When parents toxic towards each other and judge still awards equal time…

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Reddin & Bickett [2022] FedCFamC1F 910

REASONS FOR JUDGMENT

KARI J

Introduction

These proceedings relate to the parties’ two children X (born 2014) (“X”) who is presently aged 8, and Y (born 2016) (“Y”) who is presently aged 6.
Sadly for these children, they have been embroiled in the most bitter of disputes between their parents for almost the entirety of their young lives.
Final Orders were made to regularise the parenting arrangements for the children on 4 April 2017. However these current proceedings are the second time that the parenting arrangements have returned to the Court since the making of the Final Order.
The apparent mutual disrespect that each of these parents have towards each other and their respective roles in the lives of their children, coupled with their mutual inability to comply with orders of the Court has ensured that these children have not seen a moment of relief from exposure to the acrimonious cross fire of their parents.
Overlaying all of this, the mother has made two separate allegations of sexual abuse by the father towards the children. The most recent of the allegations has arisen in the context of the current round of litigation. Each of the allegations have been investigated by Child Protection Services (“CPS”), including forensic interviews of both children. Whilst not conclusive of any allegation of sexual abuse, each of those processes have resulted in no further action being taken by CPS.
What became evident throughout the trial process however, is that almost every independent expert that has had dealings with these children and the parents, has formed a very dim view of the parents, their levels of conflict, and their enmeshment of the children in their dispute. Of particular significance for present purposes is that this conclusion has been reached by both the Court Child Expert, Ms G who has prepared two reports in the matter over the entirety of the litigation in the Court, and CPS who have conducted two separate investigations.
In circumstances where the current litigation is the third occasion the Court has contended with this family within a relatively short space of time, a very significant concern exists that unless these parents are able focus on their children rather than the entrenched warfare that they are engaged in, there will be further litigation in the future. If that were to occur, these children will never come out from under the storm clouds that their parents have created.
The Court can only hope that the trial process these parents have now endured, will result in each of the parents putting aside their personal animosity for each other so that they finally reach a point where they are able to prioritise their children’s needs.
Background

The current set of proceedings were commenced by the mother on 20 February 2020 in circumstances where the father had retained the children in his primary care.
The father’s retention of the children was despite a Final Order made by consent between the parties on 4 April 2017. That order provided for the children to live with the mother and spend time with the father on a gradually increasing basis commensurate with the children’s ages.
From the time that the current tranche of proceedings commenced in February 2020, the level of dispute between the parents has been relentless. There has been no less than six contested interlocutory applications and 15 separate hearings prior to the trial hearing.
Throughout the current tranche of the parenting proceedings, the matter has come before me on each and every occasion. Firstly in the Federal Circuit Court (as it was then known) when I was a Judge of that Court, and in more recent times in this Court following my appointment in October 2021.
On 5 February 2021 I delivered lengthy reasons in the proceedings (Reddin & Bickett [2021] FCCA 3, “the February decision”). Given the detail that I set out in those reasons as to the background of the litigation to that point, I do not propose to repeat those matters other than in a summary fashion. Accordingly these reasons should be read together with the February decision.
In short summary, the events which led to the mother instituting the current proceedings came about after the father determined that he would retain both children in his care. The father asserts that he retained the children as he was concerned about the mother having unknown men in her home while the children were present and because of his concern that the mother was consuming illicit substances.
Shortly after the mother commenced these proceedings, and prior to the first hearing of her application, she was able to return X into her primary care by removing her from school and retaining her.
It was not until after the first hearing on 7 April 2020 when the Court made orders for the father to return Y to the mother’s care, that the children were reunited with each other in the mother’s primary care.
The children have effectively remained in the mother’s primary care since that time.
There has however been varying degrees of compliance with orders for the children to spend time with the father. In the main however, the children have spent very little time with the father since the children were returned to the mother’s primary care in April 2020.
Matters came to a head on about 17 August 2020 in the context of these proceedings and during the mother’s appointment with the family consultant Ms G for the purposes of a preliminary assessment enabling the preparation of a child dispute conference memorandum. During that process the mother made an allegation of sexual abuse perpetrated by the father towards Y.
As a consequence of this allegation, the mother thereafter did not facilitate the children spending time with the father.
The Court heard lengthy argument in the matter across hearings in September, October and December 2020, and again across late January / early February 2021. It is these hearings which resulted in the February decision delivered on 5 February 2021.
At the time of the February decision, the father was asking the Court to make orders that effected a change of the children’s living arrangements from the mother to the father. Whereas the mother variously proposed to either suspend the father’s time with the children, and/or reduce the father’s time such that it be day time only and/or that all time be supervised.
At the time of the February decision, the Court had regard to a range of allegations and risk factors that had been raised by each of the parties, including but not limited to:

(a) The mother’s most recent allegation of sexual abuse, allegedly perpetrated by the father towards Y;

(b) Allegations of family violence within the mother’s household, and in particular by her new partner Mr M; and

(c) Allegations of the mother’s inability to support the children having a meaningful relationship and/or time spending with the father.
In addition:

(a) The Court had the benefit of preliminary information regarding the allegations of sexual abuse, together with the benefit of records from the DCP and SAPOL; and

(a) The mother gave oral evidence and was the subject of cross examination during the interlocutory hearing process.
In the February decision I made comment about the recent allegations of sexual abuse:

100. At this juncture, and for all of the reasons that I have discussed, I have some significant reservations about the allegations made by the mother, and I am unable to form the view that the father presents an unacceptable risk of sexual abuse, nor even a risk of sexual abuse.
In addition I held concerns about family violence within the mother’s household which only came to light during the hearing process, and not as a consequence of any disclosure or candour on the mother’s part, commenting:

118. When I combine all of this information together, I am left with the distinct impression that the mother has not been entirely forthcoming about the circumstances in her own household until forced to make some acknowledgements during her oral evidence at the hearing on 3 February 2021. That being said, there remain some concerning inconsistencies between the mother’s oral evidence and the record, particularly that of 14 August 2020;

119. Moreover, the matters which I have just summarised give me some cause for concern that there are elements of risk in the mother’s household, particularly so far as their exposure to family violence is concerned, and possibly that they may themselves be at risk of physical harm from [Mr M] given the alleged disclosure by [Y] about having a stool kicked from under her causing her to “face plant” on the tiled floor.
In the end, the overwhelming concern at the forefront of my mind at the time of the February decision was that the children were not at that time spending time with the father. In that regard I determined:

122. … it is appropriate that the father’s time with the children resume as a matter of some urgency, and that the time include day-time and overnight time spending.

…

126. … it is appropriate to not only reinstate the father’s time immediately in a more fulsome way, but in addition for that time to go beyond that which the 2017 orders provided.
The consequence of the February decision was that orders were made providing for the children’s time with the father to immediately resume, and for time spending between the father and the children to take place on a more frequent basis than that which the parties had agreed when the Final Orders were made on 4 April 2017.
In essence the orders that were made on 5 February 2021 provided for the children to live with the mother and to ultimately spend time with the father each alternate weekend from 4pm Friday until the commencement of school Monday, and in addition each alternate Thursday from the conclusion of school until the commencement of school Friday. The effect of those orders was a regime that provided for the children to spend time with the father across four nights each fortnight, and that they otherwise continue to reside in the mother’s primary care.
In addition the tranche of orders made on 5 February 2021, included orders for the preparation of a family assessment report, by the Family Consultant, Ms G. Ms G was identified as the expert in the matter as she had prepared a short form report in the current proceedings on 17 August 2020 pursuant to section 11F of the Family Law Act, and it was to Ms G that the mother first made disclosures of the allegations of abuse in the context of these proceedings.
Unfortunately, on 1 April 2021 and within very short compass of the resumption of the father’s time with the children which commenced on 12 February 2021, the mother filed an application in which she sought to suspend the orders made on 5 February 2021 until such time that the father provided the mother with his residential address. This particular issue had been a feature of the dispute between the parties prior to the February decision, and had resulted in the Court making orders on 19 June 2020 requiring the parties to keep each other informed of their respective residential address at all times.
The mother’s application came before the Court on 30 April 2021. During the course of that hearing the Court made enquiries with the co-located officers situate within the court from each South Australia Police (“SAPOL”) and the Department of Child Protection (“DCP”), and was provided with information. The information obtained by the Court on 30 April 2021 included advice that there had been four reports to SAPOL and two notifications to the DCP since the February decision. In broad terms, the information obtained by the co-located officers raised concerns about ongoing family violence in the mother’s home. These concerns were again matters which had been raised previously in the proceedings and were a focus of the February decision.
Ultimately a raft of orders were made on 30 April 2021 listing the matter for a further interim hearing on 28 July 2021. In addition orders were made on 30 April 2021 pursuant to section 69ZW of the Family Law Act directed to both SAPOL and the DCP for the release of more fulsome information in relation to the parents and each of the children.
When the father filed documents responding to the mother’s application to suspend his time with the children, principal amongst the orders that he sought was that there be a suspension of all previous parenting orders and that the children live with him and spend supervised time with the mother.
It appears undisputed that from approximately 29 April 2021 (the day before the mother’s application to suspend the father’s time first came before the Court, and prior to any determination of that application), the mother ceased complying with the orders for the children to spend time with the father.
On 25 June 2021, the Family Consultant Ms G provided her Family Report (“the Family Report”).
The Family Report made for concerning reading for a number of reasons, not least of which was that at the time of their appointments with Ms G on 28 May 2021, the children had still not spent any time with the father.
Principally Ms G identified that:

