Parenting Orders Addressing High-Conflict Custody and Recording Risks

WILSON J

INTRODUCTION

1. Following the making of orders for the bifurcation of this proceeding, the trial of the parenting aspect of this litigation proceeded over nine days in three trenches in the first half of 2024. Changes to the Family Law Act were enacted while the case was part heard before me.
2. Each parent separately sought orders for sole parental responsibility for the children.
3. Each parent separately sought orders for the children to live with that parent.
4. The mother sought orders for the father to have no time with the children.
5. The mother asserted that the father sexually abused one of his three daughters.
6. The father contended that the mother’s psychological state was such that the children were at an unacceptable risk of exposure to family violence when in the mother’s care with the consequence that sole parental responsibility for the children should be ordered in favour of the father.
7. All parties agreed that an order for equal shared parental responsibility was wholly unworkable.
8. The ICL propounded orders for the mother to have sole parental responsibility for the children, for the children to live with the mother and for the father to have time with the children in accordance with a regime recommended by the family consultant.
9. The father trenchantly denied that he had sexually interfered with one of the children in the manner alleged by the mother or at all.
10. The mother denied that she was in any way compromised in her capacity to properly discharge her parental responsibilities by reason of her emotional fabric.
11. Ms D, the family consultant, recommended that both parents can safely and properly parent the children so long as the parents do not come into contact with one another. Ms D took the view that any risk to the children in the future were minimal so long as the children’s parents do not hereafter come into contact with one another.
12. The father sought a change of residence order for the children to live with him.
13. A considerable focus in the case was on the concept of unacceptable risk within the contemplation of the decision of the five-member bench^[1] of the Full Court of this court in Isles v Nelissen.^[2]

OUTCOME

14. On the threshold issue of whether the father sexually interfered with one of the children, I am not persuaded on the balance of probabilities that the father did in fact sexually interfere with the child.
15. So far as orders for parental responsibility of the children were concerned, I am of the view that an order for equal shared parental responsibility is not feasible and in any event, neither parent nor even the ICL sought an order in those terms.
16. An order changing the residence of the children in the manner sought by the father is more complicated. Having considered that application in substantial detail against the best interest considerations which various provisions of the Family Law Act require me to address, I am of the view that the change of residence application must be refused. Instead, an order in the terms sought by the mother with which the ICL concurs should be made for the children to live with the mother.
17. I refuse the mother’s application for there to be no time for the children with the father. Instead, I make orders for the children to meet with the father in accordance with the orders proposed by the ICL, those orders having their genesis in the recommendations of Ms D, family consultant.
18. It seems to me that the antipathy between the children’s parents increases when the parents interact with one another. When they do not interact, they do not engage in behaviour that is poor. Of course, I have almost no appreciation of the comments that might be made to the children by one or other parent when the children are in the care of a particular parent. The mother says she has now reached the point where she holds no ongoing concern towards the father. That is to be contrasted with the events of mid-2022. It seems to me there is merit in Ms D’s recommendations that orders should be fashioned to ensure –

(a) the children have some semblance of a meaningful relationship with both parents; and(b) the children’s time with the father should be actively promoted by the creation of orders that have the effect allowing the father and his daughters to develop and consolidate a loving and caring bond which can be best achieved by orders for the father to have time with the children.

19. I reject the mother’s application for the father to have no time with the children.
20. The precise form of the orders I have pronounced appear in the early pages of these reasons.

RELEVANT FORMAL PARTICULARS

21. The father is presently 47 years of age.
22. The mother is presently 44 years of age. She is of Country E heritage.
23. The mother and father commenced living together in early 2009. They married in mid-2009.
24. The mother has no formal education. She speaks limited English. She is able to read and write in the English language only in a rudimentary way.
25. By occupation, the father has carried on business for several years in technology. For a time, the mother worked in the father’s business.
26. The mother and father have three daughters. They are –

(a) X born 2013;(b) Y born 2015; and

(c) Z born 2017.

27. The children currently attend primary school at a local government school.
28. The mother and father separated in October 2019.
29. The father has subsequently formed a new relationship with a woman, also of Country E heritage, who prior to the separation of the mother and the father, was the mother’s best friend. At trial, the mother gave evidence that she now feels no enmity towards the father. Whether that is correct need not be decided in this case because I have come to the conclusion that the hostility between the mother and father remains sufficiently acute that an order for equal shared parental responsibility is not appropriate.
30. The mother currently lives in Suburb F, New South Wales. She does not work. She is reliant upon the father to pay for expenses relating to the children.
31. The father’s current partner has two children of her previous marriage. She and her children live with the father.
32. Prior to the mother and father separating, the evidence revealed the existence of considerable aggression and hostility as between the two. On the father’s version of the evidence, over a period of years prior to separation the mother –

(a) the mother repeatedly swore at the father;(b) the mother denigrated the father; and

(c) attempted to influence the children against him.

33. Over a loosely equivalent period, on the mother’s version of the evidence, the father behaved poorly towards her and the children. Episodes of poor behaviour included the following, according to the mother –

(a) repeated incidents of swearing of the coarsest kind, often in the presence of the children;(b) prolonged periods of anger;

(c) prolonged periods of detachment during which the father took himself to a private room where he watched video games, refusing to interact with the mother and the children;

(d) throwing items at her; and

(e) behaving aggressively toward the mother.

34. The father disputed that he engaged in acts of aggression (whether verbal or physical) towards the wife. For the most part, his denials were blanket in nature, consisting of the father denying the occurrence of the event alleged against him. This suggested to me that it would be necessary for the proper determination of the issues in this case to isolate each incident alleged by the mother and to test each incident applying conventional methodology with a view to ascertaining, on the balance of probabilities, whether the event occurred in the manner alleged by the mother. In respect of several episodes of aggressive behaviour alleged by the mother I adopted that approach. However, it must be understood that the father denied that he perpetrated any form of family violence upon the mother or the children. During the course of the father’s counsel’s cross-examination of the mother the father’s counsel played audio and visual recordings taken by the father on the father’s mobile telephone recording over several minutes a confrontation that occurred when the father approached the mother and the children at a commercial car park at Suburb G train station. That recording went into evidence as exhibit R9 as part of the father’s case so as to demonstrate, on the father’s case, that the mother behaved irrationally towards him. To my way of thinking the recording revealed the mother in a highly animated state who had been provoked, for no reason, at a car park, in the presence of the children, by the father who behaved in a disgraceful manner. Details of that interaction appear below. Sufficient is to say as this junctive, that the video recording revealed to me the father’s relentless quest to expose what he believed was the mother’s unstable emotional fabric with a view to promoting his application for orders for sole parental responsibility. The father should not have taken that recording. He persisted in badgering the mother, in front of the children, freely exposing the children to the dispute between the parents. The video revealed that the father’s new partner (the mother’s former best friend) was present, thereby heightening the emotionally charged environment. The father’s continuation of the filming of the interaction caused me to pause and wonder whether the father had any appreciation of the distress that the event caused his children. I took the view that he was either oblivious to the distress that the incident caused or he was indifferent to the effect that his badgering of the mother caused the mother and the children, in either case highly revealing of his attitude to parenting.

THE FATHER’S CASE IN THIS CASE

35. The father relied on four affidavits he made plus the affidavit of his current partner, the Magellan report and the report of Ms D dated 15 July 2023. The father further relied on his further amended initiating application sealed 30 October 2023 in which he sought orders for sole parental responsibility for the children, orders that the children live with him and that the mother have time with the children only after the mother obtained personal therapy. He sought orders that the mother have half school holiday time with the children.
36. At the centrepiece of the father’s case in this litigation were several contentions about the mother. They are –

(a) the mother will not promote the children having a relationship with their father;(b) almost immediately after separation the mother engaged in a campaign of removing the children from the father’s life and in a campaign of retribution against his current partner;

(c) the mother has publicly denigrated the husband’s partner at the children’s school and in the presence of the youngest child;

(d) once the father commenced this litigation in October 2021 the mother started making reports to government authorities including police;

(e) from late January 2022 the mother caused all contact between the children and the father to cease; and

(f) on 25 or 26 July 2022, the mother alleged to police that the youngest child had been sexually abused by the father.

