the paternal grandparents.

7. That the Father be restrained from:

   (a)staying overnight at the paternal grandparents home, whenever the children are there, between the hours of 9.00pm to 6.00am, from the making of these Orders until 1 February 2014;

   (b)being present when the children are in the bathroom toilet, or are dressing or undressing;

   (c)being present in any room with the children alone in which the door is shut.

8. That as from 2 January 2012 in the event the Father proposes to take the children away for short overnight holidays (ie. no more than three consecutive overnights) with members of the paternal family, he is to provide the Mother with no less than 30 days written notice, with such notice to include full accommodation and emergency telephone contact details. The Father is to ensure that he sleeps separately from the children and does not approach the area in which the children are sleeping between the hours of 9.00pm and 6.00am and the children are to be accommodated with the paternal grandparents and/or another adult member of the paternal family known to the children.

9. That the children be at liberty to communicate with the Father by telephone at any time they express a wish to do so and in this respect the Mother shall be responsible to facilitate the children communicating with the Father by telephone.

10. That the father is to communicate with the children by telephone on each Thursday at 6pm, with the father to contact the children on a telephone number provided to him by the mother, and with the mother to facilitate such telephone communication

11. That the Mother be restrained from discussing these proceedings or the allegations of sexual abuse with the children and use her best endeavours to ensure that no other person discusses these proceedings or the allegations of sexual abuse with the children.

12. That the children attend confidential counselling with Ms J or Ms M or such other person as may be nominated by Associate Professor Q and that the Mother do all things necessary to facilitate the children attending on those counsellors.

13. That both parents do all things necessary and sign all necessary documents to enrol in a Parenting After Separation Program with a view to considering how they may manage and improve parental communication in respect of issues pertaining to the children.

14. That change over shall be facilitated by the Father collecting and then returning the children from the Mother’s home in the presence of a member of the paternal family.

15. That the Mother continue to attend on Mr D or such other health professional that she is referred to, to provide her with support and counselling to assist her to adjust to the children spending time with the Father. 

16. That the Mother be restrained from inappropriately questioning the children about the time they spend with the Father.

17. That the Mother use her best endeavours to ensure that no other person inappropriately questions the children about the time they spend with the Father.

18. That the Mother ensures the children are equipped with all required medication including asthma medication during any time they are to spend with the Father.

19. That the parents are each to ensure that the other parent is kept informed as soon as is reasonably practicable of:-

    (a)any serious medical problems or illness suffered by the children;

    (b)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;

    (c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

    (d)any social, school or religious functions which the children are to attend;

    (e)the telephone contact number of the parent;

    (f)any other matter relevant to the welfare of the children.

20. That the parents are to communicate about the children in writing, by email, via SMS, with the assistance of an adult member of the paternal family and/or via any other means as is agreed to between the parents.

21. That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.

22. That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.

23. That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

24. That each parent and member of their respective families is entitled to attend all events involving the children including, but not limited to:-

    (a)sporting fixtures;

    (b)extra curricular activities that allow for parental attendance or participation;

    (c)school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents;

    PROVIDED THAT the father is not to physically approach the mother at such events and must maintain a distance of 50m from here, where it is reasonably practicable to do so.

25. That both parents are to be restrained from making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of either of the children and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of either of the children.

26. That in the event that either parent wishes to remove the children from the state of NSW for a holiday period, they will notify the other parent in writing, no later than 72 hours before the trip of the proposed destination, a mobile or other emergency telephone contact member and a proposed return date.

27. The father’s time with the children in accordance with these Orders is suspended for one (1) week of each of the mid year school holidays and for three (3) weeks of the December/January school holidays, PROVIDED THAT the mother gives notice to the father that she will in fact be away on holidays with the children during these periods.

NOTATION

(a)The paternal grandparents collectively and severally undertake to return the children to their mother at the first reasonably appropriate opportunity in the event of one or both of the children becoming and remaining unduly distressed.

IT IS NOTED that publication of this judgment under the pseudonym Young & Young is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 296 of 2007

MS YOUNG

Applicant

And

MR YOUNG

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case about [S], who is ten years old, and his sister, [K], who is seven years old.  Both children have made disclosures to the effect that their father has physically and/or sexually abused them in the past.  The parents cannot agree about the circumstances in which the children should spend time and communicate with their father.

Background

1. The applicant in these proceedings is the children’s father, who is 33 years old.  The respondent is the mother, 32 years old.  Both live in the [omitted] region of New South Wales.  The parents commenced their relationship in 1996, started living together in December that year, and then married in July 1997.  [S] was born in May 2000, and [K] in February 2003.  The parents separated in February 2006.  At this time, [S] was five years old, and [K] three years old.  The father moved out of the home in circumstances to which I will shortly refer.

2. The evidence indicates that the period leading up to the separation of the mother and father was a difficult one for both of them.  The father was attending anger management counselling. The mother was receiving counselling and was on anti-depressant medication.

3. On the 8 February 2006, the mother alleged that [S] disclosed to her that his father had punched him in the stomach.  It was this event that precipitated the father leaving the former matrimonial home.  A few days after separation, the Department of Community Services appears to have received the first notification of the allegation of physical abuse on [S] by the father.  The father was spending time with the children during the day at various times during February 2006.  There was an incident at the home on 21 February 2006 at which the parents argued.  The mother sought to obtain an apprehended violence order, arising out of this incident, but the police declined to take any action.

4. In March 2006, the evidence indicates that the Department of Community Services had decided not to investigate further the physical abuse claims.  This appears to have been a stressful time for the mother, who, in addition to taking anti-depressants, started to take insomnia medication.  Over the next few months, it appears that the mother became aware that the father had commenced a new relationship, thus causing her hurt and anger.

5. On the 10 March 2006, the mother alleges that [K] made disclosures to her about sexual assault by the father.  I will refer to the details of this in due course.  Curiously, however, on the very next day, the mother consulted her general practitioner and made no mention of [K]’s disclosure.  Moreover, the following week, she also consulted her psychologist and made no mention of [K]’s disclosure.  The father submits that the mother’s failure to disclose is consistent with no such disclosure having been made by [K]; or alternatively, a belief by the mother that the disclosure was not true.  However, the mother asserts that she was so deeply upset by the disclosure that she did not know what to do.

6. In any event, on either 21 or 22 April, 2006, [K] made a further, detailed disclosure about her father sexually abusing her, and this time the disclosure was made to the mother, the maternal grandmother and maternal aunt.  Moreover, [S] disclosed to a counsellor about his father physically assaulting him.  These disclosures resulted in a number of notifications to the Department of Community Services.  The father asserts that the timing of these disclosures is significant, in that they occurred shortly before he was about to commence unsupervised contact with the children, as previously agreed with the mother.

7. As a result of the notifications to the Department of Community Services, the regional Joint Investigative Response Team (JIRT) became involved.

8. On the 28 April 2006, during the course of counselling, [S] made a disclosure that his father had sexually abused him.  [S]’s previous disclosure was about physical abuse.

9. It’s the father’s case that up until late April and early May, he had not been notified or confronted about these disclosures by the mother, or any other person.  Indeed, he asserts that the first he heard about these allegations was when mutual friends indicated to him that the mother was saying that he had abused the children.  The father says that it was not until early May 2006 that JIRT contacted him, advised him that he was being investigated, and directed him not to contact the mother or the children.  Indeed, as it transpired, the father had no contact with the children until January 2007.

10. In May the mother and the maternal grandmother each had quite extensive communications with the Department of Community Services, and the evidence indicates that they were not always satisfied with what they perceived to be the lack of progress, and the Department’s inaction, in relation to the disclosures. [K] was interviewed by the regional JIRT team but failed to make a disclosure.  They decided that no further action would be instigated.  Despite this, the mother sought to have another apprehended violence order taken out against the father, but the police declined, as there was no evidence to justify the same. 

11. Shortly after May 2006, initially [K], and subsequently [S], commenced counselling at a specialist sexual assault counselling service in the [omitted] region.  [S] was subsequently interviewed by an officer of the Department of Community Services, and he did not make a disclosure.

12. The mother subsequently sought to engage with the regional JIRT team in relation to the further disclosures made by [S] about sexual abuse.  The evidence indicates that the JIRT staff were concerned about further interviewing [S], just a month after the last time he had been interviewed about the physical abuse allegations, and stated their preference to suspend the case in view of the fact that [S] would not talk about what the mother described as his “secret.”

13. In July 2006, a medical examination of [K] resulted in a normal physical examination, which could neither confirm nor deny the allegations.  However, [S], during the course of another counselling session, confirmed his earlier disclosure about his father sexually abusing him.