40. The primary issue in this matter is what parenting arrangements need to be put in place for a seemingly ‘battle worn’ [X] and [Y] to be able to have a relationship with each of their parents in the context of the mother having a seemingly fixed belief that the children are unsafe in the father’s care, and the father having a seemingly fixed belief that the mother will stop at nothing (including making false allegations about him) to prevent him from having a relationship with the two girls.

120. The history of this matter would seem to indicate that both parents have been equally at fault in their weaponising of the children against the other as they spar with each other, either by withholding the girls, or by actively involving or exposing the children to adult issues and information, or through interrogation of the girls (especially [X]) for information about the other household, or be (sic) responding to alleged disclosures the girls have made about the other parent, seemingly in order to discredit the other parent for the purpose of these proceedings.
In addition Ms G appeared to form an opinion that:

(a) The mother appeared to be exerting some influence over the children so far as any time spending with the father was concerned; and

(b) Both parent’s appeared incapable of acknowledging the impact of their own behaviours on the children.
During the assessment process, the children were however able to interact with the father. Ms G described the children’s interaction with the father and the aftermath in summary in the following terms:

(a) The children’s observed interactions with the father after a 6 week hiatus of not having seen him revealed “no anomalies” and concluded with both children playing a game with the father which included the girls “lying on top of their father on an exercise ball, giggling as their father rolled one way then another before they all crashed on the floor”.

(b) The child Y attempted to leave with the father after the children’s observed interaction session with him.

(c) When the mother was advised as to the children’s positive interaction with the father, and Y’s particular desire to spend time with him, the mother “seemed disbelieving and responded that the father was a ‘consummate manipulator’, implying that the children’s responses and behaviours during the observation could not be relied upon as a reflection of how they truly felt about their father, as their father would have ‘charmed’ them.”

(d) After the father had left the observed interaction session, the child Y was “sobbing” and had squashed herself under Ms G’s desk as she was wanting to spend more time with the father.

(e) The mother was unable to appropriately respond to Y’s distress at wanting to spend time with her father, which prompted X to “step up and problem solve the situation by getting [E] [the father’s older child] on the phone for him to hand his phone to the father, so that [Y] could speak to him. However, instead of placating [Y], [Y] distanced herself from the phone, whilst complaining aloud to her mother that she wanted to go with her father, not speak to him, adding tearfully, “Mummy I wanted to go with Dad yesterday… I wanna (sic) go to his house”. [Y]’s irritability and sadness seemed exacerbated by hearing her father’s disembodied voice from the speaker phone asking, “what’s going on… is everything okay… I love you.”

Following the appointments with each of the parents and the observed interaction sessions, Ms G provided feedback to the parents that the children’s time spending with the father must resume. On receiving that feedback, Ms G reported that both parents appeared committed to the resumption of the father’s time as and from the following weekend. However, when Ms G made enquiries of the mother after the weekend time was to have resumed, she learnt that the time spending had not taken place. It then became apparent to Ms G that the mother allowed the child X to sabotage the time spending occurring. In addition, the mother advised Ms G that she had taken the child Y to her “[alternative medicine] spiritual leader” following her observed interaction with the father as “[Y] was possessed by a negative spirit… the girl I brought in to see you was not the girl I left with… my spiritual leader had a hard time of getting rid of it… [Y] was in a trance like state… her eyes go completely black… no light in her eyes.”

Most concerning however were the opinions variously expressed by Ms G throughout her report, including:

39. This assessment raised concerns about the negative impact on the children of the longstanding acrimonious and litigious relationship between the parties over the past 6 years, as evident by signs of splitting between the two girls, with [X] seeming to align herself with her mother, and [Y] with her father.

137. … Should the current dysfunctional dynamic in the relationship between the parties continue, the writer holds significant concerns for the future of both girls’ relationship with the father, and for their future emotional wellbeing, as they are likely to struggle with issues of identity and rejection during adolescence and early adulthood. However, the writer holds similar concerns if the girls do not have a relationship with their mother…It is hoped that the parties will both process their unresolved feelings about their relationship in a way that spares the children from the ongoing burden of repeatedly being placed in a position at handovers to have to choose between them.
Ultimately Ms G concluded that:

124. Whilst it is difficult to envisage a workable parenting arrangement that might relieve the children of the distress and trauma they appear to be experiencing from their parents’ seemingly mutual inability to implement a consistent conflict free parenting regime or foster the girls’ relationships with both parents, it seems clear that whilst the children remain living with their mother, they will not have a relationship with their father, even with orders in place…
Following the release of Ms G’s report, and given the intractable nature of the dispute, on 28 July 2021 the proceedings were transferred to the Family Court of Australia for Trial at “the earliest convenience of the Court”.
The matter next came before me in Division 1 of the Federal Circuit and Family Court of Australia on 16 December 2021. On that day, the proceedings were given the present trial listing.
At that hearing, it appeared that the children were still not spending time with the father, despite the orders made on 5 February 2021 and the contents of the Family Report of 25 June 2021.
In his trial affidavit, the father deposed that he stopped attending handover for the children in approximately September 2021 “because of the mother’s ongoing manipulation of the children”, and to avoid the children being placed in a position of having to verbalise to the father their refusal to attend time with him.
While the father’s decision at first blush appears to be child focussed, unfortunately the inability of the parties to effectively communicate, resulted in that child focussed decision likely inflicting further damage on the children. This is because it is now clear to the Court that the father did not advise the mother that he would not be taking his time with the children until sometime just prior to the Court hearing on 16 December 2021. As a result, the Court understands that the mother continued to facilitate the children’s attendance at handover for a period of time between September and 14 December 2021. The Court can only opine as to the children’s confusion on each and every occasion that they were taken to handover by the mother, only to discover that the father was not present.
At the hearing on 16 December 2021 I conveyed to the parties the serious concerns I held over the inability of the parties to comply with the orders for the children to spend time with the father. In an effort to deal with the mother’s assertions that the children were refusing to spend time with the father, orders were made to facilitate time spending between the children and the father on the following basis:

(a) Firstly, that the parents immediately enrol in the supervised handover program run by U Services.

(b) Secondly that all handovers of the children occur at the contact service.

(c) Thirdly, that pending acceptance and commencing handovers at the service, handover of the children occur between the father and one of either the maternal grandfather, the maternal grandmother, the maternal aunt or the maternal uncle.