37. In his affidavit made 11 October 2021, the father deposed to a deterioration in his relationship with his wife two years prior to separation saying the pair argued, often in front of the children. The father asserted that the mother harassed him after their separation. He accused the mother of swearing at him. He accused the mother of sending him text messages that were offensive and contained express statements that she and the children did not need the father in their lives.
38. The father asserted that the mother exhibited symptoms of mental ill-health both during and after the marriage. He alleged the mother wrote to the children what he described as a farewell note. He insisted it was a suicide note. The mother denied any attempt to end her life and she also denied any attempt to overdose using headache tablets.
39. In his affidavit made 6 March 2022 the father deposed to difficulties he encountered in gaining time with the children. He said often no reason was given by the mother for failing to allow the father to have time with the children.
40. The father deposed the mother saying audibly during a conversation between the father and one of the children “daddy doesn’t care about you – he walked away from us.”
41. The father deposed to receiving what he called vulgar text messages from the mother concerning his partner. He said the mother referred to the father’s partner as “dirty cunt.”
42. The father stated that the mother frequently turned up at the father’s place of business unannounced. He said the mother told him, when told to leave, that she (the mother) owned the father’s business and that she was free to do so as she liked.
43. The father deposed to the mother actively posting items to social media taking the form of fake profiles with explicit as well as implicit denigrations of the father. He deposed to comments being made by the wife including “we don’t need you in our life (sic) anymore”, “goodbye daddy”, “we don’t need a father like you” and “we are not a family anymore”. The father deposed to the mother’s sister also posting to social media in what he called “accusatory comments” which included the statement “he [the father] is not good husband he is not good dad” (sic).
44. In his 6 March 2023 affidavit the father devoted considerable attention to his contention in this litigation that the mother’s mental health during their cohabitation was poor. He recorded events purportedly demonstrative of the mother’s poor mental health. Those included the following –

(a) the mother suffering depression and extreme stress after the birth of each child;(b) the mother revealing to the father a photograph of her holding a weapon to the bassinet of one of the children (although he did not say whether a child was in the bassinet when the photograph was taken);

(c) placing one of the children on hot gravel and walking away allegedly stating that she was unable to take care of the baby anymore;

(d) a diagnosis allegedly given to the mother to the effect that the mother suffered from post-natal depression;

(e) the mother overdosed on pills on multiple occasions;^[3]

(f) the mother held weapons to herself on multiple occasions;^[4]

(g) in late 2019, in the presence of the children the mother held a weapon to her own throat threatening suicide;

(h) in late 2019 the mother left what the father described as a farewell note to the children; and

(i) in late 2020 the mother threatened self-harm in the presence of the children leading to her overdosing on painkillers and culminating in the mother’s overnight admission to hospital for observation.

45. The father deposed in his 6 March 2023 affidavit to his being contacted by police on several occasions in late 2021 and early 2022. The first event was in late 2021, according to the husband, when the mother reported the father to police allegedly for his arriving late at changeover. The father did not give a date on which the second event allegedly occurred. However, the father deposed to the mother reporting the father to police on account of neglect of the children while in the father’s care. The father stated in his affidavit that the mother did not witness any event on which the so-called neglect was based. The third episode occurred in early 2022, according to the father. On that date the mother reported to police that the father’s partner has assaulted the children.^[5] The father deposed that the victim of the strike (the middle daughter) said the strike was a “friendly tap”. The father also deposed that police had closed their investigation by the time the father attended Suburb F police station with a view to providing a statement.
46. He denied ever physically harming the applicant or the children.
47. The father deposed to receiving a letter from the mother’s solicitors on 8 February 2022 in which it was asserted that the mother maintained that the father’s partner verbally and physically abused the children when they were in the father’s care, that one of the children fell down the stairs by reason of lack of supervision and that the father failed to protect the children. The father deposed to that letter being accompanied by hand drawn sketches allegedly by the children depicting abuse by the father’s partner. The father denied that the drawings were accurate depictions of the events they purported to represent.
48. In his affidavit made 22 August 2022 the father deposed to the time he spent with the children after separation and prior to 3 November 2021.
49. It seemed to me that affidavit was significant for several reasons. First, it was replete with references to conversations that were in quotation marks as being, allegedly, direct quotes of the alleged conversation. In the recent decision of Jackman J of the Federal Court of Australia Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd,^[6] the vice of purporting to narrate using quotation marks words allegedly spoken by a person was highlighted, there being no evidence that the words in quotation marks were recorded. The vice was compounded by the deponent asserting that the direct quotation was narrated when the deponent concurrently asserted that words to a particular effect were said. In other words, in one instance the deponent asserted that the substance but not the words themselves of the conversation was narrated yet in the other instances the deponent asserted that words were said verbatim. Logically, it is one or the other but not both. I have proceeded on the basis that the substance of the relevant conversations as opposed to the precise words used was narrated by the father. I am not willing to assign to the words acceptance that those words were actually said. The first conversation recorded in parenthesis was in February 2021 while the affidavit was made in August 2022, that is to say 18 months later, there being no reference to the father having written down the words spoken by another as contemporaneous records of the quoted conversations. In my view, it is highly unlikely that 18 months after the words recorded in the father’s affidavit were first uttered, there being no contemporaneous records of the words actually used, the deponent actually recalled them word perfectly from memory to incorporate them in his affidavit. I am willing to proceed on the basis that the substance of the words alleged was or may have been used.
50. At all events, the father deposed to the children’s attitude towards him changing from February 2021, separation having occurred in October 2019. The father deposed to a text message exchange with the eldest daughter on 24 December 2020. It was as follows –

Father “[X], I want you to know that daddy very much wants to see you tomorrow for Christmas but mummy will not let me. Do you feel sad when you can’t see daddy on Christmas Day?”

[X] “Yes. Very.”

51. The majority of the father’s 22 August 2022 affidavit was devoted to his version of episodes of the conflict towards him during 2021. Those episodes revealed the mother’s anger at the father and the mother’s resentment at being left as a single mother and the father having re‑partnered with the mother’s former best friend. Accepting that English is not the mother’s first language, the words attributed by the father to the mother in a collection of paragraphs purportedly recording an assortment of interactions between the mother and the father showed that her language was foul, to say the least.
52. The father deposed to the mother’s social media posting in his 22 August 2022 affidavit. He deposed to the mother creating fake profiles of the father in which the mother described the father as being “not good” as a husband and “not good” as a dad. According to the father, the mother’s social media postings were denigrating of him and they reached the father’s business, the mother’s facebook viewers and the father’s family members.
53. Consent orders were made on 3 November 2021 conferring upon the father time with the children each Wednesday and on alternative weekends plus time on special occasions and half school holiday time.

THE SUBURB G TRAIN STATION INCIDENT

54. One of the more important events in this case occurred during an unplanned interaction between the father and his partner on the one hand and the mother and the children on the other hand in late 2021 at the carpark at Suburb G train station. During the trial of this proceeding, a visual recording of the incident was adduced in evidence, the recording having been taken by the father on his mobile telephone. The recording was played in open court and the father was questioned at length about the incident.
55. In his 22 August 2022 affidavit, the father deposed to the incident in late 2021 at the Suburb G train station car park. He deposed to driving to the car park with his partner with a view to travelling to the city. He deposed to arriving at the car park and it seems while still in his car although not then parked, he saw the mother and the children on foot. In his affidavit the father deposed to his hearing the mother identifying the father to the children in a matter-of-fact manner. The father deposed to parking his car, getting out and approaching the children. He said the mother began yelling loudly at him in response to which he said he attempted to calm her. He said that rather than the mother becoming less agitated, she paced around the car park shouting that the father was “attacking us”, which I infer was a reference to the mother and the children. The father said he maintained his distance throughout. He said two of the three children were attempting to block the noise by covering their ears. The parties agreed on an exhibit that was said to be a transcript of the interaction at the train station. It was as follows –

Father “Hey girls, how are you?”

Mother “Go, go, go. That not your job. Go. Go away, your family.

Go!”

Father “What’s wrong with you?”

Mother “Go your family”

Father “I can’t see my kids?”

Mother “No, of course not.”

Father “I am recording you because of your actions”

Mother “I know that”

Mother “Uh, here”

Mother “Um, your family please”

Father “That’s not my family [Ms Pasztor]”

Mother “Yeah, it is. Uh, your kid there. Your Wife there. Your”

Father “You need to calm down in front of the children”

Mother “No, no, no, no”

Father “You need to calm down in front of the children”

Mother “Oh, really?’

Father “Yes”

Mother “You drive”

Father “It doesn’t matter”

Mother “My friend in front of my children”

Mother “and you can’t”

Father “Hey, stop it.”

Father “Sweetie, I am so sorry” (spoken to [X])

Mother “No”

Father “[X], come here.”

Mother “[X], who in Daddy car”

Father “Come here, come here”

Mother “You, your family”

Father “She’s allowed to hug me”

Mother “No”

Father “She’s allowed to hug me”

Mother “No, no. Go your family”

Father “She’s allowed to hug me”

Mother “Go you family”

Father “Here [Z]” (hugs and kisses [Z])

Mother “[Z], [Z], no, [Z]”

Father “She’s allowed. That’s my daughters”

Mother “Um, your kids over there. Your Wife over there”

Father “Calm down”

Mother “No, no”

Father “You’re an embarrassment”

Mother “No, no”

Father “This is not the way you are supposed to act”

Mother “Ohhh, you are not allowed record me”

Father “I said I am recording you because of your actions”

Mother “No, you didn’t, you record from there”

Father “This is damaging”

Mother “No, you record from your family”

Father “[Ms Pasztor], this is damaging”

Mother “No, I want to tell people. Excuse me, help. Excuse me”

Father “[Ms Pasztor], this is damaging”

Mother “Excuse me, he attack us”

Father “I am not attacking at all. There’s no attack”

Mother “No, he attack us, please”

Father “Wow”

Mother “Please”

Father “Where’s the attack”

Mother “Someone help”

Father “Where’s the attack”

Mother “No, I want to ask”

Father “Tell me how I attacked”

Mother “No, you record me that”

Father “Because I knew you would be”

Mother “And look your wife”

Father “You’re manipulate… That’s.. Wife… I knew”

Mother “Your wife do that too”

Father “I knew you would manipulate and harm”

Mother “Of course not”

Father “The children”

Mother “How, I harm the children?”