14. During the course of 2006, the evidence indicates that the mother also sought to form new relationships with men that she had met, mostly by way of the internet.  The father says that this is significant; firstly, because the mother actively misrepresented this fact to Associate Professor Q, the court appointed Part 15 expert, who, as will be seen, prepared two reports in this case.  Moreover, the father seeks to assert that if it is, in fact, the case that the children were abused, there were other men in the lives of the children and the mother during the periods when the disclosures were being made.

15. During the relevant periods in 2006, the mother, who had herself been sexually abused as a young person, had a chance encounter with the alleged perpetrator of that abuse on her.  Accordingly, the father asserts and Associate Professor Q confirmed, the issue of her own abuse was reactivated in her mind.  The father asserts that the other significant issue about this is that, once again, the mother had failed to disclose to Associate Professor Q not only the fact of her own prior experience with sexual abuse, but the recent encounter with the alleged perpetrator.

16. In early January 2007, the evidence indicates that the father was contacted by a member of the regional JIRT team and advised that JIRT was closing the investigation.  It is quite possible that it was during this telephone conversation that the father first became aware of [S]’s allegation that he had been sexually abused by the father.  Shortly after this telephone call, the father contacted the mother with a view to reinstating contact.  The father asserts that shortly after this request, he began hearing from members of his family and friends that the mother was telling people that the father was a paedophile.

1. It is clear that the mother and the maternal grandmother were deeply upset by the decision by JIRT not to proceed any further with the matter.  Indeed, it is clear from all of the evidence in this case, including the evidence of the mother and maternal grandmother themselves, that even as at the date of the final hearing, they remained steadfastly of the view that the father had in fact abused the children, as the children have disclosed.

2. In May 2007, the mother made yet another application for an apprehended violence order against the father. Again, it was unsuccessful.  Indeed, the evidence indicates that her application had to be withdrawn on the morning of the final hearing, the interim AVO was discharged, and the mother was ordered to pay costs. 

3. The father commenced proceedings in this court, before me, in March 2007. I heard an interim application and made various orders, including orders for supervised contact at a supervised contact centre. My reasons for judgment were published and the citation is [2007] FMCAfam 615.

4. In August 2007, the intake process was undertaken for the supervised contact centre.  The first visit took place in September 2007 and, the evidence indicates, after a relatively short period of adjustment, the supervised contact visits appeared to progress quite well.

5. On 6 March 2008 there was a further interim hearing at which Associate Professor Q gave some evidence following the release of her first report dated 2 March 2008.  The parties entered into further interim orders by consent, the effect of which was that supervised contact at the centre would continue for six months, and then progress to alternate Saturdays from 2 pm to 5 pm supervised by an agreed supervisor.  There were further conditions attached to this order.  That contact continued right up until the day of the final hearing.  Because of the position adopted by the mother at the final hearing it became necessary to set out the detailed history referred to above.  This is despite the fact that the issues separating the parties are not numerous.

Competing Proposals and Issues

1. By the time of final submissions, the issues in this case had, to a certain extent, narrowed.  The minutes of orders sought by the mother, the father and the independent children’s lawyer are set out in their exact terms in the first schedule to these reasons for judgment.  There was a close similarity between the orders sought by the Independent Children’s Lawyer and the father.  There are three main points of difference and, for ease of reference, I will refer to the orders sought by the father because, in so many respects, the mother agreed to them.

2. The first point of difference arises in order 2 proposed by the father.  The mother objects to being restrained from relocating the children’s home out of the [omitted] region.  Her counsel submitted that there was no evidence about any intent by her to relocate and, indeed, all of the evidence indicated precisely to the contrary.  Indeed, I agree.  There was not the slightest hint of any intention by the mother to move outside of the area where the children are so well established, supported and where they have grown all of their lives.  No doubt the father’s concern is that by agreeing to the mother having sole parental responsibility, this gives to the mother, at least in theory, the unilateral right to decide where the children should live, including, conceivably, outside of the [omitted] region.

3. Be that as it may, the parents have agreed that the mother’s sole parental responsibility is limited to the extent that she cannot relocate the children’s home or change their schools without first providing the father with 30 days written notice of her intention to do so.  If the issue arises at some time in the future, therefore, I am satisfied that the father will have enough time to bring this matter back before the courts.  On the basis of the evidence before me, however, there is no evidence to justify the restraint sought by the father in his orders.  I do not propose to say anything further about this matter.

4. The second issue, and by far the most significant issue in these proceedings, is whether, and if so when and under what circumstances, the children should have overnight contact with their father.  The mother proposes that until the children turn 11 years old, their contact with the father should only be Sunday daytime contact each alternate weekend, with the father’s contact with the children to be in the presence or close vicinity of members of the father’s family, and further with the father prohibited from having time alone with the children in any enclosed room.  Once the children turn 11, the mother proposes that any additional time between the children and their father be as the children propose, and as the parents otherwise agree.

5. The father proposes a carefully graduated increase in time with the children over three stages, which moves from stage 1 daytime contact, to stage 2 overnight Saturday each alternate weekend contact through to stage 3 which involves overnight contact on Saturdays but with longer hours.  The father proposes a number of further restrictions and conditions on his contact with the children including monitoring by members of his family, overnights only at the home of the paternal grandparents and on the condition that he won’t be there between the hours of 9 pm and 6 am, on the days in question.

6. I propose to deal with one discrete issue, at this point, and otherwise deal with the competing proposals in much more detail below.  I reject the mother’s proposal that once either child turns the age of 11 years there should be such further contact with the father as the child proposes, and as agreed between the parents.  I believe there is a real danger, in the context of this case, of placing responsibility on the children to decide whether, and if so on what basis, there should be further contact with their father.  In the circumstances of this case, I am satisfied that both the mother, and the children, firmly believe that the children have been abused. 

7. As it turns out, and for the reasons I set out below, the situation is far from being as simple, or as clear, as what the mother and children perceive it to be.  Given their perceptions, however, and the findings which I will make that ever since the disclosures had been made, the mother and children’s concerns have been continually reinforced in their minds by the mother and her family, it would be almost inevitable that the children would decline to have further time with their father.  Moreover, to the extent that agreement for further contact is dependent upon the mother’s cooperation, the evidence before me leaves me with no confidence that the mother has the capacity to reach an agreement about these matters.  Accordingly, the mother’s proposal for the extension of contact once the children turn 11 is not practical, workable, or in the best interests of the children.  In cross-examination, Associate Professor Q acknowledged these difficulties.  I propose to say nothing further about this discrete issue.

8. The third major point of difference between the proposals relates to a number of relatively minor and discrete issues about the orders.  These issues include whether there should be additional overnights during holiday periods, and if so on what terms.  There is an issue about whether the mother should be restrained about discussing the proceedings with the children. There are issues about where changeovers should take place, whether the children should attend counselling, whether the mother should be restrained from questioning (as opposed to interrogating) the children after contact.

9. There are relatively minor issues about the terms of orders for the provision of information about the children, about medication, and about whether the father should be entitled to attend at the children’s schooling on occasions when parents would otherwise attend.  There is also an issue about whether there should be a notation relating to respecting the wishes of the children.  I will discuss these issues in more detail below.

10. The main issues, as I have described them above, will be determined by reference to the answers to a number of questions including:

    (1)Has the father actually abused the children?  There are three possible answers here:  yes, no, or that no finding is possible.  The first limb of the mother’s case is that the evidence justifies a finding that the father has actually abused the children, as alleged, and as disclosed.  During the mother’s counsel’s closing submissions I expressed surprise to her, that this should be the mother’s position, particularly having regard to all of the evidence.  Moreover, I suggested to her that the mother’s stated proposal that there be daytime contact but with a level of scrutiny that was less than supervision was a position quite inconsistent with her invitation to the court that I should make a finding – a positive finding of abuse.  Notwithstanding these expressed concerns, the mother’s counsel indicated in no uncertain terms that she was instructed that the mother’s main submission in this case was that the evidence justified a finding that abuse had occurred.  Whilst the adoption by the mother of this firm position is not surprising, it is disappointing and perhaps reflects a lack of close consideration by her of the consequences of adopting such a position.  It is not surprising because the evidence enables me to make a clear finding that the mother, and members of her family, especially the maternal grandmother, have over the last four years actively kept alive in the children’s minds, and certainly reinforced, the disclosures made by the children back then, and the mother’s conviction that the allegations are unequivocally true.  Having said this, I agree with evidence given by Associate Professor Q that the actions of the mother and her family were not necessarily the sole reasons why these matters were kept alive in the children’s minds.  However, I also agree with Associate Professor Q that these actions were the main reason why the allegations were kept alive in the children’s minds.  In the circumstances, therefore, it is not surprising that the mother should adopt a position that the court should make a positive finding of abuse.  It is disappointing, however, because it forces the court to closely evaluate evidence of circumstances surrounding the disclosures by the children, when it would not have been necessary to do so if the court had not been invited to make a positive finding.  For example, in the background to these proceedings, I referred to the mother’s previous personal experience with sexual abuse, her more recent encounter with the alleged perpetrator of that abuse, and of a series of relationships she had with other men in the post-separation period coinciding with the time when disclosures were being made.  All of these potentially embarrassing facts would not have rated even a passing mention if the mother had not insisted that the court consider making the positive finding.  As it is, for reasons that I will discuss below, it is not possible to make the positive finding that the mother invites the court to make.  Indeed, no finding is possible.  Having said all of the above, the mother was entitled to adopt the position that she did, even if the court believes that it was ill-considered, particularly having regard to the orders that she was inviting the court to make.