(d) Fourthly, that the mother be restrained from attending within a 5km radius of the handover location.
Events in the lead up to and during the trial

While both parties were present at the hearing on 16 December 2021, and appeared committed to facilitating the children spending time with the father in accordance with the Court’s orders, it is now apparent that the handover at the contact service for the children’s time spending with the father did not commence until 25 February 2022. This turn of events is strikingly similar to that which Ms G identified when she urged the parties, and in particular the mother to facilitate the children’s time spending with the father following the conclusion of her interviews for her report in late May 2021.
Having heard the oral evidence of the parties, I am satisfied that the delay in the parties utilising the contact service is as a result of the mother’s unsatisfactory and calculated decision to post her enrolment forms to enrol in the service, as against providing them to the service by email or some other more efficient lodgement process that would have enabled the service to be utilised as quickly as possible.
What was all the more galling about this aspect of the mother’s evidence is that she sought to justify her actions in posting the forms by commenting “To be honest I guess I didn’t think, I’m not big with using emails”. However I have difficulty accepting this explanation from the mother, in circumstances where earlier in her oral evidence she indicated that she operated at least 4 different email accounts and that those accounts had variously been used by her to communicate with the father. I therefore do not accept the mother’s assertions that she “didn’t think”. Rather I am satisfied that the mother’s conduct was calculated to ensure there was another roadblock preventing the children from seeing the father.
The Court now has the benefit of the reports from the contact service from attempts at handover on each 25 February 2022 and on each 3, 17, 25 and 31 March 2022. What can be understood from those reports is that:

(a) X refused to attend with her father on each and every occasion; and

(b) Y attended with the father on only one occasion, being 17 March 2022.
While the Court did not have the benefit of oral evidence from any of the workers from the contact service, any plain reading of the reports makes it clear that the service did not attempt to encourage the children to separate and spend time with the father. Instead it appears that the service accepted, without question, the children’s (and particularly X’s) refusal to attend time with the father. This interpretation of the reports from the service is one that Ms G also came to, and was conveyed to the Court during her oral evidence.
In addition to the reports from the service, the Court also had the benefit of an affidavit from the maternal grandfather, who facilitated handovers outside of the attempts at the contact service. In that affidavit, the maternal grandfather identified that on the occasions when he had attempted to facilitate the handover of the children to the father, the child X refused to attend on every occasion, whereas the child Y occasionally agreed to spend time with the father.
Despite all of these combined attempts, the state of affairs at the time of trial was that the children had still not spent any meaningful time with the father from effectively April 2021, a period in excess of twelve months. In addition, any time spending that had occurred, had only taken place between Y and the father, resulting in the separation of the two siblings. The effect of this lack of time spending compounded the hiatus of time spending that had occurred between August 2020 and February 2021.
The mother in her sworn evidence, and during the course of her oral evidence insisted that the children’s refusal to spend time with the father was not as a consequence of her actions or influence, but rather as a consequence of the children being “scared”, and in particular scared that the father would retain them and not return them to her, as he had done in February 2020.
During the course of the trial hearing, my concerns about the mother’s conduct and her inappropriate levels of influence over the children grew.
As a result across 11 and 12 May 2022 the following orders were made of the Court’s own motion:

(a) Firstly, on 11 May 2022 an order was made for the mother to deliver the children to the Court’s child care service just prior to the resumption of the trial hearing in the morning of 12 May 2022.

(b) Secondly, at the conclusion of the mother’s evidence on 12 May 2022, orders were made for the children to spend time with the father from the conclusion of the hearing on 12 May 2022 until the commencement of school the following morning.

(c) Finally, an order was made pursuant to section 65L of the Family Law Act for Ms G to supervise and observe the handover of the children to the father, in the absence of the mother.
The Court understands from the oral evidence of both Ms G and the father, who gave consistently similar accounts, that on 12 May 2022 the children left the Court precinct with the father without any undue apprehensions or distress; aside from an initial level of confusion and reluctance from X which quickly resolved.
This turn of events during the trial was insightful, as it gave me, and indeed Ms G some understanding of the influence of the mother towards the children’s attitude and willingness to spend time with the father.
While the father gave evidence that on the way home from the Court, X had an emotional outburst when passing the turn off to the mother’s home, from my perspective (and one shared by Ms G), this outburst was hardly surprising given all of the circumstances that had existed to that point for these children.
What was pleasing however was that during his oral evidence the father was candid about X’s outburst and his attempts to manage the situation that had developed. Having heard that evidence, I am satisfied that the father dealt with the children, and in particular X in an appropriate, child focused manner, including but not limited to:

(a) Taking the children to get some treats when they left the Court building, including items to be gifted to the mother.

(b) Responding to X in a firm manner when she had an outburst, including addressing her levels of distress and attempting to take the pressure off X by focussing her mind on seeing her sibling E, rather than making the evening about the father and their time together.

(c) Reassuring both children that they would be taken to school the following morning and that the mother would be attending to provide their uniforms and the things that they would need at school the following day.
As it turns out, at the conclusion of the trial on 16 May 2022 and despite there being only one period of both children spending time with the father in over a year, the parties both proposed a time spending regime between the children and the father pending delivery of judgment. Whilst the father proposed a more significant time spending regime than the mother, the Court ultimately made orders pending the delivery of judgment for the children to spend time with the father each alternate weekend from the conclusion of school Friday until the commencement of school Monday, together with one half of each school holidays.
Since the making of that time spending order on 16 May 2022 neither party has sought to bring the matter before the Court or to adduce any further evidence. As a result, at this juncture it is open for me to infer that:

(a) The children have spent time with the father in accordance with the orders made on 16 May 2022; and

(b) The children’s time spending with the father has proceeded without any significant incident.
The competing proposals of the parties

The competing positions of the parents are polarised. Each of the parents seek final orders for the children to live with them and that they have sole parental responsibility.
In addition the mother asks the Court to make a range of further orders, including:

(a) That the father and the children participate in “reconnection counselling”.

(b) That subject to the counsellor’s advice, the children resume spending time with the father each alternate weekend from Friday until Sunday, and each intervening Thursday from 4pm until 7pm, together with times on special occasions.
The additional orders that the father asks the Court to make include:

(a) That the children do not spend any time with the mother following the making of a final order for a period of time up to 6 months (modified down to only a couple of months during his oral evidence), and that thereafter the children and the mother undergo reunification therapy.

(b) That the mother undertake a “psychiatric evaluation”[1] with Psychiatrist Dr V.
[1] Amended Response to Final Orders filed by the father on April 2022, paragraph 5.

The position of the Independent Children’s Lawyer was more balanced and essentially in line with the overall sentiments expressed by Ms G, namely that the children maintain a meaningful relationship with both of their parents.
By the time of her closing address, counsel for the ICL promoted orders based on two alternatives:

(a) Firstly that the children live with the mother and spend alternate weekends with the father;

OR in the alternative

(b) That the children live with the parties in a week about shared care arrangement.
The legal framework

Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the Court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the Court must have regard to the aims of the legislation set out in section 60B(1), which provides as follows:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underpinning the aims of the legislation are contained in section 60B(2) which provides:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interest, the Court is to have regard to a long list of considerations set out in section 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the Court is to give greater weight are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(i) to participate in making decisions about major long term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.
The legislative pathway to be adopted in a parenting case has been considered by the Full Court in Goode & Goode (2006) FLC 93-286.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.[2]
[2] Family Law Act 1975 (Cth) s 61DA(2).

Family Violence is defined in section 4AB of the Act as follows:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption as to equal shared parental responsibility is rebutted, then the Court is required to make orders that are in the child’s best interests with reference to those factors set out in section 60CC.
The evidence

During the course of the trial, the Court heard evidence from both of the parties.
The mother also relied on evidence from her father, the maternal grandfather.
The Court otherwise had the benefit of expert evidence from the Family Consultant Ms G, who had prepared two reports in the current litigation, the first being a Child Dispute Conference Memorandum dated 17 August 2020 and the second being her more detailed Family Assessment Report dated 25 June 2021. In addition, Ms G supervised the handover of the children to the father at Court on 12 May 2022, together with observing the children in the Court’s childcare service earlier that same day when the child care worker was on a lunch break.
In addition, the Court had the benefit of a number of affidavit’s filed by the ICL annexing various material which had been obtained from the DCP, SAPOL, CPS, the children’s school (W School), and the Children’s Contact Service.
Accordingly, the following documents were before the Court:

(a) The mother’s Trial Affidavit filed 31 March 2022;

(b) The mother’s further Affidavit filed 22 April 2022;

(d) The father’s Amended Response filed 14 April 2022;

(e) The father’s Trial Affidavit filed 14 April 2022;

(f) The affidavits of the ICL variously filed on each 27 August 2020, 18 December 2020, 18 January 2021, 28 June 2021, 11 January 2022 and 4 May 2022;

(g) The reports of Ms G prepared 17 August 2020 and 25 June 2021.
Having regard to all of the material before the Court and having heard the oral evidence of both parents, the overwhelming impression that I formed during the trial was that both parents were keen to deflect blame and justify their actions.
The father was disarmingly open in his oral evidence, at times making jarring admissions in a casual fashion. Three examples of such admissions were:

(a) That the safety of the mother was not his concern. This was jarring as it appeared that the father had little regard for the mother’s role in the lives of the children, and the distress and emotional impact on the children if the mother was not physically safe.