Father “This is not… Look at your actions”

Mother “What did I do?”

Father “This is not…”

Mother “Huh, you go with your wife”

Father “Oh my God”

Mother “Huh, you come to my family and you record us”

Father “Because you are going to act like this. Look at…”

Mother “No, I am not”

Father “They’re scared”

Mother “If you don’t come here I will not”

Father “Look at their faces”

Mother “Your face what”

Father “They’re scared of the yelling”

Mother “If you go over there your family I will not do that”

Father “Sorry girls. I am sorry. Daddy’s not yelling. Sorry, have a good day, ok. I love you”

Mother “Oh you love”

Father “Just stop it”

Mother “Look, look, go with that lady. Dirty lady”

Father “Just stop it”

Mother “Ewww” (snickering)

Father “Just stop it”

Mother “Hooo”

Father “This is not what we’re supposed…”

Mother “She is very dirty. Look at her”

Father “Wait, wait a minute”

Mother “Look, look at her”

Father “Stop”

Mother “She”

Father “Stop”

Mother “She very dirty. Excuse me…”

Father “Stop”

Mother “Excuse me, he attack me”

Father “I am not attacking anybody”

Mother “Excuse me, he attack me”

Father “And he is not involved anyway”

Mother “Look, no”

Father “Oh Jesus, [Ms Pasztor]…”

Mother “[Z], come here”

Father “[Ms Pasztor], we have agreed to separate. This is not…”

Mother “No, I am not agree”

Father “You not agree? You can’t force me not to?

Mother “No, I am not agree. No, I not agree”

Father “You did agree. You signed the paper”

Mother “I not agree because I have no money. You took all money from me for that lady”

Father “No, I did not”

Mother “You took all our money for that dirty lady”

Father “That’s not true and you know it”

Mother “No, that dirty lady took all our money”

Father “That’s not true and you know it”

Mother “No. Yes.”

Father “We are allowed to get on with our lives. We became close, it’s my…”

Mother “No you not”

Father “Wow”

Mother “You not allowed. You have to give us money, but you not”

Father “I am giving you the child support”

Mother “You not”

Father “Are you joking”

Mother “Child support”

Father “What are you saying”

Mother “You have to support me for 10 years after”

Father “Wait a minute, are you talking about some sort of settlement?”

Mother “Yes!”

Father “That we haven’t even agreed to?”

Mother (Speaks [Country E language] to the children).

Father “Alright, have a nice day girls”

Mother “No, dirty lady”

Father “Bye”

Mother “Is very dirty”

Father “Go, have a nice day. Girls I love you”

Mother “Yes, yes she saw everything”

Father “Yes, sweet… Yes, bye girls I love you, bye”

Mother “Oh hold on” (speaks [Country E language]) “See that, they allowed for Daddy take care of them every day but their Daddy take care of other dirty lady”

Father “We are allowed to get on with our life”

Mother “Uh, yes right. So why you have kids for?”

Father “Sorry” (whispers towards the children).

Mother “For take care of them, not take care of other”

Father “We separated. Are you joking?”

Mother “Yes. Look, that they are call you Dad. They are call you Dad or they are call you Dad?”

Father “Of course… But look at the way you’re…”

Mother “No”

Father “Wow”

Mother “Look, dirty. She have kid with other man”

Father “Go on. Bye. Have a … Bye”

Mother “Look at them. They are happy with me”

Father “They are happy with me when you don’t yell. They are scared of you [Ms Pasztor]. [Ms Pasztor], they are scared of you. They’re… Of course they need…”

Mother “Ask them that. Ask them that. Do I go with other man kid? Do I?

Father “We can’t live together, cause we fight”

Mother “No”

Father “That’s the reason”

Mother “I wish […] here”

Father “Who?”

Mother “[…] here”

Father “[…] here”

Mother “Excuse me, this man attack us”

Father “I am not attacking anybody”

Mother “Yes, he did”

Father “He doesn’t. He doesn’t…”

Mother “He try attack me”

Father “He doesn’t want to get involved”

Mother “He record us”

Father “Because you’re manipulating”

Mother “No, he record us”

Father “This is considered harming the children”

Mother “Excuse me. Any one help me”

Father “Wow. See you later. See you later”

Father “Sorry” (whispers to [Y] and [Z])

Father “[Y], I am sorry sweetheart. I am sorry”

Mother “No, don’t say sorry when you go with dirty lady”

Father “There’s… The reason”

Mother “They are dirty”

Father “Listen to me. The…”

Mother “They steal you from my kids”

Father “The reason”

Mother “No. I am not angry like this if you don’t do that”

Father “I want to tell you something. The lawyer is going to see this video, by the way. That’s why I am recording it”

Mother “You record me. Excuse me, she come attack us”

Father “No one is attacking anybody”

Mother “He record me. He say”

Father “He doesn’t care because he knows I am not anywhere near you. Calm down”

Mother “No. If you don’t come to me…”

Father “This is not”

Mother “I quit already. That’s my car. That’s your car. Your family”

Father “You yelled out say hi to Daddy”

Mother “I don’t want to, say you to you”

Father “Yes, you did”

Mother “No. Why don’t you record your dirty lady?”

Father “Because she is not doing anything”

Mother “Huh, of course because she have your protect. I have no one around me”

Mother “Of course she is happy with you because you protect her”

Father “Go, go. Enjoy with the kids. Bye”

[Ms N] “Ok, we go”

Mother “Too dirty. Dirty”

Mother “Suck my dick. Suck my Husband dick.

Father “Wow, that’s…”

[Ms N] “Wow, wow” (inaudible) Hey, we need go”

56. Having watched the video and read the transcript of the incident, several things must be said.
57. First, the version of the event as recorded by the father at paragraph 45 of his 22 August 2022 affidavit was highly sanitised. It failed to accurately narrate the precise exchange between the father and the mother over a sustained period and instead recorded the more unpleasant words uttered by the mother, wholly omitting the father’s conduct in goading the mother.
58. Second, the father filmed the interaction at the train station car park without pause, despite the noticeable distress the incident was causing the mother and the children. He could easily have stopped. He chose to do otherwise.
59. Third, rather than attempting to diffuse the highly emotionally charged situation the father persisted in filming and persisted in debating with the mother in a provocative manner, all in the presence of the children.
60. Fourth, seeing the distress being suffered by the children, the father made no endeavour to alleviate their upset and instead he continued to follow the mother while filming, exchanging insulting comments.
61. He could have left, without filming, once he discovered the mother and children at the car park. He failed to do so. In fact, he escalated the incident by continuing to film the mother and children and by continuing to debate the mother’s grievances with her. He paid virtually no regard to the trauma the event was causing the children. I take the view he was determined to record the episode.
62. He was asked why, when he was in the witness box. He said he did so to protect himself. He explained he was gathering evidence so that he could protect his position and he best did that by filming the event. Yet he failed to appreciate that his continued filming escalated the already highly charged event so his purpose in filming in fact exacerbated the consequences from which he was endeavouring to protect himself. That revealed to me an utterly bewildering process of logic and reason. It also demonstrated how very unfocused he was on issues important to his children. Rather than shielding them from crisis, he created it. Rather than protecting his children, he subjected them to the pain and suffering of being eyewitnesses to the disgraceful behaviour of their parents.
63. The father admitted that his behaviour was extremely poor during the episode at the Suburb G train station. On that issue, I agree with him. In my view his behaviour during that episode was very telling of his lack of parental insight.
64. The father deposed to the events of the summer holidays of 2022 while the children were in his care. Nothing adverse emerged from that information. In paragraph 49 of his 22 August 2022 affidavit the father purported to narrate a dense and complicated exchange he had with his eldest child. As with other instances in which he recounted conversations, he expressly stated that the conversation was to the “following substance and effect” then he recorded word perfectly with the precise words used by him and by his eldest daughter in parenthesis, presenting the conversation as if in transcript form. He did not produce any note made contemporaneously with the conversation from which it may have been possible to assess the accuracy of the contents of his affidavit for fidelity to the information in the notes. In those circumstances I decline to treat the contents of paragraph 49 of his affidavit as being a faithful representation of actual words used by the speakers. Instead, I have proceeded on the basis that the information in paragraph 49 of the father’s affidavit represents no more than the substance of the conversation. Understood in those terms in that paragraph the father recorded that his eldest daughter told him that the mother may have struck the eldest daughter because of a social media posting the father put on facebook. That information went into evidence without objection.
65. In that same period of summer holiday time the father had with the children, he deposed to the children’s reluctance to participate in telephone calls with the mother.
66. The father deposed to being visited by police at his workplace in early 2022 in response to an allegation by the mother that the father was neglecting the children. He said he denied the allegations, although he did not say how the police visit ended in early 2022.
67. However, the father deposed to receiving a telephone call from Child Protection Services in mid-2022 during which the father stated that representatives from Child Protection Services made allegations of child neglect which the father said he denied.
68. The father further deposed to his receiving a telephone call from Suburb H police in mid-2022. The father said a police officer reported to the father that the eldest child told the police officer that the eldest child did not want to spend time with the father that particular weekend. The father deposed to asking the eldest daughter about the call to which, according to the father, the eldest daughter admitted that the mother pushed the eldest daughter to call the police to say she did not wish to spend time with the father.
69. Very unhelpfully, the father’s affidavit was not chronologically sequential.
70. The father back tracked chronologically in his affidavit to events of early 2022, recounting an interaction he had with the mother when he attempted to collect them following their half‑holiday time with the mother. The interaction was accusatory in nature, according to the father, with the mother asserting that one daughter had been hit and that another daughter fell down stairs while in the father’s care and that another had been forced to wash dishes. The father deposed to disputing the mother’s assertions, attempting to call the children over without success then leaving without the opportunity of speaking with the children. He said he later discovered that the mother had secretly recorded the interaction then posted the recordings to social media.