    (2)The second question is:  is there an unacceptable risk of abuse to the children having regard to the proposals advanced by the mother, father and Independent Children’s Lawyer.  In theory, there are at least three possible answers:  yes, no, or it is not possible to say.  On the facts of this case, however, it is possible to answer the question in either the affirmative or negative.  It must be remembered that whether or not there is an unacceptable risk of abuse to the children depends on the proposals advanced by the parties.  Clearly, the mother believes that there is no unacceptable risk of abuse if the children’s contact with their father is limited to daytime only, and in the presence of or close vicinity to a member of his family, and provided he does not spend time alone with the children in any enclosed room.  Conversely, the proposals of the father and the Independent Children’s Lawyer mean that they consider there to be no unacceptable risk of abuse to the children having contact with the father within the detailed parameters of the proposal advanced by him.  In each case, it is clear that the “risk of abuse” that each of the parties refer to is the risk of further physical or sexual abuse, consistent with the disclosures the children made.

    (3)The third question, and in many respects the overarching question, is what orders are in the best interests of the children. In many respects this involves the court “zooming out” from singular considerations of unacceptable risk of abuse, and studying the broader panorama of considerations relating to the best interests of the children as set out in section 66CC of the Family Law Act. That is not to say that the first two questions, focusing on abuse and unacceptable risk of abuse, are not manifestations of the best interest principle – for they clearly are.

11. Before proceeding further it is important to state what was clearly common ground between the parties in this case.  It is common ground that the children have made disclosures, indeed counsel for the father in closing submissions described them as “terrible disclosures.”  It is further common ground that the mother clearly believes that the children have been abused by the father.  Moreover, it is common ground that the children believe that they have been abused by their father. 

12. There is another irrefutable fact which, whilst not formally conceded by the parents, is so implicit in their respective cases as to be beyond question. This irrefutable fact is that there is no trust or communication between the parents.  The situation is probably beyond repair, but that is not to say that the parents ought not to try to at least communicate better, or to seek professional assistance in this regard, even if the trust can never be restored.

13. There is one further matter to which I have already referred to above.  That is that I find that the mother and her family have kept alive in the children’s minds the disclosures they have made, and certainly reinforced them, together with the mother’s own conviction that these disclosures are true, over the last four years.

Evidence Presented

1. The father’s case consisted of affidavits sworn by him, and affidavits by Mr C, and the paternal grandmother, Ms Y.  Only the father was required for cross-examination.

2. The mother’s evidence consisted of her affidavits, and that of her mother, the maternal grandmother.  Both were required for cross-examination.

3. In evidence were the two Part 15 expert’s reports prepared by Associate Professor Q.  She was cross-examined.

4. In addition, there was a considerable quantity of documents tendered, most of which had been produced on subpoena including by the New South Wales Police, Kids Cottage, the mother’s counsellor, the mother’s psychologist, the mother’s doctors, the Department of Community Services, the supervised contact centre.

Applicable Law

1. I restate the applicable law as was set out at paragraphs 15-22 of the reasons for judgment I gave in this case, at the interim hearing.  A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:

   92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.

   Unacceptable risk test

   (a) What is meant by “unacceptable risk”?

   93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.

   94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:

   “(i) The reality of sexual abuse

   The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.

   ...

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”

   95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:

   “courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”

   96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:

   “In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

   ‘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.’

   His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.

   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. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts 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.”

   97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

   98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:

   “The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-

   ‘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.’ (at page 77,081)

   The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   ...

   It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”

   99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.

   100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.

   101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.

   102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:

   “With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”

   103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:

   “Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”

   104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:

   “Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”

   105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

   “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

   This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”

   106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:

   “There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

   107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:

   “...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”

   108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:

   “Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”

   109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.

   110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:

   “Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”

   111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

   (b) The contact issue

   112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.

   113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.

   114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.

   115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

1. In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:

   In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

2. In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras.18 and 19:

   18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in

   
   

   WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

   19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.

3. In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38 and 39:

   38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."

   39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.

4. Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.

   45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.

5. It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.

6. Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:

   At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:

   When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent.  In order to weigh the competing risks, the court should analyse what the risk is.  To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk.  (paragraph 5).

7. It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.

The Evidence of Associate Professor Q

1. For ease of reference, I will henceforth refer to Associate Professor Q as the expert.  The expert produced two reports, one dated 2 March 2008, and the second dated 29 March 2010.  The expert’s report follows her usual comprehensive form.  Clearly, the expert had available to her, at the time of preparing both reports, most of the documentary evidence in this case.  She met with the parents, the children, and the other significant persons in this case.  It is important to note that the expert’s first report was based on an interview that took place almost two years after the disclosures were first made, and the second report over four years after the disclosures were first made.  As the parameters of the dispute between the parents had narrowed by the time of the hearing, I do not propose to refer to those parts of the expert’s evidence that do not bear directly on the issues in question.

2. The expert was asked to comment on whether the children are at risk of being exposed to any physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.  In her first report, the expert noted that during the course of her assessment both children made disclosures of either physical or sexual harm related to their father.  She also noted that the children had made a number of disclosures to other people, although the JIRT investigation found that the matter was not substantiated.  She noted that apart from the disclosures by the children there seems to be little other evidence that the father has been abusive.  However, she noted that the children have made consistent disclosures over time.

3. In her second report the expert commented that with the passage of time it is even more difficult to be any more definitive on the issue of the allegations and the risk of harm than at the first assessment.  She observed, however, that there were no reports of further abuse or trauma since then.  I will deal with the expert’s oral evidence on this topic, in due course. 

4. In relation to the children’s views and the weight that should be accorded to those views, in the first report the expert states at pages 29-30:

   The children were highly anxious regarding contact with their father and both were quite clear that they do not wish contact to continue.

   [S] is old enough to have an understanding of the situation and to be able to report what he has experienced. [K] is not at an age when she can understand the overall situation but she too would have the ability to report what she has experienced.

   While it is possible that children can become alienated from a parent on the basis of what they have been told by others it is unusual to see this degree of alienation in a situation other than one in which the children have actually experienced harm. Generally when children are responding to suggestions by adults that they have suffered harm they will show a lot more ambivalence towards the alleged perpetrator than is the case with these children. The lack of any evidence of a positive bond with their father suggests one of two possibilities: that because of harm they have suffered they have become alienated from him; or that there was never much of a bond with their father and in this case it would take less to cause an alienation from him.

5. In the second report the expert states at page 24:

   Both children say they wish to limit contact with their father, [K] possibly more so than [S]. It was difficult to be confident that this was genuinely the wish of the children as it is clear that they have been influenced in this; the language they used was not their own and the memories of abuse that they invoke are unlikely to be direct memories – this is especially so with [K]. It is apparent that these issues have been kept alive and reinforced over the years, but that is not to say that the original disclosures have any less validity.

   [K]’s disclosures at this interview were about physical rather than sexual abuse, although Ms Q reported that [K] has recently referred to sexual abuse. It is apparent that the children remain influenced by memories of past abuse but it is difficult to know how much these are not direct memories.

6. My own assessment of the weight that ought to be given to the children’s views is consistent with that of the expert in the second report.  It is clear that the children have been influenced in their views, by the mother and her family.  Accordingly, in the circumstances of this case, I am not prepared to accord any weight to the views expressed by the children.  I propose to say nothing further about this consideration, in these reasons.

7. It must be noted, however, that the expert confirmed in her oral evidence, and I accept for the purposes of these proceedings, that the mere fact that these issues have been kept alive in the children’s minds, and reinforced over the years, does not mean that the original disclosures have any less validity.  In many ways the real forensic issue in this case is the weight that I will give to the evidence about the disclosures the first time they were made, bearing in mind that they were mainly made in 2006 and with less emphasis on the repetition of these disclosures subsequently.

8. In terms of the nature of the children’s relationship with their parents and other relevant persons, there is no doubt the children are primarily attached to the mother, with whom they enjoy a good relationship.  The real focus in the present circumstances is the nature of their relationship with their father.  In the first report, the expert was able to observe the children’s interaction with their father and she commented that the children were “highly anxious” during the visit with their father.  Indeed, the expert records that later both children made disclosures to her.