(b) A tranche of evidence which illustrated the lengths the father had gone to on social media to contact, dissuade and threaten a new partner of the mother (Mr Z). The exchange with Mr Z included the father advising Mr Z “Give her as much smoke as ya like when my kids ain’t there and preferably [D] ain’t there either hey because in its self doing that in the house with [Ms Reddin] while my kids are there is enough for me to get your legs broken!”. The exchange with Mr Z culminating in Mr Z indicating to the father that he had “blocked and deleted” the mother so that she could no longer contact Mr Z.

(c) The father’s admissions that he had called the mother a “shit parent” and a “fucking slut”.
The mother on the other hand was far more complex in her presentation, as she often failed to remember events, and/or sought to distance herself from her own poor behaviour. Of most concern however is that numerous inconsistencies arose in the mother’s version of events. Examples of such inconsistencies include but are not limited to her allegations of sexual abuse and matters pertaining to family violence with her former partner Mr M. I have come to the conclusion that the mother was calculated in her evidence and her apparent lack of memory. The combination of these factors make it difficult to accept the mother’s evidence on topics of significance discussed in the reasons that follow.
The allegations made by each of the parties

As identified earlier in these reasons, several allegations have been made by each of the parties in the course of the current tranche of the proceedings.
Principal amongst those allegations are those relating to disclosures said to have been made by the children in relation to the father’s alleged sexual abuse of the child Y.
In addition there have been further allegations, including:

(a) An allegation by the mother that the children are scared of the father;

(b) An allegation by the father that the mother consumes illicit substances;

(c) An allegation by the father that the mother has exposed the children to family violence and that she is unable to protect the children from family violence in her home;
While it is not essential that the Court determine these allegations[3], an analysis of all of the evidence before the Court makes it possible for findings to be made about each of these allegations.
[3] M v M (1988) 166 CLR 69.

In addition, given each of the parents ask the Court to make orders granting them sole parental responsibility, it appears that attempting to resolve the parties competing allegations will serve to inform the determination of that question and those factors identified in s 60CC of the Act.
The mother’s allegation of sexual abuse

As identified earlier in these reasons, the first time the most recent allegations of sexual abuse became known to the Court and the father was during the Child Dispute Conference process that took place on 17 August 2020. In the memorandum subsequently prepared by Ms G bearing the same date, she variously recorded:

10. The father reported that the mother failed to bring the girls for court ordered time with him since 13/08/2020 such that he is filing an urgent application for delivery up of the girls. The mother confirmed that she had withheld the girls after [Y] disclosed to her that her father was sexually touching her.

12. … the mother’s current concerns that the father is touching (“tickling [Y]’s vagina”) [Y], which the father categorically denies. The father reported that he had received “a couple of phone calls from parents at the school who advised him the mother was alleging that he was touching the girls…

17. Allegations by the mother that [Y] has recently disclosed that her father touches her on the vagina. The mother reported that [Y]’s night terrors and traumatised postures have ceased since [Y] confided in her what the father had been doing and since [Y] had stopped spending time with her father.
The allegations of sexual abuse became a feature of the February decision. In light of the information before the Court at that juncture, I held very significant “reservations” about the veracity of the allegations that had been made, particularly when regard was had to the timing of the allegations with regard to the father’s time spending.
The independent material before the Court at the time of the February decision included:

(a) The previously identified memorandum of Ms G dated 17 August 2020; and

(b) Correspondence from the DCP dated 20 August 2020 and 16 September 2020, the latter of which was identified in the February decision to record:

Subsequent to the information provided to you on 20 August 2020 it is noted that the department have received one further child protection notification. The notification received on 23 August 2020 alleged that [Y] was taken to the doctor with concerns that she had been touched on the vagina by the father. The notification alleged that there were no disclosures made and no medical evidenced at this time (sic).

This notification did not reach the threshold for developmental involved and therefore there is no current investigation or open case with the department.
By the time that the proceedings came before the Court for trial, a number of further events had occurred and further material was available to the Court. Principally, the allegations of sexual abuse had been fully investigated by CPS and the records from this investigation had been obtained and put into evidence by the ICL.
At the commencement of the trial, the Court had the benefit of an Outline of Case document prepared on behalf of the mother. Of some surprise, the allegations of sexual abuse did not warrant any mention in the mother’s document.
When the trial hearing commenced the Court was informed by counsel for the mother that the mother was not asking the Court to make any findings of sexual abuse. This position was difficult to reconcile in circumstances where the mother is asking the Court to make orders that the children live with her and that she have sole parental responsibility; presumably on the basis that the father presented as an unacceptable risk of harm towards the children.
When pressed about this submission the mother’s counsel informed the Court that the mother did not resile from the allegations of sexual abuse, but that she accepted that the allegations had been investigated and that they have not been taken further by any relevant authority.
Despite this rather confusing position propounded by the mother’s counsel, it became clear during the course of the mother’s oral evidence that she maintained the allegations of sexual abuse.
For reasons that are not entirely clear, these allegations were not ones that were particularly probed by counsel for the father in his cross examination of the mother.
The Court however was greatly assisted by the careful and meticulous cross examination on this topic undertaken by counsel for the ICL, who it appears had attempted to reconcile the various versions of the allegations appearing in a range of documents, including but not limited to the mother’s sworn evidence and the CPS records.
At the time of the February decision, the mother relied on an affidavit filed 15 September 2020 in which she deposed to the alleged disclosure made by Y. The relevant paragraphs of the mother’s affidavit were set out in the February decision and bear repeating here:

2. On Tuesday afternoon of 11 August 2020, upon the return from the Respondent Father’s the night before, my child [Y] born […] 2016 and currently 4 years old disclosed to me that the Respondent Father “tickles her vagina” when she is sleeping. She spontaneously told me this when I was getting ready for bed and she was showing fear of the darkness and sleeping on her own.

3. [X] then told me that she has also witnessed the Respondent Father tickle [Y] inappropriately as he did to her at the same age.

4. I have also noticed that when [Y] started seeing the Respondent Father again, she began to display signs of being distressed, such as thumb sucking for the very first time, bed wetting, fear of the darkness, not wishing to sleep without me by her side and shutting herself in her room alone during the day, which were all out of character.

5. I subsequently took [Y] to see [Dr N], she was not comfortable with the doctor touching her or checking her over, he has reported this to the necessary people.

6. I have also notified the police (report number […]) of the allegations who have not spoken to [Y] as yet but as I understand they are pursuing the matter.
Segment #3
During cross examination of the mother, the father’s counsel identified another inconsistency in the mother’s version of events, which highlighted timing concerns. In particular, the mother was challenged as to her assertions that she did not know until August 2020 that the father held concerns as early as March 2020, that the mother’s child B may be sexually abusing Y. The mother initially maintained that she did not know the father held this concern until after the sessions with Ms G for the 11F process. When the mother was then advised that the father had deposed these concerns in an affidavit he filed on 11 March 2020, the mother’s memory was shaken and she ultimately conceded that she had been wrong in her earlier assertions.
While this error might at first blush appear innocuous, this evidence is significant when put into context with the other events that were unfolding at that time as discussed at [20-33] of the February decision. This is because it is now apparent that the timing of when the allegations that the father had sexually abused Y came to the fore, now appear to be in response to and after the father had raised concerns about B in the context of these proceedings.
I pause at this juncture to record that the concerns relating to B appear to have fallen by the wayside at the father’s end. While it is impossible to know the reasons why these allegations were abandoned, given the acrimonious nature of the parties’ relationship, I have some reservation that this allegation was made by the father to bolster/justify his actions in retaining the children in February 2020 and/or his position that the children live with him.
In that context it is plausible that the allegations of abuse, starting with those previously made by the mother in relation to the father’s abuse of X in late 2017, which saw her retain the children and a round of litigation, followed by the allegations by the father of B’s abuse of Y in March 2020 which were part of the events leading to his retention of the children and the commencement of the current round of litigation, and then the allegations by the mother of the father’s abuse of Y made in August 2020 in the context of these proceedings, are all a manifestation of the acrimony that the parties feel towards each other and their determination to say and do things to advance their respective personal goal of having the primary care of the children to the exclusion of the other parent.
I am mindful that I also commented about my concerns over the veracity of the allegations of sexual abuse of Y by the father when related to timing issues at [92] of the February decision, in the following terms:

…

(c) That when [X] was interviewed and examined by her doctor in [mid] 2020 she made no disclosures, and nor was there any physical evidence of sexual abuse.