THE SEXUAL INTERFERENCE ALLEGATION

71. The more important matter that fell for my determination in this litigation was the truth or otherwise of an assertion that the father had sexually interfered with the youngest child in mid‑2022 when the child was four years of age or thereabouts.
72. The evidence on this particular issue was complicated and it is necessary to address it in some little detail as had been done in the passages that follow.
73. By way of overview, the incident concerned events during a weekend in mid-2022 when the children, including the youngest, were spending time with the father. During a conversation between the father and a representative of the Child Protection Unit of Suburb F police, police alleged that the father had sexually abused the youngest child in July 2022. The version of event was narrated by the father in paragraph 68 of his 22 August 2022 affidavit. It is utile to record that paragraph in full as follows-

“[In mid] 2022, I received a call from the Child Protection Unit of [Suburb F] Police. During that telephone call, it was claimed that allegations were made that I had sexually abused [Z]. During my time with the children on the weekend […], [Z] complained on Sunday […] that her bum was sore just before preparing for a shower. I said to [Z] words to the substance and effect of “Where are you sore sweetheart”. “[Z] pointed towards her front, so I said to her “Oh, you mean your wee wee?” [Z] nodded her head following this. I then proceeded to very gently inspect the area, ensuring that I was only making contact with outside of her private area and I could see some red present on the surface of the skin. I then asked [Ms N] to come into the bathroom for assistance and advice. I sat [Z] up on my knee and [Ms N] said to me words to the substance and effect of “My daughter sometimes has the same issue, and it may because of the cold weather or because [Z] wears a nappy at night”. I then said to [Z] “Everything is ok. It will feel better soon”. I then helped her shower, gently washing over her body. At no point did I do anything that could be misconstrued as sexual.”

74. That seemingly innocuous recital of events was the extent of the father’s evidence-in-chief on the matter.
75. Then followed, according to the father, a text message from the mother to the father, although that text mainly concerned financial matters, so he said.
76. The father deposed that in mid-2022 he attended an interview at Suburb F police station with a representative of the Child Protection Unit. He deposed to the police informing him at the conclusion of the interview that no further action would be taken.
77. He then deposed to receiving a text message from the mother refusing him any time with the children, largely on account of a report the mother sent by text to the father. That report was prepared by a medical practitioner by the name of Dr J. It was dated 27 July 2022. According to the father, in the report Dr J stated that the child had informed Dr J that the father had inserted his finger inside the child’s vagina.
78. He denied the assertions attributed to him in Dr J’s 27 July 2022 report.
79. The father deposed to a case worker from a Metropolitan Child Protection Response Programme telephoning him in mid-2022 with a request for the father to be interviewed the next day, which he said he did.
80. In mid-2022, during the evening and following the interview conducted earlier the same day, the father placed the youngest child in the front passenger seat of his car and interrogated the child about what she told Dr J. A video recording was taken by the father on that discussion, which went into evidence along with an agreed transcription of the words actually spoken.
81. The transcript agreed by the parties was as follows –

Father “Ok [Z], I want to know I’m recording now? Ok?”

[Z] “Ok”

Father “The reason I’m recording is cause I need to ask you some really serious questions”

[Z] “Yes”

Father “Ok, I don’t want you to be scared, but what’s really important sweetheart is that you always tell the truth. You know about true right?”

Father “You know the difference?”

[Z] “Yes”

Father “Like if someone asks you something, you tell the, the real, the true, version, the true thing that happened, alright”

[Z] “Yes”

Father “Ok sweetheart, now did daddy, me, put his finger inside your wee wee?”

[Z] “No”

Father “Right, so can I ask sweetheart, why why did you or mummy, I’m not sure if, I think you did, why did you say that to the doctor? Can you tell me?”

[Z] “Mm mmm”

Father “Sweetheart”

[Z] “Mm mmm (Don’t Know)”

Father “You don’t know, can can you tell me truthfully sweetheart, did mummy tell you to say that?”

[Z] “Mm yeh”

Father “Sweetheart”

[Z] “Mm yeah”

Father “She did”

[Z] “Mm yeah”

Father “She did she told you to say those words”

[Z] “Yeah”

Father “What can can you tell me more? What mummy said to you? What what actually did she say? Did she say she would be angry if you didn’t say them? Sweetheart?”

[Z] “No”

Father “So what, what she she did she teach you what words to say?”

[Z] “Yes”

Father “Sweetie you know that those words are very serious, and Daddy can go away a long time and never see you again”

26. “Yes?”

Father “I don’t want that”

Father “You don’t want never see daddy right?”

[Z] “Uh”

Father “Sweetie, like you want like you want to see daddy”

[Z] “Yes”

Father “Yeah, sweetie look at me please sweetie over here, you want to keep seeing daddy”

[Z] “Yes”

Father “Ok so you need to always tell the truth sweetheart”

[Z] “Yes”

Father “So what, can, you don’t know, did mummy mummy make you feel, are you scared of mummy”

26. “No”

Father “So why did you say the words sweetheart?”

“Mummy just told you to say that to the doctor”

[Z] “Yes mmm”

Father “What, yes or no”

[Z] “Yes”

Father “Wow wow sweetie I want you to know that you can never, never tell story to the doctor unless it’s true sweetheart cause you know something sweetie that time you say your bottom was sore, remember at daddy’s house the only thing I did was look with my eyes, do you remember”

“Yes”

“I only look with my eyes right?”

“Yeah”

“Yeah and then, then what happened after that? I asked [Ms N] to come and look. Do you remember?”

[Z] “Yes”

Father “And she also only looked with her eyes, right?”

“Yes”

“And then after that. Do you remember what happened. What happened next”

[Z] “Inaudible”

Father “Did we go in the shower? Right, and that was it. You showered, I helped you shower and then you put your clothes on and that was it, right”

[Z] “Yes”

Father “Ok, and one more thing I need to ask. Just one more ok, and then we can go eat McDonalds, alright?”

“Did [Ms N] or daddy ever it you?”

[Z] “No”

Father “Ok sweetheart, that’s all I need to know ok. We’re finished I love you so so much okay sweetie. Alright sweetie”

82. Aside from the confronting circumstance to the youngest child of being placed in the front seat of the father’s car after her siblings had been sent inside to a nearby fast food outlet, only to be interrogated by the father and filmed, I record my strong disapproval of the father’s behaviour in undertaking that course of conduct. The child was not then five years of age. She was asked as if an adult to understand the concept of and importance of telling the truth. She was told by the father to tell “the real version of what happened” (his words) and then she was asked about digital vaginal penetration, the father using language he must have considered more understandable to a four year old –

“did Daddy, me, put his fingers inside your wee wee?”