9. By the time of the second report, two years later, and four years after the disclosures, the expert recorded a change in the children’s relationship with their father.  She says at pages 24-25 of the second report:

   The children were generally relaxed with their father and paternal grandmother although it was apparent that they maintain some element of distance from him. They seem to be establishing appropriate bonds with the extended paternal family, including their cousins. Both Mr Young and his mother report that normally the children seem to enjoy the time they spend with them and do not have any difficulty.

   Although the great grandmother, Ms C (‘grandma’) did not attend; it is apparent that the children have a significant bond with her. They also seem to have established an easy relationship with Mr C.

10. Clearly, there had been an improvement in the children’s relationship with their father, no doubt contributed to by the passage of time, as well as the frequent contact that was occurring between them.  It is notable that this has occurred notwithstanding the fact that the children remained influenced by memories of past abuse, kept alive by their mother.  As it is, based on the totality of the evidence before me, I accept the father’s evidence that his relationship with the children has greatly improved such that they are comfortable during his contact with them, and enjoy the activities they do with their father, and their interaction with the father and his extended family.

11. In relation to the willingness and ability of each of the children’s parents to facilitate and encourage a close relationship with each of the parties, the expert in both reports acknowledged that there is no issue on the father’s part in this regard, as he does not seek to interrupt the primary bond between the children and the mother.  In both reports, however, the expert noted that the mother had concerns about anything other than supervised contact, provided this did not include overnights.

12. This is an opportune time to mention that the court is left in no doubts that the mother’s fears about the father abusing the children are genuinely held.  There is no evidence in this case to suggest that the mother was acting, at any time, past or present, in a malicious manner.  To the extent that the father’s case was presented on the basis that she was not willing to facilitate and encourage a close relationship between the children and the father, I do not accept this has having a valid basis on the evidence.

13. The expert also considered the likely affect of any changes in the children’s circumstances.  At the time of the first report the children were accustomed to only seeing their father infrequently.  By the time of the second report, however, the expert found the children to be accustomed to regular contact with their father and his family.  She goes on to record that the children do not wish to extent this time, but does express reservations about the extent to which this reflects their true feelings.  Nonetheless, this clearly needs to be managed sensitively.  The expert states at page 25 of the second report:

    Based on their own recollections or on what they have been told or a combination of both, the children remain much influenced by events of the past and for this reason it would be difficult for them to accept more than limited time with their father.

14. The expert deals with the issue of the capacity of each parent to provide for the needs of the children.  In the first report the expert recorded that the father was of the view that the mother had encouraged the children to make certain allegations and had fostered in them a belief that they had been harmed by him which, of course, he firmly denies.  He notes that if it were the case, this would raise serious issues about the mother’s capacity to provide for the children’s needs.  I must say that, by the time of the final hearing, I considered the father’s case to be far more subtle than what he may have indicated, or what the expert discerned during the course of the first report interviews.

15. By the time of the second report, the focus seems to have shifted to the role of the mother in continuing to foster in the children a belief that the father had harmed them.  In the second report, at page 26, the expert notes:

    It seems likely from the way the children spoke that the mother reinforces their recall of abusive experiences with their father.  It is important the children feel validated by their parent in circumstances where they have disclosed abuse, and that was certainly the case when these children first made disclosures to their mother;  however, over time, it is not in their best interest to keep those issues alive more than is necessary.

16. Other than these matters, I consider there to be no material concern about the mother’s capacity to provide for these children’s needs.  Whilst it is unstated, I think it can be safely assumed that the expert would have serious concerns about the father’s capacity to provide for the children’s needs if I were to find that he had perpetrated the abuse as alleged.  As it is, no such finding is possible, which makes far more complicated an assessment of the father’s capacity to meet the needs of these children. 

17. Under the heading of The Effect On The Children Of Any Family Violence To Which They Have Been Exposed, the expert makes the following comments at page 32 of her first report:

    Both children present as highly anxious and traumatised; the effect on them of what they have disclosed has been to make them extremely fearful of their father and wish to have no further contact with him.  Both have been symptomatic in various ways such as bedwetting; [K] also shows quite regressed language and behaviour; [S] has been angry and has had trouble controlling his affect.  These are symptoms of trauma and anxiety.

18. By the time of the second report, these symptoms of trauma and anxiety were greatly reduced.  Indeed, in a separate heading of the expert’s report entitled The Special Needs Of The Children, the expert makes the following comments at page 28 of the special report:

    When first assessed in 2008, the children were highly anxious and presented as suffering from the effects of trauma. Both made disclosures at that time and it was then a lot closer to the period when those events are alleged to have occurred. There was some question then about the mother’s contribution to the allegations but this was difficult to resolve then and much more difficult with the passage of time. It does appear that she has kept those issues alive with the children possibly more than is necessary and this is not in their best interests. Otherwise, I would have anticipated that a child of [K]’s age would by now be reporting only limited memories of trauma and that there would not be a clear time line to her memories. This does not mean that the abuses did not occur as originally disclosed by the children.

    Ms Q reports that the children are still bedwetting. It may be that this is simply a developmental lag; it is a not uncommon problem in primary school children.

    [S] remains a somewhat troubled child but it is difficult to say how much this is related to the issues from childhood with his father since he is also feeling displaced by his sister and possibly by the new baby as well. The past two years have been challenging for these children: they have had to adjust to two new stepfathers and the father’s partner and to meeting the paternal grandparents and aunts, uncles and cousins. For all of these reasons it would seem that [S] would benefit from counselling. Most of these circumstances apply to [K] also.

    Because the indications were present at the first assessment that significant trauma had occurred and, in addition, it seems to have been reinforced over time rather than allowed to recede, and the events of the past two years have been challenging, the children should have access to a counsellor so that there is a neutral forum where they can discuss their feelings.

1. The expert was, of course, invited to make recommendations about future contact.  In her first report, the expert stated that, given the degree of anxiety of the children, it was her view that contact must continue on a supervised basis.  Importantly, she noted that even if the court were of the view that the allegations were not substantiated, then contact would still need to be supervised because of the degree of anxiety of the children and because the mother and her family would find unsupervised contact unsupportable.  In these circumstances, she suggested that there may be a need for a slowly graded transition to rather more contact than two hours per week. The expert recommended that the situation be reviewed in two years’ time. 

2. By the time of the second report, the expert makes the following comments at pages 29-30 of the report:

   The father has now consolidated his situation in that relationships with his family have been restored and he enjoys excellent support from them. It would seem a reasonable proposition for the children’s visit with him to continue now without strict supervision, provided that they continue with the involvement of or at the home of his parents or a suitable member of his family. The paternal grandmother is willing to collect the children and return them and this would seem reasonable also since Mr C has to travel a considerable distance to undertake the changeovers. It would seem reasonable that other members of the paternal family could undertake this now since the children seem to have developed warm and friendly connections with them.

   The children still express some reluctance to spend time with their father and the questions of past physical and sexual abuse were never resolved and at this stage there is no way of casting further light on those issues. Thus, it would be preferable that contact continue on a restricted basis. While my recommendation would be that strict supervision is no longer required, it would be prudent for Mr Young not to spend time alone with the children in order to protect them and their mother from unnecessary anxiety and also to guard against the risk of further allegations. I would suggest that this precaution continue until [K] is aged 11; [S] will then be 14 and if the children wish to spend time, together, with their father or his family at that stage, they will be at an age when they can exercise protective behaviours. Before that time, for [S] only, I would suggest that from age 12 he might be allowed to choose whether he wishes to spend more time with his father.

   In addition, I would suggest that from age 11 each child should be able to choose whether they wish to spend additional time, including overnights, with the paternal grandparents or other members of the paternal family, such as extended weekends or holidays, provided that this did not include them spending time alone with their father.

   I would suggest that the children might now spend a full day each weekend with the paternal family, with the precautions mentioned already, and that provision be made also for some time on other special occasions for at least part of the day. It would seem reasonable that the paternal grandparents participate in school activities as appropriate.

   In his recent affidavit (March 28^th) I note that Mr Young refers to times when he has asked [S]: ‘Do you love me?’, on another occasion he reports [K] saying that she loves him, possibly that was volunteered; on occasion he has asked for a hug or a kiss. While these incidents are not necessarily inappropriate, given the possibility that there has been past trauma, it is my view that particular sensitivity is required and that it would be preferable that the children are not asked to proffer hugs or kisses or expressions of love but these should be allowed to develop naturally.

3. I have already recorded the reasons why I disagree with the expert’s recommendation that the children be allowed, in effect, to dictate further contact when they attain a certain age.