…

(f) The passage of time from when the alleged disclosures were first said to have been made by the children, their failure to make any disclosures relatively contemporaneously when seen by their GP, as against the disclosures that were ultimately said to have been made when interviewed by Child Protection Services.

(g) That the disclosure now said to have been made by the children appear to have a striking similarity to an allegation of sexual abuse that the father made in [early] 2020. At that time the father asserted that the child Y had disclosed to him that the mother’s child [B] “tickles” her vagina.

(footnotes omitted)
Nothing that has come to light since I raised those concerns in the February decision, has changed the presence of those concerns or diminished their significance.
Rather, in light of all of the matters I have discussed in these reasons, my concerns are now greater and my preliminary views have been solidified by the mother’s inconsistent oral evidence as against her affidavit evidence and the contents of the CPS Report.
In light of all of these matters, I am not satisfied that either of these children were sexually abused, let alone that the father perpetrated such sexual abuse of the children.
The mother’s allegation that the children are scared of the father

A repeated theme throughout the current litigation, and particularly during her oral evidence, was an assertion by the mother that the children were “scared” of the father and that they do not feel “safe” with him. These assertions were repeatedly made by the mother to explain her inability to facilitate the children spending time with the father.
In addition, the notes from the Children’s Contact Service for the attempted visits in February and March 2022 record:

(a) That the children “Both said confidently, in unison, “We don’t feel safe” to explain why they did not want to transition to the father on 25 February 2022.

(b) Y quietly directed the worker to have X explain why they did not want to transition to the father on 3 March 2022, with X taking a breath and responding “We don’t feel safe”.

(c) On 25 March 2022, the children were sitting with the paternal grandfather when the worker attempted to take the girls to the father, with X “straightaway” saying that she did not want to go as she did not feel safe.

(d) On 31 March, X’s opening words to the worker from the contact service were “nope” indicating that she did not want to see the father, with Y taking a big breath before explaining her reason for not wanting to go that day as “Well, it’s because he makes us get up so earrrrly”.
While it is difficult to form a concluded view in the absence of oral evidence from those workers from the contact service, on the face of the notes, it would appear that the children’s explanations for not wanting to transition to the father had an air of being rehearsed.
During the trial when the mother was asked to identify the reason that she believed the children were scared of the father and did not feel safe with him, the mother’s repeated assertions were that the children were scared that the father would retain them in his care as he had done in February 2020.
When the mother was pressed about this explanation and asked how she has encouraged the children to spend time with the father, what became clear is that the mother herself does not consider that the children are safe in the father’s care.
When the mother was asked to elaborate why she did not consider the children to be safe in the care of the father, the mother gave a long and convoluted answer focussing on issues relating to the children’s day to day care needs, which surprisingly did not include any of the allegations of sexual abuse that she had made about the father. This was a surprising position given the serious allegations that had been made, coupled with those allegations being the catalyst for a termination of the children’s relationship with the father.
What is all the more confounding is that when the children were left to their own devices in the presence of Ms G on two separate occasions[5] there was no similar reluctance or distress expressed or exhibited by the children towards separating from the mother and/or spending time with the father. Of equal importance, on both of those occasions neither children expressed that they were “scared” of the father.
[5] The two occasions being the observed interaction on 28/5/2021 for the purposes of the Family Assessment, and the supervised handover on 12/5/2022 during the course of the trial.

In all of the circumstances, the mother’s assertions that the children are scared of the father are difficult to accept and they are rejected
The father’s allegation of family violence in the mother’s home

As identified in the February decision, the father then held significant concerns about the presence of and the children’s exposure to family violence in the mother’s home arising from the mother’s relationship with Mr M.
As identified in the February decision:

109. So far as matters of family violence in the mother’s household are concerned, these issues came into sharp focus at the hearing on 3 February 2021, which resulted in the mother giving oral evidence.

110. What is now apparent to me from the mother’s oral evidence is that there was an incident of family violence in the mother’s household [in late] 2020, during which the mother acknowledges she was the victim, and her then partner [Mr M] was the perpetrator.

111. This incident, is not something that the mother had otherwise informed the court about in any of the affidavits she had filed since [late] 2020. Rather this information only came to light as a consequence of an affidavit the father’s solicitor filed on 19 November 2020 annexing documents that had been produced to the court by each SAPOL and the Department of Child Protection.

112. The mother ultimately however gave oral evidence that the information contained in the Police Report of [late] 2020 was indeed accurate to the following extent:

a) That she had argued with [Mr M] that day over a television programme.

b) That she had asked [Mr M] to leave, which caused him to push her with [an object] that he was holding.

c) That [Mr M] then kicked a suitcase which hit the mother’s foot causing a cut to her […] foot, which did not require medical attention.

113. That in addition to matters contained in the police report, the mother gave oral evidence that:

a) The children were home during the incident on [this date], although the mother understood that they were asleep in their beds.

b) The mother acknowledged arguing with [Mr M] over the course of their “on off” relationship, which began in [early] 2020, with cohabitation occurring between [mid] 2020 and [early] 2021, albeit with periods of time that [Mr M] moved out of her home as they were not getting along and to assist him in his own separate parenting dispute to “gain access to his children”.

c) That the mother asserted that there were no other occasions where the children were exposed to family violence in her household between her and [Mr M].

d) The mother admitted however to [Mr M] making threats to “bury” the father, which were overheard by the children sometime after [mid] 2020 and before [late] 2020, and resulted in her having to tell the children that [Mr M] would not act in that way.

e) That [Mr M] and the mother broke up in [early] 2021 and they are no longer living together and there is no prospect of the relationship or cohabitation resuming, albeit that they remain in contact.

114. These admissions by the mother in her oral evidence while a little confusing, were equally concerning, as they appear to some degree to support concerns being raised by the father about the mother’s household.

(footnotes omitted)
In addition, I was satisfied that there was a further incident in the mother’s home which led to a report to the DCP in mid-2020 by someone other than the father who had reported:

116. … the notifier is alleged to have reported:

a) That the mother and (name omitted) “fight 24/7 and that they have a digital keypad on their bedroom door”.

b) That [X] had disclosed that (name omitted) swears at the mother all the time and yells at the children calling them “wankas” and “little fucks”.

c) The notifier reported that the mother and (name omitted) have broken up 3-4 times.

d) That [X] had disclosed that the mother and (name omitted) were fighting and (name omitted) threw a suitcase and it landed on (name omitted) foot causing her to scream.

e) That [X] had disclosed that while the mother and (name omitted) were fighting she was “next to her mother’s room and (name omitted) had shoved her mother into the wardrobe and started to yell at the mother, slamming her into the wall.

f) That (name omitted) was screaming.

g) That (name omitted) said to [X] “nah im (sic) bigger than your dad im (sic) going to put him down”, and that [X] appeared shocked when recounting this.

h) [X] is alleged to have disclosed that the mother and (name omitted) fight all the time, but she had not provided further information about frequency.

i) The child [Y] is said to have had a red mark on her face, but she did not provide an explanation.

j) [Y] is said to have disclosed that (name omitted) had kicked a footstool she was sitting on causing her to face plant onto the tiles.

k) The notifier reported “heaps of screaming at the home and the children screaming, that there have been lots of cars coming and going from the home.”

l) That the child [X] “reported the day that her mother got pushed into a wardrobe and slammed on the wall, that she wanted to go to school however her mother would not let her and would not provide [X] a reason why.”