83. She answered in the negative. Precisely why he thought it relevant, useful, probative or forensically maintainable to obtain a response to that question went wholly unexplained. No matter what answer the four year old child gave, the father subjected his child to what I regard as intimidating conduct in extracting the answer.
84. But he kept going, pursuing why the child told the doctor that the father had in fact put his fingers (plural) in the child’s “wee wee”. As it happened, Dr J’s report said no such thing. In other words, Dr J’s report spoke of the observable physical state of the exterior of the child’s vagina. At no point did Dr J’s report state that the father had in fact inserted “fingers” (plural) in the child’s vagina. Yet the father put to the child as a fact that the child had actually told the doctor that he had in point of fact, inserted more than one finger in the child’s vagina when the child had said no such thing to the doctor.
85. The father then put to the child that the mother had told the child to say “those things”, a proposition with which the child agreed.
86. He also told the child that the words used were very serious and that “daddy may not be able to see (her) again”.
87. Before addressing Dr J’s report, it is necessary to make some observations about the father’s conduct in undertaking the conversation he had with the child in his vehicle. First, it represented very poor parenting, in my view. Whether or not the father took the view that it was important for him to put his version of events to the child is largely irrelevant because, assessed objectively, the father should not have engaged his very young child in an adult conversation about issues of the truth and the importance of telling it, of the factual metric of digital vaginal penetration, or information given to the doctor and of the mother telling the child what to say to the doctor. The father, by his conduct, was immersing his youngest child in all the unpleasantness of what was emerging as a potential episode of interfering with a child. Had the father been more child-focused, he would not have introduced his youngest child to the whole episode. Yet, he was not child-focused in his parenting obligations. Instead of shielding such a young child from the matters with which Dr J was concerned, the father exposed the child to it and thereby immersed her in it, probing as to the facts of the incident as well as probing in relation to the source of the words allegedly uttered by the child to the doctor. That behaviour was disgraceful. Precisely what the father sought to achieve by his interrogation of the child in August 2022 went unsaid.
88. It will be recalled that the father’s version of events as set out above of the detection of redness to the youngest child’s vaginal area in mid-2022 did not descend to the events that most immediately followed in chronological sequence.
89. In her affidavit made 1 May 2023 the mother deposed to the events of a few months earlier. She deposed to collecting the children from the father’s care at 8.30pm. She said she took the children to her home. Soon upon entering her house, the mother deposed that the youngest complained that her “wee wee hurt” (the mother’s words). The mother inspected the youngest child’s nappy prior to sleeping. The mother deposed to seeing “inside her wee wee”. The parties’ desire to attribute childish descriptions to biological and anatomical issues made it all the more difficult to understand what the mother was there conveying. At all events, the mother said “it was really red and she said it hurts” so the two older children went to sleep without the mother doing more. The youngest child, according to the mother, before sleeping said to the mother “daddy touched my wee wee”. The mother said it was too late so they slept.
90. Going no further than that with the mother’s version of events, I am not required to accept evidence, even if it is uncontroverted, if that evidence is improbable.^[7] In the version of events just narrated by the mother the child told the mother that the child’s “wee wee” (which I took to mean her vagina) had been touched by the father and the mother observed inside the child’s “wee wee” to see it being red, in respect of which the child told the mother “it hurts”. The child then informed the mother that the father had touched the child’s “wee wee”.
91. Informed of those factors, the mother said she then let the child sleep. In my view it was highly improbable that the mother did nothing once she was told of an allegation of child interference. I became concerned that the mother was being less than faithful to her oath to the truth, the whole truth and nothing but the truth as the High Court held a witness must be in Kuhl v Zurich Financial Servies Australia Ltd.^[8] It struck to me as improbable that the mother saw redness to her child’s vagina and then heard an allegation that the father touched her vagina but did nothing more. As a matter of common human experience, information given to a mother that her daughter had been interfered with rarely leads to a complacent approach thereafter by the mother.
92. At all events, the mother deposed to checking the dryness of the youngest child’s nappy the next morning and asserting that it was “very dried” (the mother’s words), there was “redness inside her wee wee and it was still very red” (the mother’s words). The mother further stated that the youngest child told the mother that the father had “touched my wee wee by his finger” (the mother’s words). The mother said she asked the child “how long” to which the child said “very long”, which I took to be a reference to the duration of the touching although by no means was the issue anything but ambiguous.
93. It seemed that the mother then took the youngest child to a general medical practitioner at Suburb K. In viva voice evidence given in response to questions put in cross-examination, the mother stated that she did not see a medical practitioner that day as police were involved thereafter. The mother referred in her affidavit to interviews involving police, the mother and daughter over weeks yet the youngest child did not speak after which police closed their files.
94. In July 2022 the mother deposed to taking her youngest daughter to a medical practitioner. Dr J provided a report on the matter dated 27 July 2022. It was in the following terms (sic) –

“attended back seen by police no one was avallabel to examine child so applt booked for her to get examined by forensics next monday complaining of pain when passing urine mum also attended with her other 2 siblings mum wanted me to examine [Z] as she is worried about the redness outer aspect redness has resolved but mum doesnt know if inner aspect of labia and private after calming patienla nd speaking to her for a while in Mum’s presence external examination of genitalia redness noted both sides lower aspects of vaginal orifice – non accidental injury suspected no redness over clitoris or inner aspect of labia and outer aspect of labia chidl told me and demonstrated that finger was Inserted by her adad inside her vagina and told me dad did it after opening her nappy and did it at night she mentioned dad did it for a long time urine dip nad still sent for MSU. Actions Request printed to 4Cyte Pathology: urine MSU. Prescription printed: Clotrimazole 1% Cream apply three times daily for 7 days.”

95. Dr J was not called to give evidence.
96. Of the more important information in Dr J’s report were the doctor’s physical observations. Those included –

(a) outer aspect redness had resolved;(b) the external examination of genitalia revealed redness to both sides of the lower aspects of the vaginal orifice; and

(c) no redness over the child’s clitoris or the inner aspect of her labia and the outer aspect of labia.

97. The mother relied on that report from Dr J to support the mother’s assertion in paragraph 155(K) of her 1 May 2023 affidavit that the father touched the youngest child’s vagina and left a scratch insider her vagina. The report from Dr J spoke of information given to Dr J by the child that the father touched the child’s vagina. Dr J’s report also spoke of the child demonstrating the insertion of a finger into her vagina, allegedly by the father. There was no mention in Dr J’s report of any scratching on the inside of the child’s vagina as the mother asserted in paragraph 155(K) of her 1 May 2024 affidavit.
98. Consultant paediatrician Dr L provided a reported dated 8 August 2022 although she was not called to give viva evidence during the trial. This was an important document for the purposes of the allegations about the father interfering with the child. Several key issues arose from Dr L’s report. Those included the following –

(a) Dr L saw the mother and the youngest daughter in mid-2022 in the presence of a child protection unit registrar and social worker plus a Country E interpreter;(b) Dr L received and relied on information provided by the mother, as well as the 27 July 2022 letter from Dr J, the youngest child’s medical reports plus photographs of the child taken by the mother in mid-2022;

(c) the mother told Dr L –

(i) in mid-2022, the mother saw that the child’s “wee wee” was red and the mother photographed that;(ii) the following morning the child told the mother that the father had touched the child;

(iii) the child answered the mother’s request for clarification by stating that the father wanted to touch the child’s “wee wee” when the child was sleeping;

(iv) the child stated that the touching of her wee wee (as she used that phrase) was by finger;

(v) in answer to the mother’s question whether the child told the father to stop, the child said “daddy said no”;^[9]

(vi) the father touched the child by putting his finger inside the child’s underwear and inside her vagina; and

(vii) the duration of the father’s touching was “very long”.

99. Dr L obtained information from Dr J. The following was the more important information provided by Dr J –

(a) Dr J conducted an external examination of the child’s genitalia in which the doctor observed redness to both sides of the lower aspects of the vaginal orifice;(b) no redness was detected over the clitoris or inner aspects of the labia or other aspects of the labia;

(c) the child demonstrated the father’s insertion of a finger into the child’s vagina;

(d) the child said the father inserted his finger in the child’s vagina after opening her nappy at night and over a long time;

(e) on examination Dr J found that the child’s clitoral hood, urethral opening and paraurethral bands were normal;

(f) examination also revealed that the external labia was normal with no redness or inflammation;

(g) examination further revealed that an area of linear mucosal trauma (possibly an abrasion or heading laceration) was noted at the left inner labia minora;

(h) normal crescentic hymen was observed with no injuries; and

(i) the child had no evidence of genital bleeding or discharge.