4. The expert also gave oral evidence and was examined by each of the counsel for the parents and the Independent Children’s Lawyer.

5. The Independent Children’s Lawyer’s counsel cross-examined the expert in relation to diary entries made by the maternal grandmother relating to events of 21 and 22 April 2006.  The context of this cross-examination is that [K]’s disclosure did not spontaneously refer to the father, but rather that the father’s involvement was suggested by either the mother and/or the maternal grandmother.  This extract commences at page 112, line 36, and concludes at page 113, line 27:

   And I’ll tell you that the evidence of Ms Q, the author of this diary, given orally today, was that the – what she learned from Ms Young – that’s referred to in that entry – had to do with the occasion when [K] was rubbing a doll in its genital area;  well, part of it representing a genital area, and the mother Ms Young had a conversation with [K] about that?‑‑‑Yes.

   I’d like to take you also, or to at least tell you what the mother’s evidence was about that when the proceedings were being conducted in April;  I think it was 21 April 2010 that the mother gave this evidence.  She said she:

   went into [K]’s room and [K] had a naked doll.  She was rubbing the doll’s genital area.  She saw me and started freaking out.  I said, “Tell mummy what you’re doing that for.  Has anyone touched you there?  Did daddy do that to you?”

   And the impression from the mother’s evidence as she gave it, was that those questions were cumulative and without pause.  Are you able to make a comment about first of all, an apparently concerned reaction on the part of the mother, to those actions of the child in rubbing the doll on its genital area?  Does that – is that something that in the context of that evidence that I have just told you about, would suggest an overreaction on the part of the mother?‑‑‑I think so.  I think that to respond almost immediately with “Did daddy do that to you?” in the absence of other experiences that might have already been pointing in that direction, I think that does suggest a very anxious reaction.

   That particular evidence, in the context of that diary that you have seen and read today, of the maternal grandmother;  that was the event that was told by the mother to the maternal grandmother on 21 April 2006?‑‑‑Yes.

   Can I take you then, please, to the very next entry in that diary.  It’s headed up Saturday, 22 April 2006.  You will see from that entry that according to this record, which the maternal grandmother has confirmed in giving her evidence today, that [K] was asked, “Would she tell me hers and daddy’s secret?”  Now, in the context of what you have just heard about the evidence of [K]’s behaviour with the doll, are you able to make any comment about the fact that that question was asked – that invitation was made, and bear in mind that at this time, [K] was aged about three years and two months?‑‑‑Look, I think the same;  that to immediately – to immediately suggest daddy is quite a problem, and obviously, the way that question’s framed implicates daddy immediately.

6. The cross-examination then moved on to the topic of whether [K] was using age-appropriate language. This extract is at page 113, commencing at line 37 and concluding at line 43. 

   Yes?‑‑‑Okay, just hold on.  Sorry, I think that entry – what concerns me there is the report that [K] says, “Daddy was naked.”

   Yes?‑‑‑It seems to me that it’s unlikely that a three-year-old would use that word.  However, the rest of what the child is reported to have said is – is very concerning.

7. Now, if one’s examination of the oral evidence of the expert stopped here, one would be having doubts about the extent to which the record of the disclosure is an accurate one, the extent to which it was spontaneous, as opposed to suggested, and whether, in fact, the language used is that of the child [K].  However, at page 116, the following passage occurs from line 1-21:

   MS FALLOON:   Dr Q, you gave evidence, with respect to the words “No, daddy was naked,” in a report attributed to the child, you then said that the rest of that entry was very concerning?‑‑‑Yes.

   Why is it concerning?‑‑‑Well, it does seem to be a description of observing an erection and a penis in a way that’s fairly compelling language, I think, from a child.

   If it were the case that the child had not directly observed that – an erect penis, is it likely, in your view, that this child could have made that up?‑‑‑I don’t think so.  It’s outside – it would be outside the experience of a child that hasn’t observed it, I think.  I can’t see any basis on which a child would understand something like this unless there had been observation.

   You will see that from the next quarter of that page, the bottom right-hand quarter, that’s a continuation of the passage that I’ve just been discussing with you?‑‑‑Mm.

   You will see there an alleged description by the child of being rubbed on a fanny-anny with cream, fast and hard.  The comment that you just made about – that this experience – this observation being unlikely unless it’s been experienced, does that apply to that as well?‑‑‑Yes.  I don’t think that a child would come up with that unless there’d been some experience to suggest it

8. In effect, the expert is saying that, based on her experience and expertise, and on the obvious assumption that the report attributed to the child is, in fact, correct, that the report was quite compelling in terms of the graphic description, which would be outside the experience of a child who hadn’t observed it.  This opinion entirely depends, however, on the court accepting that the record of the child’s disclosure is an accurate one. 

9. The cross-examination then moved on to the topic of the number of times that [K] was questioned about the disclosure, and her subsequent retraction of it.  This passage commences at page 116, line 34, and concludes at page 117, line 13:

   ­ ­ ­ and didn’t want to do that.  Do you have a comment to make about the number of times that [K] was invited, apparently on that day and in a relatively short space of time, to discuss this secret with different people?‑‑‑Yes.  I think that the – it’s obviously getting a tremendous amount of reinforcement, which – it’s unfortunate that it’s being handled in this way, but that’s how it happened.

   You’ll see, I think I’m now still on the second page of that diary, at the bottom left-hand corner an entry dated 5 May 2006, and it refers to [K] having said to the diary maker, the maternal grandmother, “Daddy never rubbed cream on my fanny-anny,” and then apparently to reiterate the earlier account of daddy’s willie getting big and fat?‑‑‑Mm.

   Do you draw anything – is there anything in your expert opinion that the court would need to be aware about that apparent contradiction?  This is a three-year-old child saying “why I didn’t say it,” and then expanding, as it were, on what she’s earlier said?‑‑‑I don’t know that we can put a great deal of store on that, because children often do make retractions on disclosures they’ve made, often become concerned and anxious.  It’s hard to know without observing the child and knowing, you know, what her mood state is like at this moment to be sure what’s going on.  But it could be accounted for by the child being anxious that she’s perhaps getting her dad into trouble and starting off to try and retract, and then getting caught up and actually talking about the whole thing again.  I think that’s really difficult to say without observing the child.

   Yes?‑‑‑But all I can say is that it would not be unusual for a child to become concerned and make a retraction.

10. The expert refers to what she obviously considered to be a significant amount of reinforcement of the child’s disclosures taking place in a short period of time, but discounts any significance of the child making a retraction of a disclosure previously made.

11. In the report, the expert observed [K] actually touching her genital area.  She was cross-examined about whether this was behaviour consistent with a child who had suffered sexual harm.  The extract commences at page 117, line 25, and concludes at line 44:

    And, on page 34, you refer to that, second paragraph from the top, Dr Q, the – this preoccupation with anal activities and with genital contact, and you say this is highly suggestive of a child who has suffered sexual harm?‑‑‑Yes.

    Would there be, on your knowledge of this case, any other possible explanations for that preoccupation in [K] at the time of your first report?‑‑‑Well, the fact that there’s a lot of energy being given to the issue by the family would be reinforcing.  So there may be an element of those ideas having been reinforced and the – I think [K] would be aware that there’s a lot of interest in what she’s saying.  But, nevertheless, I think the actual genital touching and so forth is particularly concerning.

    I’m still on page 34 of your first report, the last paragraph, is that still your view, there having been some time and some further material available to you since the first report, is it still your view that it’s not possible to conclude that the disclosures that have been made do not have a basis in reality?‑‑‑Yes.  I’d stick to that.  I think it may well be the case, and I think it often is, that you have – that both things are happening.  That a child is actually making some disclosures and that there is anxiety and reinforcement as well, but I don’t think that one necessarily negates the other, at all.

12. It is clear that the expert is of the view that [K]’s disclosures are not necessarily negated by the anxiety she was experiencing and the reinforcement to which she was subjected.

13. At page 121 of the cross-examination, the expert comments on the children’s belief about abuse and the impact of this on their contact with the father:

    In the context of the questions and your answers about the allegations that have been made with respect to disclosures by [K] in particular, but also [S], would this be, in your opinion, a correct proposition:  that the children appear to believe that those things happened?‑‑‑Yes, I don’t think there’s much doubt that the children believe that their father has harmed them in some way in the past.

    That being the case, is their psychological health going to be affected adversely in the long term if they do not have any more than a fairly cursory relationship with their father?‑‑‑Well, I think they need to feel that other adults in their lives are protecting them, because if they believe that they have been harmed, then they need to feel that other adults take that seriously and offer protection, so I think for that reason, it’s essential that contact be limited and that some sort of monitoring or supervision is involved so that they do have that faith in other adults.