117. While again I am not in a position to make findings about these matters, I am somewhat concerned that:

a) The children appear to have made certain disclosures about family violence in the mother’s household between the mother and her then partner.

b) In light of the mother’s evidence about the length of her relationship with [Mr M], I would have to have some confidence in inferring that [Mr M] was the person in the records whose name was omitted.

c) The mother alleged in her oral evidence that there had only been one incident on family violence between her and [Mr M] [in late] 2020. Whereas the record from [mid] 2020 predates that incident.

d) The notification made [in mid] 2020, appears to refer to an incident in which a suitcase was thrown at the mother by [Mr M] causing injury to her foot, which appears in part to bear some similarity to the incident reported [in late] 2020 which the mother asserts was the only incident of family violence between herself and [Mr M]. Given the timing of the report to the Department of Child Protection and the SAPOL record, I have some concerns that there may have been more than one incident of family violence between the mother and [Mr M], and possibly two incidences that involved [Mr M] harming the mother with a suitcase.

e) The alleged disclosure made by [X] in the record in [mid] 2020, that [Mr M] had said he was going to “put him down” in reference to the father, bears some resemblance to the mother’s allegation in her oral evidence that the children had overheard [Mr M] tell the mother that he would “bury” the father, causing her to reassure the children to the contrary. Again, given the date of the report to the Department of Child Protection and the mother’s refinement of when the children overheard [Mr M] make a threat towards the father, together with the difference in the words used, I must have some concern that the children overheard threats by [Mr M] towards the father on more than one occasion.
Ultimately, given the interim nature of the hearing in February I concluded:

120. For all of the reasons I have set out, I consider that it is appropriate to make an injunction restraining the mother from bringing the children into to contact with [Mr M] or permitting any other person to do so. This is an injunction that the mother agreed to have made when the court raised it at the hearing on 4 February 2021.
Against that backdrop, the mother and the paternal grandfather were cross examined during the trial hearing about the nature of the mother’s relationship with Mr M and the extent of family violence within that relationship.
During the mother’s evidence on this topic I formed the distinct impression that she had not recalled that which she had asserted in her oral evidence during the hearing on 3 February 2021, nor that she had given any further consideration to the concerns that I had highlighted in the February decision over the inconsistencies in her evidence.
During the trial hearing, the mother maintained that there had only been one incident of family violence between herself and Mr M. I reject that evidence for all of the reasons that I outlined in the February decision.
I am fortified that this is the right conclusion to be made, not only because of the glaringly inconsistent evidence of the mother at the hearing on 3 February 2021, but also as a result of further inconsistencies and peculiarities that arose in the mother’s evidence and that of her father during the trial hearing.
In particular during cross examination by the father’s counsel, the mother sought to re-characterise and downplay the concerns raised by the DCP record which I had recorded at [116] of the February decision, instead asserting amongst other things:

(a) There was indeed a digital key pad on her bedroom door, but that this was not for any sinister reasons, but rather was because she was “not good with keys” and that she would only shut her bedroom door to shower.

(b) Rather than yelling at the children, Mr M “raised his voice in a disciplinary manner”.

(c) She and Mr M had not had an up and down relationship and that they had only separated on 2 occasions rather than 3 to 4.

(d) The catalyst for her separations with Mr M was because they were not getting along and that she had asked him to leave to “cool off”.

(e) Mr M had not ever screamed at her.

(f) While initially denying the use of swear words as recorded in the DCP record, she and Mr M had “heated arguments” on half a dozen occasions in which they both used the word “fuck” as their “go to” swear word, and in which Mr M had called her a “slut” and she had called him a “fucking wanker”, with the children allegedly being “asleep in bed” on occasions during these exchanges.

(g) She could not remember the details of the incident which resulted in Mr M kicking a suitcase at her. In particular she could not remember if X had been present, suggesting that her lack of memory was because she has 5 children to look after.

(h) The children had overheard Mr M say to her “I’m going to put him in the ground”, which she characterised as a “passing comment” which Mr M did not mean.

(i) Mr M had been annoyed at the time he made this comment.

(j) The comment had been said when she and Mr M were sitting quietly on the end of her bed with the children at the other end of the house.

(k) X had overheard the comment as she had walked into the room after Mr M had made it.

(l) That the footstool incident was perpetrated by B and not Mr M.
These explanations of the mother raise more questions than they answer, in particular it is difficult to reconcile:

(a) The assertion now made by the mother that the words used by Mr M when making threats about the father were “I’m going to put him in the ground”, when she had made an admission on 3 February 2021, as recorded in the February decision that the word used was “bury”.

(b) The assertion now made by the mother that this comment was only said in passing, while she and Mr M were sitting quietly on the end of her bed, when she acknowledged on 3 February 2021 that the comment had led to the children’s distress sufficient to warrant her needing to tell the children that Mr M would not act in that way.

(c) The assertion now made by the mother that Mr M did not yell or scream at her, but rather raised his voice at the children in a disciplinary manner, coupled with the eventual admission of heated arguments which included the use of swear words, against her assertion that each time that they had separated she had asked Mr M to leave her home to “cool off”, which suggests more serious levels of arguing between them.
The inconsistencies in the mother’s evidence about Mr M were further compounded by admissions the mother made for the first time during cross examination by the ICL, which included:

(a) That Mr M had been a “frequent or constant” user of an illicit substance during their relationship, and that this was the cause of her finally ending their relationship.

(b) That there had been a “couple of occasions” when Mr M had been violent and aggressive towards her.

(c) That there had been an altercation between Mr M and the maternal uncle Mr BB in about January 2021 when the mother had called Mr BB to assist her remove Mr M from her home when the relationship ended, as he had refused to leave her home. That both children had witnessed these events.
So far as the incident between Mr M and the maternal uncle was concerned, not only had the mother failed to disclose this incident, but additionally a version of events was given by the maternal grandfather which further muddied the waters. That disclosure of that version of events arose in circumstances where the maternal grandfather had deposed to an incident between Mr BB and the father in his affidavit filed 1 April 2022 (at [32]), which he sought to correct when he gave oral evidence in chief. The correction was significant, as the maternal grandfather identified that he had been mistaken and that the incident had taken place between Mr BB and Mr M. Only counsel for the ICL sought to probe this correction. In the course of that probing the maternal grandfather identified that the incident had occurred in about the middle of 2021.
This evidence of the maternal grandfather was concerning because:

(a) The context and tenor of his affidavit asserting that there had been an incident between the father and Mr BB, was to support and corroborate the mother’s claims of “abuses [Mr Bickett] had committed against [Ms Reddin]” (at [31]). Accordingly it is impossible to understand how such a significant error could have been made in his affidavit.

(b) The paternal grandfather’s time line suggested that Mr M was still attending the mother’s home well after an injunction had been made by the Court on 05 February 2021 restraining the mother from:

(a) Bringing the children into contact with [Mr M], and/or permitting any other person to do so
Having weighed all of the evidence on this topic I am now satisfied:

(a) There was more than one incident of family violence between the mother and Mr M.

(b) The incidences of family violence included not only physical abuse directed to the mother, but also verbal abuse.

(c) The children are likely to have witnessed and/or heard the incidences of family violence between the mother and Mr M.

(d) Mr M also made threats to harm and “bury” the father, which the children heard, requiring the mother to console them.

(e) There was an incident that took place, likely after the injunction made by the Court on 05 February 2021 when Mr M was present at the mother’s home, and the mother was concerned enough about Mr M’s conduct and behaviour that she sought the assistance of her brother Mr BB, which resulted in a physical altercation between Mr M and Mr BB.

In light of these findings, I continue to hold concerns about the mother’s ability to act protectively of the children when it comes to risk factors in her household. In addition, I have concerns about the mother’s propensity to be less than forthcoming and/or downplay events when challenged about concerns.
I am however satisfied that the mother’s relationship with Mr M has now ended and that he specifically does not pose an ongoing risk factor for these children.
In all of the circumstances however, I do consider it appropriate to maintain an injunction preventing the mother from bringing the children into contact with Mr M.
The father’s allegation of illicit substance use by the mother

The father’s allegations of the mother’s illicit substance use have been a feature of the father’s case from the inception of the current tranche of litigation. In particular the father asserts that one of the reasons that he withheld the children from the mother in early 2020 was because of his concerns that the mother was using illicit substances, coupled with his concerns that the mother was inviting unknown men into her home.
I am mindful that in the context of these proceedings the mother deposes to:

(a) Having produced a clean urinalysis drug test result on 16 March 2020; and

(b) Having produced a clean hair follicle test on 21 September 2020.
I am also mindful that despite orders restraining the mother from dyeing or chemically treating her hair, she has throughout these proceedings continued to use some form of colouring on her hair; she acknowledges doing so until at least mid-2021.
While I have some significant concerns over the mother’s credit generally, and her explanations for failing to abide by the orders of the Court, I am not in a position to make any findings about these allegations.
In light of this, and given the mother’s repeated protestations to using any illicit drugs, I consider that there would be no difficulty in me making an injunction restraining the mother on certain terms, from doing so into the future, so that this risk factor is eliminated.
The evidence of the report writer