100. Photographs could not be taken nor were forensic examples obtained.
101. Before addressing Dr L’s summary and conclusions, it is utile to point out that Dr L relied as a primary source of information on Dr J’s report and information from the mother together with the results of a limited physical observation, there being no contemporaneous photographs or forensic samples. To the extent that the father’s involvement in the events of mid-2022 were mentioned by Dr L, any such information was based on the mother’s narration of it.
102. It is also relevant to observe that Dr L was not requested to provide an expert’s report in which she was asked to express opinions in answer to specific questions. As the opening sentence of Dr L’s report narrated, she was requested to undertake a medical assessment of the parties’ youngest child against a backdrop of the mother presenting the child to O Hospital Emergency Department with “concerns regarding possible sexual assault” (Dr L’s words). No evidence in the case was adduced about the parametres of a “medical assessment” and what, as a matter of the medical speciality paediatrics, a “medical assessment” ordinarily encompasses. In this case, whether requested to provide one or not, Dr L volunteered a collection of opinions on certain issues. Whether her field of specialist expertise generally enabled her to express those opinions in a manner rendering it admissible or probative within the contemplation of Makita (Australia) Pty Ltd v Sprowles^[10], Dasreef Pty Ltd v Hawchar^[11], Honeysett v R^[12] and Lang v R^[13] was unexplored in the evidence. For that matter, Dr L did not provide a curriculum vitae from which her advanced training or practical experience could be considered nor was it possible to see how she was qualified to express those opinions. As has already been stated, she was not called to give viva voce evidence. It was not possible to test her various hypotheses.
103. At all events, several observations must be made of her summary and opinion.
104. First, in the third paragraph on page seven of her report Dr L stated that a linear lesion was visible at the mucosal (inner) aspect of the left labia minora which lesion was “most likely an area of healing mucosal trauma, either a healing laceration (ie a superficial “cut”) or an abrasion (ie a “scratch”).
105. Dr L expressed the opinion that “this injury” (which I infer to mean the healing mucosal trauma) at the left labia minora was “highly likely caused by penetration of the genital area beyond the labia majora from an object, finger or penis.” She expressed the opinion that the linear nature of the lesion meant that trauma from a fingernail caused by digital penetration was considered the most likely cause. She said there may have been other mechanisms.
106. She said it was not possible based on examination to determine who or what caused the penetrative trauma.
107. Dr L expressed the opinion that a self-inflicted injury by the child was a possible but unlikely cause.
108. Dr L said that it was not possible to state how old the injury was, genital mucosal lacerations taking about a week to heal with abrasions taking a few hours to a few days to heal. Dr L was careful not to positively verify the trauma she observed as being either a healing laceration or a healing abrasion. She suggested but did not affirmatively state that the trauma was suffered by the child prior to a date in late July 2024.
109. Dr L expressed her reluctance to offer an opinion about the child’s condition based on a photograph provided by the mother, allegedly taken after the child was returned to the mother’s care by the father in July 2022. Dr L stated that photographs cannot be verified as to the taker, the date or time on which the photograph was taken but also whether the photograph had been altered in any way.
110. Dr L recommended further investigation.
111. At its core, Dr L suggested that the most likely explanation for the lesion she observed was from a fingernail caused by digital penetration. She excluded self-inflicted injury. She stated it was not possible to determine who or what caused the penetrative trauma. Dr L expressed the opinion that the area of mucosal trauma at the labia minora was the most likely explanation for the child’s ongoing complaint of pain on urination. Dr L discarded vulvovaginitis as an explanation for the child’s ongoing symptoms of pain.
112. Having excluded vulvovaginitis as a likely cause of the child’s symptoms of pain upon urination by the time the child saw Dr L in mid-2022, Dr L suggested that a likely reasons for that pain was the mucosal lesion (either laceration or abrasion). Dr L took the view that the trauma was sustained prior to that time. She also stated that a laceration took about a week to heal whereas an abrasion took a few days to heal. Yet Dr L stated she detected evidence of a trauma when conducting her examination of the child some days later. Further, Dr L expressed the opinion that the child’s vulval skin was normal in mid-2022 with no evidence of vulvovaginitis revealing vulvovaginitis an unlikely cause of pain suffered by the child in a month later when urinating.
113. Dr L therefore reasoned that the most likely cause of injury to the left labia minora that created a linear lesion was trauma from a fingernail caused by digital penetration, although she was unable to say who or what caused the penetrative trauma.
114. Dr L ruled out the possibility of a self-inflicted injury because, so she said, the location of the injury was generally not one prone to trauma from children scratching or touching themselves in their genital area.
115. Having said that it was not possible to determine who or what caused the penetrative trauma, in particular she could not say whether the trauma was caused by an object, finger or penis, Dr L nevertheless stated that the trauma from a fingernail caused by digital penetration was the most likely cause, although she also stated it was not possible to determine who or what caused the trauma.
116. The High Court decisions of Dasreef Pty Ltd v Hawchar^[14], Honeysett v R^[15] and Lang v R^[16] as well as the decision of the Court of Appeal of the Supreme Court of New South Wales in Makita (Australia) Pty Ltd v Sprowles ^[17] all speak of the need for a person purporting to express an expert opinion to explain his or her path of reasoning that underpins the particular conclusion being expressed by the expert. Here, no path of reasoning was given by Dr L to explain her conclusion that the trauma to the child was caused by a fingernail during digital penetration. She said a fingernail caused by digital penetration was the most likely cause of the trauma, yet she also said she could not determine what caused the penetrative trauma. She did not produce a curriculum vitae from which a reader may have been able to see that her previous expertise in conducting examinations of the same type as the one in issue in this case enabled Dr L to state that a fingernail was the likely cause of the child’s injury. Self-inflicted injury by fingernail from digital penetration was possible yet Dr L excluded it as a likely cause.
117. It must not be overlooked that Dr L reported that she had been told by the mother that the child told the mother who told Dr L that the father interfered with the child.
118. Having stated that the trauma could have been caused by an object, finger or penis in view of the linear nature of the lesion, Dr L took the view that a fingernail introduced by digital penetration was the most likely cause yet Dr L gave no explanation for excluding the linear nature of the lesion having been caused by the introduction of an object.
119. Dr L’s failure to enter the witness box denied me the opportunity of better understanding the possible causes excluded by Dr L as being one of the causes of the child’s lesion.
120. The father was cross-examined about the incident leading to the trauma Dr L examined. He denied interfering with his youngest daughter, whether in the manner alleged or at all.
121. No direct evidence was adduced about the actual cause of the lesion observed by Dr L. In this case the mother invited me to conclude, according to the civil onus of proof, that on the balance of probabilities the father caused the linear lesion to the child of which Dr L reported. That required me to reach a state of persuasion to the effect that it was more probable than not that the linear lesion at the mucosal aspect of the left labia minora was caused by the father, the most likely cause of which being by a fingernail following digital penetration.
122. A recent consideration of the evidentiary concepts involved in the notion of proof on the balance of probabilities was offered by Lee J of the Federal Court of Australia in Lehrmann v Network Ten Pty Ltd (Trial Judgment),^[18] when considering s 140 of the Evidence Act. It must be kept in mind that the gravity of the fact sought to be proved is relevant to the degree of persuasion. Here, the fact alleged was that the father had sexually interfered with his child. That was an extremely serious allegation for the mother to make. In another context it carried a criminal law overlay. The mother used her allegation that the father had sexually interfered with the youngest child as a basis for seeking orders for sole parental responsibility for all children. She also sought a finding that the father in 2022 had interfered with one of his daughters and that, predictively, he was an unacceptable risk to his children going forward into the future.
123. I was not persuaded on the balance of probabilities that the father in fact sexually interfered with his youngest daughter on the weekend in mid-2022. Having regard to the seriousness of the allegation, I did not feel a comfortable state of satisfaction that the father caused the injury to the vaginal area of the youngest child about which Dr L gave evidence. It was significant in my view that Dr L did not say in her report that she had previously examined very young children who had been injured through digital finger penetration of the left inner labia minora resulting in linear mucosal trauma, such trauma having been caused by the perpetrator’s fingernail. No such evidence was adduced. I took the view that Dr L was speculating as to the cause of the trauma to the child. That did not equate to proof on the balance of probabilities in such a serious case as this. No such proof was given in this case on that issue.
124. It is one thing for me to find on the balance of probabilities that the father did not sexually abuse his youngest child. It is an altogether different thing to say that in accordance with the test prescribed by the court in Isles v Nelissen^[19] the father presents an unacceptable risk of harm to the children. I take the view that he does not. To the contrary, while he lacks insight into certain issues he dearly loves his daughters and they love him. He and the mother are unable to get along. In the presence of one another the level of their volatility is raised yet when neither interacts with the other, their lives are apparently stress-free. The point was made most perceptively by Ms D, psychologist and social worker who produced a reported dated 15 July 2023 and who very helpfully gave extensive viva voce evidence. The gravamen of her recommendations emerged in the answers she gave to questions put by counsel as well as by me. Ms D said the children inevitably will come into contact with circumstances in which their parents interact. She said the ideal situation was one where parental contact as between the two is limited as much as possible.^[20] She said the children, in living with one parent and spending time with the other, will be exposed to parental conflict. She said that if I were to find that the children are safe in each parent’s care, then they are safe.^[21]
125. However, Ms D said that the risk of psychological harm to the children needs to be addressed. She said a risk of psychological harm to the children exists by severing the relationship a child has with one parent. She said a risk of psychological harm to the children exists in exposing them to ongoing conflict among parents. Ms D said the issue was one of weighing up which of those causes of psychological harm was going to be worse.
126. Ms D expressed the opinion that no time should be allowed for either parent who exposes the child to an unacceptable risk of harm, including psychological harm.^[22]

THE MOTHER’S PSYCHOLOGICAL STATE

127. The father gave evidence that he was concerned about the mother’s psychological state for a long time. The father said that the mother behaved in a manner that was at times irrational, even prior to separation. The father gave evidence that prior to separation he was concerned about aspects of the mother’s psychological condition, especially by reason of what he said were unprovoked outbursts of anger by the mother. It serves no useful purpose to categorise the episodes on which the father relied because Ms M, forensic psychologist, who saw the mother for the purpose of preparing a mental health assessment of the mother, concluded that by application of a collection of standards, the mother does not have any symptoms warranting a psychological diagnosis. Ms M also concluded that the mother did not demonstrate any behaviour indicative or suggestive of risk of harm to herself or to the children and instead, Ms M took the view that the mother showed appropriate concern and care for the children.
128. Ms M was cross-examined by all counsel. I asked her whether she had conducted a parenting capacity assessment on the mother to which Ms M said she had not.
129. The overall gravamen of Ms M’s evidence was to the effect that the mother did not have any psychological issues that may bear upon the mother’s proper discharge of her parenting role. No evidence was called on behalf of the father to challenge that conclusion.
130. Ms D was of the view that if the children were at risk of harm when in the care of either parent then orders should be made for the children to live with the parent who did not present a risk of harm. On the evidence as found –

(a) I am not persuaded that the father interfered with the youngest child in the manner asserted;(b) he therefore did not present an unacceptable risk of harm to the youngest child or to any child;

(c) therefore no logical or evidentiary reason supported a conclusion that he should have no time with the children or any one or other of them;

(d) to the contrary, the father presented and the evidence revealed that the father was a loving and caring parent towards the children;

(e) I was not persuaded that the mother presented an unacceptable risk of harm to the children by reason of any mental or psychological infirmity on her part;

(f) no logical or evidentiary reason supported a conclusion that the mother should have no time with the children or any one or other of them;

(g) to the contrary, the mother presented and the evidence revealed that the mother was a loving and caring parent towards the children; and

(h) the mother’s and father’s interactions with one another presented an unacceptable risk of psychological harm to the children when they came into contact with one another.