    And is it your view that that monitoring should continue until, I think, the recommendation, Dr Q, is that they not spend time alone with the father until [K] is 11, and at that point, [S] would be about 14?‑‑‑Yes.

    Could I ask you, Dr Q, is there some significance in the age of 11 in that recommendation of yours?‑‑‑Yes, most children around age 11 are capable of mature thinking, so they’re capable of moral judgment and reasonably mature thinking.  Most children around 11 are capable of exercising protective behaviours, and if they have a sympathetic adult available, will report if there are any difficulties.

14. It’s clear from the expert’s perspective that, at age 11, most children are capable of exercising protective behaviours. 

15. It was also clear from the expert’s evidence, at page 123, that she believed that the best way for the children to maintain and develop the relationship with their father was for there to be time with the paternal family in which the father was also involved, rather than one-on-one time with the children.

16. In cross-examination by counsel for the father, the expert was given the opportunity to comment on a number of inconsistencies in the mother’s case to which I briefly referred in the background section of these reasons.  The expert concluded from the history given to her by the mother that she was not involved in another relationship, and not even considering it.  Thus, the children were her sole focus.  This was at the time of the first report, in 2008.  The expert was taken to documents produced on subpoena by the mother’s psychologist, Mr D, which suggested that the mother had, in fact, a number of relationships with different men in the period 2006-2008.  She was also given the opportunity to comment about the mother’s non-disclosure about being sexually abused as a child.  The passage in question commences at page 131 at line 12 and concludes at page 132 at line 18:

    MR BARRY:   The things that, Professor Q, you refer to in the first two paragraphs of page 26?‑‑‑I think if the mother’s, as I said, having a child in an uncommitted relationship, it’s certainly regrettable, and leaves her in vulnerable position, and then so soon after that to be in another relationship which seems to be in an uncommitted one.  I think the suggestion is that the mother may be really setting herself up for some difficulties in her life, and that she may have possibly poor judgment about her relationships.

    Yes.  And that judgment may extend to other matters, including her parenting?‑‑‑Well, if she’s setting herself up for difficulties in her life by being disappointed in relationships and, obviously, being left with a child to care for on her own, is quite a difficult outcome.  I think, obviously, her children are affected by that.

    And so if his Honour does find that there were relationships engaged in preceding the two that you refer to, that would be of greater concern, would it not?‑‑‑Well, if it’s suggesting that she’s making a series of poor choices, that does leave some concern about her judgment and possibly her capacity to protect herself from disappointments and, you know, difficult life circumstances.

    And if someone has been treated and may continue to need medication for anxiety and depression, that only compounds the situation, would it not, Professor Q?‑‑‑Well, obviously, if she’s having disappointing relationships then she’s unlikely to recover from depression and anxiety, and her life will not be easy for her.

    Yes.  Now, it’s also disclosed in the course of the perusal of Dr D’s notes, that the mother had been sexually abused as a child?‑‑‑Yes.

    Did you know about that?‑‑‑No, she didn’t discuss that.

    Would that have been something you had would have explored with the mother?‑‑‑I always ask about childhood trauma.

    Do you recall asking about childhood trauma of the mother?‑‑‑Yes, it’s a routine question.

    And there was no response?‑‑‑There was not a disclosure about sexual abuse, no.

    And she tells Dr D that some little time after the alleged disclosures were made, in fact on 5 June 2006, some four months after the initial disclosure, she met the perpetrator in a karate class?‑‑‑Yes.

    And that she felt ill again, but decided to continue.  Now, given the context in which that occurred, that would have been something that you would have taken note of, would it not?  As to her responses, given the context in which you were seeing her?‑‑‑Well, she didn’t tell me about it.  You mean she’d told me about it?

    Yes?‑‑‑Yes.  If she’d told me about it that would have been significant.

    So not only do we have the failure to disclose childhood trauma, but also the fact that the perpetrator of that trauma had confronted her in the midst of these tribulations, yes?‑‑‑Yes, I think that’s significant, because that suggests that, obviously, the memory would not have been – even if the memory hadn’t faded, it would have been revived by that experience.

17. The significance of this evidence is that it goes to whether the father has actually abused the children, or whether there is an unacceptable risk of such abuse.  To the extent that the evidence about the initial disclosures depend upon the mother, it presents a picture of the mother, at the relevant time, who was struggling with the separation, was making poor decisions about relationships and possibly parenting and was, possibly, as a result of her own previous experiences with sexual abuse, revived by a recent experience, providing a slanted view of disclosures, with a propensity to treat them as allegations of abuse perpetrated by the father. 

Notwithstanding this, is there a still unacceptable risk of abuse? 

1. Again, this question must be answered by reference to the proposals advanced by the parties.  The father proposes that his time with the children would be monitored by members of his family known to the children until [S] has turned 14 and [K] has turned 12.  In addition he proposes that all overnight time take place at the home of the paternal grandparents and that he not be permitted to remain there between

   
   9 pm

   and 6 pm until February 2014 at which time [S] will be nearly 14 (and therefore clearly capable of self protective behaviours) and [K] will be nearly 11 (and therefore, again capable of self-protective behaviours, according to the expert).  Whilst I cannot categorically eliminate any risk of abuse to the children, in the circumstances of this case I believe that the father’s proposal, supported by the Independent Children’s Lawyer, satisfactorily addresses any issues of unacceptable risk of abuse.  To put matters further beyond doubt, and to provide reassurance to the mother, I propose to take up a submission made by counsel for the mother in reply, in which it was suggested that the father also be restrained from being present when the children are in the bathroom, toilet or are dressing or undressing.  In addition, I think it will provide further reassurance to the mother if I make an order to the effect that the father is not to spend time alone with the children in any room in which the door is shut.  I believe that these further conditions on the father’s time will well and truly deal with any concerns about unacceptable risk of abuse, but also deal with a real issue in this case, and that is the mother and children’s belief about the abuse.

An order in the best interests of the children? 

1. Having regard to the matters set out above, are the orders that I propose in the best interests of the children irrespective of issues of unacceptable risk of abuse?  I believe that they are, for the following reasons.

2. I am satisfied that under the circumstances, the orders provide an opportunity for the children to have a meaningful relationship with their father.  I stress that the orders only provide the opportunity for this to happen, and whether a meaningful relationship will in fact continue to grow is dependent upon the quality of the father’s interactions with his children.

3. I am satisfied that the orders adequately protect the children from any form of harm, and from being subjected to or exposed to abuse.  I have found that there is no unacceptable risk of abuse on the basis of the father’s proposal, together with the enhancements I have referred to above.  By way of summary, the lack of evidence by the mother, the firm denials by the father, the inconsistent evidence of the grandmother, the absence of evidence by other third parties to whom disclosures were made, the retraction and then subsequent counter-retractions of disclosures by the children, and then the subsequent and fairly constant reinforcement of these concerns in the mother’s household, all lead to doubts about whether the abuse actually occurred.  However, the fact remains that detailed, graphic disclosures were made to a number of independent and expert witnesses, and the children are demonstrating behaviours including sexualised behaviours that are of concern.  Within that factual matrix, I am satisfied that any risk to the children is adequately managed on the father’s proposal and thus, there is no acceptable risk of abuse.

4. For the reasons I have previously outlined, I am not prepared to place any weight on views allegedly expressed by the children.  I think there has been far too much, albeit inadvertent, reinforcement in the mother’s household of her concerns about the allegations.

5. I am satisfied that, particularly since 2008, the children’s relationship with their father has improved to the level where they can sustain the sort of contact with him that is contemplated by the orders I intend to make.  Indeed, the children are very lucky in that they have an extensive family support network on both the maternal and paternal side.  Both families need to put the past behind them. 

6. I am not prepared to find that the mother lacks willingness and ability to facilitate and encourage the children’s relationship with their father.  I am impressed by the fact that she has continued to support all orders made by the court, and indicated in evidence a willingness to continue to abide by court orders, even at times when, in her own mind, she must have been overwhelmed by concerns about risks to the children.  I have no doubt she will abide by orders.  I am confident, moreover, that she will accept the protections that are inherent in the orders I propose to make.

7. I am satisfied that the changes that are proposed, particularly the introduction of overnight time, are not such as to adversely affect the children’s circumstances, or relationship with their mother and maternal family.  I am satisfied that the introduction of time is carefully phased in and that there are adequate protections in place.  I am satisfied that the children will feel that the protections that have been put in place sufficiently recognise the concerns they have expressed.

8. I am satisfied that there are no issues of practical difficulty and expense associated with contact.

9. I am satisfied that each parent has the capacity to provide for the needs of the children. 

10. I am satisfied that each of the parents has demonstrated an attitude towards the children, and to the responsibilities of parenthood, which is more than adequate under the circumstances.