As has been earlier identified in these reasons, Ms G’s report of 25 June 2021 made for concerning reading, particularly as to the enmeshment of the children in the parental conflict, and the dysfunctional nature of the parenting relationship.
During her oral evidence, Ms G made it clear that the biggest impediment to the children having settled and workable living arrangements, was the parents themselves. Ms G’s clear opinion was that if these parents committed to abiding by Court orders and supporting the children’s relationship with the other of them, then any arrangement providing for the children to have regular time with both parents was able to be achieved and sustained.
A clear example of the parents’ lack of willingness to abide by recommendations and/or Court orders impacting the success of the parenting arrangements is illustrated by the events that transpired during the course of the family assessment detailed at [40-41] above.
During the trial the mother was cross examined about her conduct following the appointments with Ms G on 28 May 2021 and the feedback that Ms G had given both parents that they needed to ensure that the children’s time spending with the father resumed.
The cross examination of the mother, by the father’s counsel focussed on what Counsel clearly considered to be an abnormal situation that saw the mother take Y to a “spiritual healer”. However, in light of the mother’s unchallenged evidence that both parties have attended on this “healer” for treatment, and the father’s evidence that he himself is trained in the same type of treatment, I do not consider that the children’s attendance on this person per se was the root of the problem.
Rather, what was concerning about the mother taking the child to her “healer” on this occasion was that the mother’s intention behind the session with Y following the appointments on 28 May 2021, was because the mother had formed the view that the interactions with the father during the assessment process had negatively impacted Y; something Ms G had been at pains to make clear to the mother was not the case.
What was all the mother egregious about the mother taking Y for a massage that day, is that in my view it is inconceivable that Y was anything but completely exposed to and cognisant of the mother’s negative views about the father, given the mother’s evidence that:

(a) The purpose of the treatment was to unblock blockages created by negative emotions;

(b) The treatment/healing sessions involve discussions with the “spiritual healer” to understand what is going on in the person’s life to create such blockages;

(d) Her consistent perception during her oral evidence that following the appointments with Ms G, Y was “surrounded with negative energy”, “she was out of balance with herself emotionally”, “the happy girl I arrived with was not the same girl when I left”, and that Y’s eyes had gone “dark” which is what happens when she is “emotionally distressed”.
In light of all of those matters, I accept and agree with Ms G’s conclusion that the mother allowed X to sabotage time spending with the father resuming. I am further satisfied that the mother herself did all in her power to ensure that the time did not resume.
I note that in her written report Ms G’s recommendations were:

· That if the Court accepts that the two girls are at risk in their father’s care. That the children remain in the mother’s primary care and any contact between the girls and their father is to be supervised.

· That if the Court accepts that the mother is actively coaching and/or weaponising the girls (particularly [X]) in her dispute against the father or failing to support the girls’ (especially [Y]) spending time with their father, then consideration could be given to changing the girls’ primary care to the father, along with the girls’ school, with provision made for the mother (and the girls’ maternal siblings) to have supervised time with the girls, with any supervisor(s) signing an undertaking as to accepting responsibilities entailed in being a supervisor.

· The girls may benefit from attending [R Organisation]’s [S Program] in the first instance given the reports of the changes in their behaviour at school, which provide children with information to cope with conflictual parents.
I am also mindful that during her oral evidence Ms G was confounded by the question of what the appropriate arrangements for these children might be, given the entrenched dispute of these parents, their inability to comply with court orders, and the mother’s seeming inability to support a relationship between the children and the father; the latter being Ms G’s “biggest worry”.
In my view Ms G’s oral evidence, like her written reports, was careful, considered and insightful.
Ms G’s evidence as to any future parenting arrangements needing the support of both parents, was particularly insightful, with her variously commenting:

• So the focus is on distrust. That’s where you’re questioning is, but I can’t see that as a singular issue without the support of that parent. So you could have distrust and a recurrent contact and building trust in that, but unless that relationship is supported on the other side and that parent says, “You’ve got to go. That is the arrangement. You’re not to have a say in this. You’re only a seven year old child. You don’t – you’re not the boss” – that parent needs to be saying that, and it’s – you can’t have one without the other. So I’m just saying it is two that takes to tango…

• … both parents, need to take responsibility for decisions here, not a seven year old child.

• Unless [X] is deprogrammed from thinking that she’s the one that is making all the decisions, and I don’t quite know how that would work unless both parents aren’t genuinely on the same page, because unless something is done sooner rather than later [X] will have long-term problems with her mental and just her whole sense of who she is. She should be a child, and she’s not able to be a child because two parents have such a shocking relationship that she feels she has got to step in the gap, here, and be the boss.

• I think if the mother is going to be continued to be ordered around by her oldest daughter, [X], then there will be no positive outcome. You know, if [X] is saying, “I’m not going to school today, Mummy, because I don’t want to go with Daddy,” and mummy agrees and goes and picks up the child before daddy arrives. So that – it’s not going to work. She – the mother, really, has to say to both girls, “This is what has been ordered.” You know. “I’m not going to go – you will be going to school because you are a seven year old or eight year old, or however old you are. And that’s the reality. You’re not the boss. I’m the boss.” And I don’t know whether the mother has the capacity to do that. I don’t know whether she’s able to have that parenting role with a daughter who she thinks should be able to decide whatever she wants to do.
During her oral evidence Ms G ultimately conveyed the following opinions:

(a) She considered a need to minimise direct handovers between the parents, recommending that the majority occur at school, in the absence of the other parent.

(b) A shared care arrangement was one that could be facilitated if both parents were committed to supporting the other parents’ ongoing relationship with the children.

(c) The distance between the parents home (approximately 45 minute drive) was not prohibitive to the success of a shared care arrangement, if the parents supported the arrangement.

(d) Whatever orders are imposed by the Court, there would be significant benefit to the children in having those orders explained to them mutually by the ICL and Ms G.

(e) She could not support an arrangement which might lead to X and Y being separated from each other.

(f) She supported the making of injunctive orders that required the parents to obtain each other’s mutual consent before taking them to any treatment (allied health or otherwise).

(g) She continued to be of the view that the children attend the S Program so that they “realise that they’re not the only children in the world with parents that are so dysfunctional that they cant make an arrangement that lasts…”

(h) The children would likely be impacted by a move into the father’s primary care, and she could not support the children living with the father without giving the mother one last chance to facilitate an ongoing relationship between the children and their father, and comply with court orders.

(i) If the mother was unable to abide by the orders to be made at the end of this trial process, then the Court should entertain the prospect of a change of primary care to the father; effectively giving the mother one last chance to prove her bona fides and ability to put the needs of the children first.

(j) She considered that if a change of primary care was ordered, because X is so heavily aligned with the mother, she would need therapeutic support as she would struggle emotionally. Whereas she did not have concerns about Y managing a change of primary care to the father.

(k) The mother would benefit from therapeutic support in supporting the children’s ongoing relationship with the father.

(l) Both parents would benefit in some form of counselling to “reality test their thinking”.

(m) If the children were to transition to the father’s primary care, they would benefit from a fresh start at a new school.

(n) If the children were to have both parents in their lives moving forward, then she supported the children transitioning to a school equidistance between the parents’ homes.

(o) She did not support any arrangement which would see the children prevented / “blocked out” from seeing the other parent for a period of time as part of any orders made by the Court.