131. Ms D described the need for the children to be safe when in the care of each parent. She gave her evidence on 12 June 2024.
132. Amendments effected by the Family Law Amendment Act 2023 commenced operation on 6 May 2024. Those amendments are expressed to apply to all proceedings commenced on or after 6 May and all proceedings on foot by that date except when a trial was already commenced by 6 May 2024. The trial of this proceeding commenced in February 2024, prior to the 6 May 2024 commencement date of the 2023 amendments to the Family Law Act. Therefore, the legislative regime in operation immediately prior to the commencement on 6 May 2024 of the Family Law Amendment Act 2023 continued to apply.

THE RESPECTIVE PROPOSALS BY ALL PARTIES

The father’s proposals

133. As applicant, the father put forward his parenting proposals in his further amended initiating application sealed 30 October 2023. In that amendment, the father substantially altered the relief he earlier sought, which earlier included a proposal for orders conferring equal shared parental responsibility upon both parents. He amended that to seek an order that he has sole parental responsibility for the children along with other orders. It was in the following terms –
     1. That the Applicant Father have sole parental responsibility for decisions regarding major long-term issues about the care, welfare and development of [X] born […] 2013, [Y], born […] 2015 and [Z] born […] 2017 (“the Children”).
     2. That the children shall live with the Father.
     3. That the children’s time with the Mother be suspended for a period of three (3) months following the making of these Orders and during that period, the children spend no time with the Mother.”
     4. During the period of time referred to in Order 3 herein, the mother is restrained and injunctions are hereby granted restraining her from:

4.1 Entering upon or coming within 50 metres of the children’s day care or school, or allowing anyone else to do so;

4.2 Entering upon or coming within 50 metres of the father’s residence or allowing anyone else to do so; and

4.3 Communicating with the children save and except with the father’s prior written consent.

5. The mother shall attend upon a psychologist for the purposes of personal therapy with the cost of such appointments to be paid solely by the mother and with the therapy to continue for such period as recommended by the treating psychologist.
6. Following the conclusion of the Order 3, the children spend the following time with the Mother during the Gazetted NSW school term as follows:

6.1 For a period of 6 months following the expiration of Order 3, every second Saturday between the hours of 11:00am and 2:00pm as supervised by a professional supervision service, with such costs to be shared.

6.2 Following the conclusion of the Order 6.1, and for a further 4 months, every second Saturday from between the hours of 10:00am to 2:00pm.

6.3 Following the conclusion of the Order 6.2, every second Saturday to Sunday from between the hours of 10:00am to 6:00pm.

7. That a further 4 months from the commencement of 6.3, the children spend time with the Mother for one half of all gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.

7.1 For the purpose of these orders, each ‘school holiday period’ commences at 9am on the first Saturday after the conclusion of the school term and ends at 7:30pm on the Sunday prior to the commencement of the new school term.

8. That in all even numbered years, and only from the conclusion of order 6.2:

8.1 The children shall spend time with the Father from 12 noon Christmas Eve until 12 noon Christmas Day; and

8.2 The children shall spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day.

9. That in all odd numbered years and only from the conclusion of order 6.2:

9.1 The children shall spend time with the Father from 12 noon Christmas Day until 12 noon Boxing Day;

9.2 The children shall spend time with the Mother from 12 noon Christmas Eve until 12 noon Christmas Day; and

9.3 Any provision for time under these orders that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

10. That each party is hereby authorised to obtain from the child’s school or day care all school reports, letters, school photographs, school counsellor’s notes, notices, memos, school newsletters, invitations and any other information in relation to the children.
11. That upon the expiration of Order 3, the parties shall both be entitled to attend all events involving the children, including:

11.1 Sporting fixtures;

11.2 Extra-curricular activities that allow for parental attendance; and

11.3 School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

12. That whilst the children are living with or spending time with each parent, that parent shall:

12.1 Notify the other parent via text message and/or telephone call as soon as practicable should any of the children suffer a medical emergency, injury or illness requiring medical attention whilst in their care, and notify the other parent of the name and address of the health care professional or service that provides treatment of the children;

12.2 Advise the other parent of any appointments for the purpose of each parent attending;

12.3 Consult with the children’s treating health care professional or service;

12.4 Advise the other parent of any medication or medical procedures that have been prescribed for the child; and

12.5 Keep the other parent informed of any other matter relevant to the children’s welfare.

13. That each parent shall be restrained from:

13.1 Denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with in the presence or hearing of the children, and shall be restrained from causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship within the presence or hearing of the children.

13.2 Exposing the children to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the children, either parent, any member of either parent’s household and/or any person with whom either parent may maintain a genuine domestic relationship with;

13.3 Discussing these current proceedings in the presence or hearing of the children or permitting any third party to do so; and

13.4 Making critical or derogatory remarks in relation to the other parent or referring in any way to the current proceedings on social media.

14. That for the purposes of communicating information between the parties, the parties shall:

14.1 Communicate by telephone about medical emergencies and matters of an equally urgent nature; and otherwise;

14.2 Communicate by text message and not though the children about day-to-day matters concerning the children only, including arrangements for each party to spend time with the children.

15. That the parties shall advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses or residential address within twenty-four (24) hours of such change occurring and any change to their residential address no later than forty-eight (48) hours prior to such change occurring.
16. That neither party relocate ether children’s permanent residence outside of the metropolitan Sydney without the other parties’ prior consent.
17. The Father shall be authorised to do all acts and things and sign all documents necessary to apply for and maintain an Australian Passport for the children in the absence of consent from the Mother or otherwise.
18. For the purpose of Order 17 herein, the children are permitted to travel internationally as provided by Section 11(1)(b)(ii) of the Australian Passport Act 2005 (Cth) with the Father and for this purpose, the Father is permitted to apply for Australian Passports for the children under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth).
19. The Mother is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to their Order by placing the name of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watch List until each child attains the age of 18 or subject to further Order of the Court.

The mother’s proposals

134. The mother’s proposal was bewildering linear – sole parental responsibility for the children in her favour, the children live with the mother and they spend no time with the father.

The ICL’s proposals

135. By the end of the trial, counsel for the ICL formulated the precise orders the ICL sought. While unsatisfactory in the sense that the ICL’s position was not fully and openly declared at the commencement of the trial, the ICL’s position in this case was understandable by reason of the facts that the father’s circumstances in relation to the sexual abuse allegation were unexplored at the commencement of the trial. Immediately prior to final addresses, counsel for the ICL declared his position. It was in the following terms –
     1. That all previous parenting orders in respect of the children [X] born […] 2013, [Y] born […] 2015 and [Z] born […] 2017 (hereinafter collectively known as “the children”) shall be and are hereby discharged.

Parental responsibility

2. That [Ms Pasztor] (“the Mother”) have sole parental responsibility of the children in relation to decisions concerning the long term care, welfare and development of the children. Provide that for the purposes of exercising of such parental responsibility the mother shall:

2.1 notify the Father [Mr Pasztor] (“the Father”) of any proposed decision relating to the long-term care and welfare of each of the children, including but not limited to

2.1.1 proposed decisions about which school each of the children shall attend; and

2.1.2 proposed decisions about elective surgery, treatment of ongoing health conditions, appointment of treaters or frequency of therapies, orthodontic treatment and other long term medical issues affecting each of the children;

2.2 ensure that such notification is given to the Father in writing and not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;

2.3 reasonably consider any views expressed by the Father in respect of such proposed decisions; and

2.4 communicate to the Father in writing her decision in the exercise of parental responsibility within 48 hours of having made any such decision.

Live with

3. That the children live with the Mother.

Spend time with

4. That the children spend time with the Father as follows:

4.1 During school terms, for the first weekend of each month from after school or 3pm Friday until before school or 9am Monday.

4.2 Commencing in term 3 2024, for one half of the terms 1, 2 and 3 school holiday period being the first half in even numbered years commencing after school or 3pm on the last day of the children’s attendance of the school term until 5pm on the mid-point and the second half in odd numbered years from 5pm on the mid-point until before school or 9am on the first day of the children’s attendance of the school term.

4.3 During the term 4 school holiday period as follows:

4.3.1 In 2024 as follows:

(a) From after school or 3pm on 20 December 2024 until 12 noon Christmas Day.(b) From 5pm 1 January 2025 until 5pm 8 January 2025.

(c) From 5pm 15 January 2025 until 5pm 22 January 2025.

4.3.2 In 2025, and each year thereafter ending in odd numbered years from after school or 3pm on the last day of the children’s attendance of the school term until 5pm 7 January and the second half in 2026 and each year thereafter in even numbered years from 5pm 7 January until before school or 9am at the commencement of the new school term.