Other points of difference in the proposals

1. There remain a number of smaller points of difference between the proposals of the mother and the father. 

2. At proposed order 8, the father seeks to be able to take the children away for short overnight holidays with members of his family, on not less than 30 days written notice to the mother, and on the basis that he sleeps separately from the children.  The mother objects to this.  She has concerns about how the children will cope with such an arrangement, and I agree.  On the father’s proposal, overnight time does not commence until July 2011, and it is not until January 2012 that contact commences on 9 am Saturday and concludes on 4 pm Sunday each alternate weekend.  The first condition, therefore, is that this short overnight holiday provision should not commence until 2 January 2012.  Furthermore, in order to avoid disputes about what is a “short overnight holiday,” I propose to restrict it to no more than three nights, being the equivalent of a long weekend.  I am satisfied, however, that the arrangements proposed by the father maintain the intent of the other protective aspects of the orders which will be put in place.

3. The mother opposes proposed order 11 which restrains her from discussing these proceedings or the allegations of abuse with the children.  I reject her concerns.  There is clear evidence of her involvement and the involvement of the maternal family, in reinforcing the allegations of sexual abuse with the children.  This must stop.  The order is a reasonable prohibition under the circumstances.

4. The mother opposes order 12 which requires that the children attend confidential counselling and that the mother facilitate the children attending on the same.  The mother’s concern is not clear.  If it is about the nominated counsellors, rather than the principle of the children attending counselling, then the matter is easily resolved by requiring the children to attend confidential counselling with a person nominated by the expert, Associate Professor Q.  There is no doubt in my mind, however, that the children would benefit from such counselling.  They have lived with these disclosures for over four years and most of that time has involved litigation between their parents.  They would clearly benefit from counselling.

5. The mother objects to the father’s proposed order 14 which provides for changeover at the mother’s home in the presence of a member of the paternal family.  The mother’s objection, or the mother’s alternative proposal, is unclear.  The existing changeover arrangements, which involve the presence of a member of the paternal family, seems to have gone well so far and, until the parties otherwise agree, it is in the best interests of the children that it continue. 

6. The mother has objections to the father’s proposed orders 16 and 17 which seek to restrain questioning of the children about the time they spend with the father.  The mother prefers that the prohibition be against “interrogating” the children.  One can understand the concerns of both parents.  I am satisfied the children have been unnecessarily exposed to and involved in the parental conflict and that there is a legitimate issue about questioning as to what happens during contact visits and yet, it is perfectly normal, and appropriate, for children to discuss the activities they have undertaken during contact visits with their other parent.  It is nearly impossible to find an appropriate formulation in these circumstances.  I believe the word “interrogating” would be too narrow.  I propose to insert the word “inappropriate” before the word “questioning” in both proposed orders 16 and 17.  There is only so much the court can do to regulate parents’ behaviour.

7. The mother objects to the father’s proposed 18 which requires her to ensure that the children are equipped with all medication during contact visits.  The mother says that if a prescription is supplied to the father, he should fill the same.  I find the mother’s attitude hard to understand, and somewhat petty on this point.  She has sole parental responsibility for these children which includes matters of medication.  That is the order she sought.  Why she now seeks to delegate an aspect of that to the father, in these limited circumstances, is not clear.  I propose to make order 18 in terms of that sought by the father.

8. The mother opposes proposed orders 21 and 22 which requires each of the parents to provide particulars of health services, schooling and sports information to the other.  Again, it is not exactly clear what the mother’s objection to these orders are.  In a situation where she has sole parental responsibility, I would have thought that these provisions are essential and reasonable in order to keep the father appropriately involved in the children’s lives.  I propose to make orders 21 and 22 in the terms submitted. 

9. The mother opposes proposed order 24 which would entitle the father, and members of his family, to attend all events involving the children, including sporting fixtures, extracurricular activities and school functions that allow for parental attendance or participation.  The mother’s initial position was that she simply sought to restrain the father’s attendance at these events.  During her cross-examination, however, it became apparent that her concern was about the father actually approaching her at these events.  This is a concern that may be addressed by way of drafting, but I otherwise believe it is in the best interests of the children, particularly in the circumstances of a case like this, that their father be permitted to attend these activities in circumstances where other parents might otherwise be there.  I propose to add the following restriction at the end of this order: “provided that the father is not to physically approach the mother at such events and must maintain a distance of 50 metres from her, where it is reasonably practicable to do so.”

10. The father proposes by way of notation (b) that the parents are to facilitate any wish expressed by the children to spend extended overnight times with the father, especially during school holiday periods.  I have reservations about this, on the same basis as my objection to empowering the children, on the mother’s proposal, to decide when the contact when should be extended.  For the reasons I that I have articulated in that context, I do not think that this provision, even in the form of a notation, is in the best interest of the children.

11. During the mother’s evidence, it became apparent that she had concerns about the contact orders not being suspended during school holidays periods, thus precluding her from having otherwise appropriate holidays with the children.  This is a legitimate concern, but needs to be balanced against the fact that the father’s contact with the children is quite limited.  I think an appropriate balancing of interest would be to suspend the father’s contact for one week of each of the midyear school holidays and for three weeks of the December/January school holidays, provided that the mother gives one month’s notice to the father that she will in fact be away on holidays with the children.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  3 November 2010

Schedule

Proposed Minutes of Order sought by the Mother

1. That the Mother have the sole parental responsibility for making decisions of a long term parenting nature in relation to the children [S] (born [in] 2000) and [K] (born [in] 2003).

2. That the children are to live with the Mother.

3. That the children spend time with the Father as follows:-

   (a)until the children attain the age of 11 years:

   i.each alternate Sunday from 9.00am to 5.00pm;

   ii.from 9.00am to 12.00noon on Father's Day;

   from 9.00am to 12.00noon on Christmas Day;

   from 9.00am to 12.00noon on birthdays (if a weekend);

   and provided that the Father's time be suspended from 9.00am to 12.00noon on [name omitted] birthday (being [date omitted]).

   iii.with all time that the children spend with the Father to take place in the presence of or close vicinity (not more than 15 metres) to a member of the paternal family. The Father shall not spend time alone with the children in any enclosed room.

   (b)upon either child attaining the age of 11 years:

   i.in addition to the time referred to in Order (a) (i) and (ii), such further times as the child proposes and which are agreed between the parents

4. That the parents are each to ensure that the other parent is kept informed as soon as reasonably practicable of:-

   (a)any serious medical problems or illness suffered by the children;

   (b)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;

   (c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (d)any social, school or religious functions which the children are to attend;

   (e)the telephone contact number of the parent;

   (f)any other matter relevant to the welfare of the children.

5. That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.

6. That each of the parents are to be permitted to liaise directly with the children's school(s) and sporting bodies to obtain any necessary information about the children's progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.

7. That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of children's school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

8. That the Father is to refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either of the children and that the Father is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence within the hearing of either of the children.

9. That the Mother is to refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either of the children and that the Mother is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence within the hearing of either of the children.

10. That both parents are to refrain from discussing these proceedings with either of the children or with any person in the presence or within the hearing of either of the children.

11. That in the event that either parents wishes to remove the children from the state of New South Wales, for a holiday period, they will notify the other parent, in writing, 72 hours before the trip of the proposed destination and a mobile or other telephone number that the other parent can be contacted on whilst the children are absent from New South Wales and a proposed return date.

12. Except as provided for in these Orders the Father is to have no other contact or communication with the children.

Proposed Minutes of Order sought by the Father

1. That, subject to the provisions of Order 2, the Mother have sole parental responsibility for the Children of the relationship namely [S] born [in] 2000 and [K] born [in] 2003, provided that the Mother notifies the Father of any long-term decisions made.

2. That the Mother be restrained from relocating the Children’s home or changing their schools without first providing the Father with 30 days written notice of her intention to do so; and that the Mother be restrained from relocating the Children’s home out of the [omitted] region.