(p) The parents should share parental responsibility, with the same shifting to the parents with primary care in the event that one of the parents was unable to comply with the Court’s orders in the future warranting a change to the children’s living arrangements.
Having weighed all of the evidence, Ms G’s opinions and recommendations are ones that I accept without reservation.
Best interest considerations

I have already considered several of the considerations set out in section 60CC of the Act.
I now only intend to discuss further relevant factors that I have not already considered and which lead me to supporting the opinion and recommendations of Ms G.
In light of all of the events that have occurred throughout these children’s lives, I have some significant concerns as to the ability of either of these parents to support a meaningful relationship between the children and the other of them.
Of some concern during her oral evidence, the mother was unable to give the Court any firm answer as to how she considers she might be able to do to support the children’s relationship with the father moving forward. During her evidence on this topic, it became apparent that the mother had not turned her mind to the significance of her role in encouraging and facilitating the children’s relationship with the father.
While this evidence is in and of itself concerning, it was more concerning in the context of a concession during her oral evidence that the child Y has told her more than once in the five months preceding the trial hearing, that she wanted to spend time with the father and that she had been excited to spend time with him on the occasions that she had been able to do so.
I must however weigh this evidence given in May 2022, with the fact that since that time the mother appears to have been able to comply with orders for the children to spend time with the father.
On the other hand, the fathers evidence as to how he managed X’s outburst during the time spending with him on 12 May 2022, and his oral evidence about the orders he was seeking, which included maintaining and relationship between the mother and the children, I am satisfied that the father has the ability to continue to facilitate a relationship between the children and the mother and that he sees the value of that relationship continuing.
In light of all of the events that have occurred in the lead up to trial, I however continue to hold concerns about the parents’ poor attitude towards each other and the impact that this is likely to have on their ongoing co-parenting dynamic.
These concerns were further highlighted by both parties being confronted with the entirety of the text communications passing between the parties between 21-23 February 2020 when the father had retained the children[6]. An extract of those communications became a feature of the February decision as it included the message from the mother to the father which had led the father to apprehend that the mother would stop at nothing to ensure that he did not have a relationship with the children as she had told him “… I will unravel the web u have spun for at least the last 6 years strand by strand by strand til u are left with NOTHING and nothing is still more than u deserve! Enjoy ya time while it lasts coz it will be the last! That’s a promise!”
[6] Exhibit “ICL 1”.

Having now had the benefit of the entire text exchange between the parties, and acknowledging that it was a time of heightened emotions, the exchange makes for confronting reading as it evidences the casual ease deployed by each of the parents when denigrating and criticising each other. Examples from this exchange include:

(a) The father calling the mother a “pig dog”.

(b) The father telling the mother that she would “NEVER get any respect from me again you will continue to be the lost little puppy that continues to use her box as a tool to trap guys and as a typical narcissist you will try and manipulate change poison the person!”

(c) The mother calling the father a “joke”, “mentally unstable and clearly delusional”.
As identified by Ms G, there also remains serious concerns of each of the parent’s inability to shield the children from the adult dispute and or to protect their emotional wellbeing. Part of the reason that the parents have such an inability to shield the children would seem to be because they are each clear in their lack of trust for each other. While there were numerous examples of the parents each being unable to protect their children from the adult disputes and/or consciously choosing to put the children at the centre of the adult dispute, the following examples are illustrative.
On the mother’s part examples included:

(a) An admission by the mother that she had told the children that it was the father’s fault that Mr M had gone away and they could not see him anymore and that there was a court order to that effect. What is concerning about this admissions is that rather than the mother either not engaging the children in any discussion on this topic at all, or in light of the evidence she ultimately gave during cross examination by the ICL, explaining to the children that Mr M was not a safe person, the mother used the opportunity to sheet blame and criticism on the father.

(b) An admission by the mother that there was a physical altercation between the parents, and witnessed by at least Y during the period commencing February 2020 when the father withheld the children. While the mother’s distress over the father retaining the children is understandable, this incident is concerning as it saw Y literally between the parents exposing her to the acrimony, despite having requested police to undertake at least two welfare checks and having commenced these proceedings for a more orderly return of the children to her primary care.

(c) An admission by the mother that the children may have overheard her telling a friend that the father was a “shit parent”.

(d) An admission by the mother that she had allowed the children to watch a distressing two minute video message that the father had sent her on or about 23 December 2019. While the mother ultimately admitted in her evidence that she should she have watched the video first to determine that it was appropriate for the children to watch, that the mother did not stop the video after the opening comments made by the father is all the more troublesome, because the father’s opening words in the video should have been a clear indication to the mother that the video was not appropriate for the children to watch. Those words being:

Hey bubbas, umm, yeah so to you all, all three girls and ya mum I guess, umm, yeah dads not in a great place at the moment, he’s um, yeh gets told you girls are better off without him, and I guess I have got to a point now where, I believed it, so, dads gonna take a bit of time and try better himself I think, umm, for you guys…[7]
[7] Affidavit of Mother filed on 22 April 2022, Paragraph 32.

On the father’s part examples included:

(a) Taking the children to see a psychologist seemingly immediately after he retained the children in his care in February 2020. This was concerning, not only because the father did not consult with the mother about his plans to take the children to see a psychologist, but also because it appears that his motivation for doing so was to gather evidence against the mother. What was of further concern is that the father indicated that the psychologist that he had taken the children to advised him that “everything was functioning fine”, yet despite this reassurance the father retained the children.

(b) An assertion on the father’s part that he did not consider that his actions in retaining the children in February 2020 had an impact on the children.

(c) The father’s poor conduct in retaining the children for 3 days in April 2021, with the father acknowledging that the children would have been aware that they were not being returned. This conduct and the lack of insight as to the impact on the children was all the more jarring as it had occurred against a background of each of the parents retaining the children, and the father being highly critical throughout these proceedings of the mother failing to comply with the parenting arrangements and orders relating to the children.
While these matters appear to contra indicate these parents being able to effectively co-parent in any way moving forward, I am conscious that both parents spoke of a willingness and desire to co-parent into the future. The mother specifically gave evidence that she would like to be able to make joint decisions with the father about the children, and that she liked to believe that the situation could change in the future; the mother acknowledging in the process that there were things she could do to improve the situation.
The father equally gave evidence that he hoped to communicate more civilly with the mother in the future, provided that the same occurred in writing.
The Court is also concerned that at the present moment the father does not appear to be paying any meaningful child support for these children, and he has not done for some time. While this might be explained away by the father’s assertions that his only source of income is Centrelink benefits, I have some concerns that the father is shirking his child support responsibilities. This is because the father is qualified in an alternative medicine treatment, and in addition is able to undertake manual labour. It seems however that the father has not availed himself of the opportunity to partake in formal paid employment since about 2017.
Conclusion

Having considered all of these matters, I am troubled in coming to a conclusion as to the most appropriate arrangement for these children moving forward, as was the court child expert Ms G.
On the one hand the findings I have made in relation to the mother are serious and point to a finding that at times she is unable to meet the emotional needs of these children.
On the other hand, the father’s conduct, particularly at the commencement of the current tranche of proceedings in withholding the children, has been equally merciless, and indicates that he too at times is unable to meet the emotional needs of these children.
I accept that often times, such findings would suggest that it is best that the children have a primary base with one parent, and very limited time spending with the other parent.
What is inescapable however, is:

(a) That both parents have contributed to the current state of affairs; and

(b) That these children, if permitted by each of their parents, derive significant benefit from the relationship that they have with each of their parents.
Much like Ms G, I too am satisfied that it is the parents themselves that present the biggest impediment to these children having a carefree existence where they are able to maintain a relationship with each of their parents.
The difficulty therefore is that where both parents from time to time seem incapable of prioritising their children’s needs ahead of their own desire to inflict harm on the other of them, the court is left in an invidious position of fashioning a parenting arrangement that does the least harm to these children.
To that end, I am deeply concerned that these children are at ongoing risk of emotional harm if they continue to be caught in the crossfire of their parents, particularly so if either parent chooses to prevent them having a relationship with the other parent.
While I am satisfied that these parents have a toxic relationship and a mutual disrespect for each other, for all of the reasons that I have discussed, my firm view is that in circumstances where both parents have contributed to the current state of affairs, there presently exists no proper basis to rebut the presumption that the parties should equally share parental responsibility for the children.
Additionally, and for the same reasons, I see no basis at the present moment for the children to live solely with one of the parent, to the exclusion of a meaningful relationship with the other parent in the short, medium or long term.
While I have considered all of the options promoted by each of the parents, I am not bound to adopt any of the orders that have been promoted (see U & U (2002) 211 CLR at [80]).
In the end, I am most concerned to implement an arrangement that would see the children maintaining a secure and meaningful relationship with both of their parents; as promoted by both the ICL and Ms G.
Additionally, I am keen to limit the ability of either parent to sabotage the relationship that the children has with the other parent.
It is for all of these reasons that I consider that the children should live in a week about equal shared care arrangement.
In coming to that conclusion I have adopted the opinion and recommendations of Ms G in her oral evidence.
To that end I consider it appropriate to make orders that would see the children changing schools to one that is as best as possible equidistance between the parent’s homes.
I additionally consider it appropriate that there be orders that provide for:

(a) The parents to share special occasions;

(b) Handovers to occur at school, and if not at school at a neutral venue equidistance between the parents homes;

(c) Injunctions to shield the children as best as possible from the parental dispute.
I accordingly make those orders set out at the commencement of these reasons.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated: 18 November 2022