3. That the Children live with the Mother.

4. That subject to the provisions of Orders 5, 6 and 7 the Children spend time with the Father:

   a.   From the making of these Orders until 30 June 2011:

   i.From 9.00am until 5.00pm Sunday for two out of every three consecutive weeks;

   ii.From 9.00am until 5.00pm on Father’s Day;

   iii.From 2.00pm until 8.00pm on Christmas Day;

   iv.From 12noon until 3.00pm on each of the Children’s birthdays when they fall on a weekend;

   v.From 9.00am until 5.00pm on the Friday of the first week of Term 1, 2 and 3 school holidays;

   vi.From 9.00am until 5.00pm on the Friday of two out of every three consecutive weeks in the Christmas school holidays;

   vii.At such other times as are mutually agreed between the parties.

   b.   From 1 July 2011 until 1 January 2012:

   i.From 9.00am Saturday until 11.00am Saturday each alternate weekend;

   ii.From 9.00am until 5.00pm on Father’s Day;

   iii.From 2.00pm until 9.00pm on Christmas Day;

   iv.From 12noon until 3.00pm on each of the Children’s birthdays when they fall on a weekend;

   v.From 9.00am until 5.00pm on the Wednesday of the first week of Term 1, 2 and 3 school holidays;

   vi.From 9.00am until 5.00pm on the Wednesday prior to each alternate weekend visit as set out in (i) above during the Christmas school holidays;

   vii.At such other times as are mutually agreed between the parties.

   c.   From 2 January 2012:

   i.From 9.00am Saturday until 4.00pm Sunday each alternate weekend;

   ii.From 9.00am until 5.00pm on Father’s Day;

   iii.From 2.00pm until 8.00pm on Christmas Day;

   iv.From 12noon until 3.00pm on each of the Children’s birthdays when they fall on a weekend;

   v.At such other times as are mutually agreed between the parties.

5. That the time the Children spend with the Father, pursuant to these Orders, be monitored by members of the Father’s family known to the Children until 1 March 2015, when the Child [S] has turned 14 and the Child [K] has turned 12.

1. That, subject to Orders 7 and 8 below, the times the Children spend overnight with the Father shall take place at the home of the paternal grandparents.

2. That the Father be restrained from staying overnight at the paternal grandparents home, whenever the Children are there, between the hours of 9.00pm to 6.00am, from the making of these Orders until 1 February 2014.

3. That in the event the Father proposes to take the Children away for short overnight holidays with members of the paternal family, he is to provide the Mother with no less than 30 days written notice, with such notice to include full accommodation and emergency telephone contact details. The Father is to ensure that he sleeps separately from the Children and does not approach the area in which the Children are sleeping between the hours of 9.00pm and 6.00am and the Children are to be accommodated with the paternal grandparents and/or another adult member of the paternal family known to the Children.

4. That the Children be at liberty to communicate with the Father by telephone at any time they express a wish to do so and in this respect the Mother shall be responsible to facilitate the Children communicating with the Father by telephone.

10. That the Father is to communicate with the Children by telephone on each Thursday at 6.00pm, with the Father to contact the Children on a telephone number provided to him by the Mother, and with the Mother to facilitate such telephone communication.

11. That the Mother be restrained from discussing these proceedings or the allegations of sexual abuse with the Children and use her best endeavours to ensure that no other person discusses these proceedings or the allegations of sexual abuse with the Children.

12. That the Children attend confidential counselling with Ms J or Ms M and that the Mother do all things necessary to facilitate the Children attending on those counsellors.

13. That both parents do all things necessary and sign all necessary documents to enrol in a Parenting After Separation Program with a view to considering how they may manage and improve parental communication in respect of issues pertaining to the Children.

14. That change over shall be facilitated by the Father collecting and then returning the Children from the Mother’s home in the presence of a member of the paternal family.

15. That the Mother continue to attend on the Mr D or such other health professional that she is referred to, to provide her with support and counselling to assist her to adjust to the Children spending time with the Father.

16. That the Mother be restrained from questioning the Children about the time they spend with the Father.

17. That the Mother use her best endeavours to ensure that no other person questions the Children about the time they spend with the Father.

18. That the Mother ensures the Children are equipped with all required medication including asthma medication during any time they are to spend with the Father.

19. That the parents are each to ensure that the other parent is kept informed as soon as is reasonably practicable of: -

a.   Any serious medical problems or illness suffered by the Children;

b.   Any medication that has been prescribed for the Children that needs to be taken during the time the Children are with the other parent;

c.   Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Children;

d.   Any social, school or religious functions which the Children are to attend;

e.   The telephone contact number of the parent;

f.   Any other matter relevant to the welfare of the Children.

20. That the parents are to communicate about the Children in writing, by email, via SMS, with the assistance of an adult member of the paternal family and/or via any other means as is agreed to between the parents.

21. That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the Children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Children.

22. That each of the parents are to be permitted to liaise directly with the Children’s school(s) and sporting bodies to obtain any necessary information about the Children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.

23. That both parents are to provide the necessary authorities to the Principal of each school attended by the Children to ensure that the school forwards to both parents copies of the Children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

24. That each parent and member of their respective families is entitled to attend all events involving the Children including, but not limited to: -

a.   Sporting fixtures;

b.   Extra curricular activities that allow for parental attendance or participation;

c.   School functions and events that allow for parental attendance or participation – AND the parent who has the Children in their care on the day of such activity will be responsible for the day to day care of the Children at such event including the Children’s transportation to and from the event unless otherwise agreed upon between the parents.

25. That both parents are to be restrained from making critical or derogatory remarks about the other parent or members of their family in the presence of within the hearing of either of the Children and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of either of the Children.

26. That in the event that either parent wishes to remove the Children from the state of NSW for a holiday period, they will notify the other parent in writing, no later than 72 hours before the trip of the proposed destination, a mobile or other emergency telephone contact number and a proposed return date.

NOTATION

A.     The paternal grandparents collectively and severally undertake to return the Children to their Mother at the first reasonably appropriate opportunity in the event of one or both of the Children becoming and remaining unduly distressed.

B.     That the parents are to facilitate any wish expressed by the Children to spend extended overnight times with the Father, especially during school holiday periods.

Proposed Minutes of Order Sought by the Independent Children’s Lawyer

1. That, subject to the provisions of Order 2, the Mother have sole parental responsibility for the children of the relationship namely [S] born [in] 2000 and [K] born [in] 2003.

1. That the Mother be restrained from relocating the children’s home or enrolling either of them at a new school without first providing the Father with 30 days written notice of her intention to do so.

1. That the mother advise the father in a timely manner of any other parenting decisions she makes pertaining to major long-term issues for the children, and keep him advised about their state of health and general welfare.

1. That the children live with the Mother.

1. That subject to the provisions of Orders 6, 7 and 8 the children spend time with the Father:

A.     From the making of these Orders until 30 June 2011;

(i)From 9.00am until 5.00pm Sunday for two out of every three consecutive weeks;

(ii)From 9.00am until 5.00pm on Father’s Day;

(iii)From 2.00pm until 8.00pm on Christmas Day;

(iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

(v)At such other times as are mutually agreed between the parties.

B.From 1 July 2011 until 1 January 2012:

(i)From 9.00am Saturday until 11.00am Sunday each alternate weekend;

(ii)From 9.00am until 5.00pm on Father’s Day;

(iii)From 2.00pm until 8.00pm on Christmas Day;

(iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

(v)At such other times as are mutually agreed between the parties.

C.From 2 January 2012;

(i)from 9.00am Saturday until 4.00pm Sunday each alternate weekend;

(ii)From 9.00am until 5.00pm on Father’s Day;

(iii)From 2.00pm until 8.00pm on Christmas Day;

(iv)From 12noon until 3.00pm on each of the children’s birthdays when they fall on a weekend;

(v)At such other times as are mutually agreed between the parties;

1. That the time the children spend with the Father, pursuant to these Orders, be monitored by members of the Father’s family known to the children until 21 February 2014.

1. That all times the children spend overnight with the Father shall take place at the home of the paternal grandparents or such other place as is mutually agreed between the parents, until after 21 February 2014.

1. That the Father be restrained from staying between the hours of 9pm to 6am at any place where the children are staying overnight including but not limited to the paternal grandparents home, until after 21 February 2014. 

1. That the children be at liberty to communicate with the Father by telephone at any time they express a wish to do so and in this respect the Mother shall be responsible to facilitate the children communicating with the Father by telephone.

10. That the Mother be restrained from discussing these proceedings, including but not limited to the allegations of abuse, with the children and use her best endeavours to ensure that no other person discusses these proceedings or the allegations of abuse with the children.

11. That the children attend confidential counselling with Ms J or Ms M or such other counsellor as is recommended by Dr Q, and that the Mother do all things necessary to facilitate the children attending on one of those counsellors.

12. That both parents do all things necessary and sign all necessary documents to enrol in a Parenting After Separation Program with a view to considering how they may manage and improve parental communication in respect of issues pertaining to the children.

13. That change over shall be facilitated by the Father collecting and then returning the children from the Mother’s home in the company of a member of the paternal family known to the children or arranging for them to be collected and returned by a member or members of the paternal family known to the children.

14. That the Mother continue to attend on the Mr D or such other health professional that she is referred to, to provide her with support and counselling to assist her to adjust to the children spending time with the Father as provided by these Orders. 

15. That the Mother be restrained from questioning the children about the time they spend with the Father.

16. That the Mother use her best endeavours to ensure that no other person questions the children about the time they spend with the Father.

17. That the Mother ensures the children are equipped with all required medication including asthma medication during any time they are to spend with the Father.