4.4 Such further and other times as agreed by the Mother and Father in writing.

School holiday Definition

5. For the purpose of these orders School Holidays shall be defined as the periods of times and date published by the NSW Department of Education and shall for the purpose of calculating any school holiday period:

5.1 The holidays shall be taken to commence on the afternoon of the last day of school term day in NSW PROVIDED that if the children have different school terms the school term shall be the last day of school for the last child;

5.2 The holidays shall be taken to conclude on first day of school the following term PROVIDED that if the children have different school terms the school term shall be the first day of school for the first child; and,

5.3 Pupil free days at the commencement or conclusion of the holidays shall NOT be included as part of the holidays.

6. That the Father’s time with the children during school terms pursuant to Order 4.61 shall recommence as follows:

6.1 If the Father had the care of the children in the last week of school holidays, in the second week of school term; or

6.2 If the Father did not have the care of the children in the last week of school holiday, in the first week of school term.

Changeovers

7. For the purposes of facilitating changeover unless otherwise agreed in writing between the Father and the Mother,

7.1 if changeover in Orders coincides with the commencement or conclusion of schools, changeover shall occur at the children’s school(s),

7.2 otherwise changeover is to occur at the McDonalds at [Suburb B] for the purposes of such changeover, each of the parents shall ensure that they speak respectfully and courteously to the other parents.

Special Days

8. That each of the parents shall spend special occasion time with the children as follows:

24-26 December

8.1 That notwithstanding any other Order, in 2025 and each odd ending year thereafter, the children spend time with the Father from 2.00pm on 24 December to 2.00pm on 25 December.

8.2 That notwithstanding any other Order in 2025 and each odd ending year thereafter, the children spend time with the Mother from 2.00pm on 25 December to 2.00pm on 26 December.

8.3 That notwithstanding any other Order in 2026 and each even ending year thereafter, the children spend time with the Mother from 2.00pm on 24 December to 2.00pm on 25 December.

8.4 That notwithstanding any other Order, in 2026 and each even ending year thereafter, the children spend time with the father from 2.00pm on 25 December to 2.00pm on 26 December.

Communication

9. That the Mother and the Father:

9.1 Shall forthwith advise each other of their email address and a telephone contact number, and thereafter shall advise the other of any change to such details prior such change including the details of the new email address and/or telephone contact number;

9.2 For the purposes of communicating other than in the event of an emergency, the Mother and the Father shall communicate via the AppClose application and for this purpose:

9.2.1 each of the Mother and Father must Download AppClose; and

9.2.2 the Father shall be responsible for the payment of the subscription.

9.3 For the purposes of communicating in relation to any of the children in the event of an emergency, the parents shall use text message or telephone.

10. That each of the children are at liberty to contact either parent when in the care of the other and that each parent shall do all acts and things to facilitate that child’s request to contact the other parent.
11. That each parent shall be at liberty to contact each of the children on days of special significance including but not limited to birthdays, Christmas, Easter, Mother’s Day and Father’s Day and that the parent with care of the children shall facilitate the call.

Provision of Information

12. That the parents shall communicate in relation to matters pertaining to the children’s parenting arrangements and the children’s care, welfare and development:

12.1 For all non-urgent matters, being those that do not require a response within 48 hours, by “AppClose” application;

12.2 For all urgent matter, being those that require a response within 48 hours, in the first instance by text message; and

12.3 All communication between the parents shall be respectful and courteous and limited to matters relating to the children.

Medical Information

13. That the Father shall be at liberty to communicate with each of the children’s medical providers in relation to the child’s health and wellbeing, and to facilitate such communication occurring, the Mother shall ensure that the Father is provided with details of each the children’s current treating General Practitioner and Paediatrician and shall notify the Father within 48 hours of a consultation between the child and the General Practitioner taking place, and shall advise the Father no less than fourteen days prior to scheduling any non‑urgent medical appointment in relation to the child, and shall provide the Father with details of such medical practitioner and shall provide the father with a copy of any report generated as a result of such appointment within seven days of receiving same.

14. That the Mother shall keep the Father informed of the following:

14.1 Any medical appointments or hospitalisation of the child or children and the contact details of that practice, doctor, specialist or hospital;

14.2 Any medication prescribed for the child or either of them and the administration of it; and

14.3 The name and address of any school, training and other education facility attended by the child or either of them and any change to those details.

15. The Father shall not attend any appointment referred to above in orders 14 and 15 without the prior written consent of the Mother.

Extra-curricular Activities

16. The Mother shall notify the Father of each of the children’s enrolment in any extra-curricular activities and each parent shall ensure the children’s attendance at such extra-curricular activities.
17. Each parent is restrained from attending any extra-curricular activity for the children while the children are in the care of the other parent unless there is a written consent of the other parent provided prior to attending any such event on any such occasion.

Non-Denigration

18. That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of any of the children.

Notification of medical emergency

19. That in the event of any child suffering a medical emergency requiring medical attention while living with either parent:

19.1 The other parent is to be notified as soon as practicable, and within an hour of the medical emergency occurring.

19.2 The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable.

19.3 The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information relating to any child is to be shared with the other parent upon request.

School – Provision of Information

20. That the Mother shall give all consents, sign all documents and do all things necessary to ensure that the Father can obtain the following from each of the children’s school(s)/ after school care(s) at his own cost:

20.1 copy of all school reports, progress reports and photo order forms.

20.2 In the event of any of the children being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.

Restraints

21. That each parent be and hereby is restrained from:

21.1 Discussing these proceedings with any child or in their presence or hearing;

21.2 Showing any child any documents relating to these proceedings;

21.3 Questioning any child in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent;

21.4 Encouraging any child to express particular views or preferences in relation to their living arrangements or the time they spend with the other parent.

21.5 Physically disciplining the children and shall do all acts and things to ensure no third person does so.

22. The mother shall be restrained from relocating the children’s residence from outside the greater Sydney Metropolitan Area unless otherwise agreed between the parents in writing.

Release of Report of [Ms C]

23. That the Mother and Father be granted leave to provide to the children’s treating medical consultants a copy of these Orders together with the report of [Ms C].

Counselling for the mother

24. The mother shall engage in counselling with a consultant/counsellor/therapist experienced in family conflict allegations when not substantiated for not less than six (6) months and shall within 7 days do all acts and things to make the first available appointment with such consultant/counsellor/therapist.
25. The mother shall follow all reasonable requests, referral and recommendations of the consultant/counsellor/therapist.
26. The mother shall be permitted to provide to the consultant/counsellor/therapist a copy of these orders, the report prepared by Single Expert [Ms D] dated 3 August 2023, a copy of these orders and any reasons for judgement.
27. The mother shall provide a letter of attendance to the ICL and father upon completion of the therapy/counselling.
28. The mother shall provide an authority to permit the ICL to speak with the consultant/counsellor/therapist.

Independent Children’s Lawyer

29. The appointment of the Independent Children’s Lawyer shall be extended for a period of 12 months following the date of the final orders and shall thereafter be discharged.

SOLE PARENTAL RESPONSBILITY

136. No party suggested at trial that equal shared responsibility for the children was an order appropriately made. Each parent sought an order for sole parental responsibility – the ICL and the mother in favour of the mother and the father for an order in his own favour.
137. Being a “parenting order” as defined in s 64B(2)(c) of the Family Law Act by force of s 65AA an order for the allocation of parental responsibility for a child may only be made upon the court (me in this case) considering the best interests of the child as the paramount consideration.
138. Section 60CA provides that in deciding whether to make a particular parenting order a court must (this is mandatory) regard the best interests of the child as the paramount consideration. In order to ascertain what is in the child’s best interests, the matters in s 60CC(2) and in s 60CC(3) must be considered. The considerations in s 60CC(2) are described as “primary considerations” and they are in two parts. The considerations in s 60CC(3) are described as “additional considerations” represented by 14 subsections of s 60CC(3).
139. Taking first the primary considerations of s 60CC(2)(a), that subsection provides that in any application for a parenting order the court must consider the benefit to the child of having a meaningful relationship with both parents. Section 60CC(2)(b) provides that in any application for a parenting order the court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2A) provides that in any consideration of the imperatives in s 60CC(2)(a) or (b), the court must accord greater weight to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In this case family violence is relevant. The term “family violence” is defined in broad and enabling terms reflective of a deliberate legislative intendment to render the definition applicable to a very wide range of conduct. Relevantly here, s 4AB(2)(d) of the Family Law Act provides that repeated derogatory taunts is an illustration of family violence. The transcript of the exchange between the parents at the train station reveals the venom and hostility in the parental interaction between the two parents in the presence of the children.
140. Ms D was candid and open in her evidence in answers to questions put by me that the parents’ aggressions towards one another is discernible by the children and that it represents psychological harm. She was asked in unambiguous terms about how that behaviour by the parents with its consequential deleterious impact upon the children could be reduced if not eliminated. She said the psychological harm to the children could be reduced significantly by the reduction in parental interaction. Yet she also agreed that damaging influences are likely to be inflicted on the children when the children are in the care of one parent or another.^[23] In other words, Ms D seemed to recognise the reality that even unconsciously, when the children are in the care of one parent, that parent is likely to adversely influence the children about the other parent.
141. Whether either parent possesses the capacity to resist engaging in such behaviour remains to be seen.
142. Historically, the evidence revealed that the mother has been unrestrained in her vitriol towards the father. Ms D picked up on that when giving her evidence. That said, the father has behaved in a provocative manner towards the mother causing the mother to react adversely. The mother gave evidence in answer to a line of questions in cross-examination to the effect that she no longer feels hostility towards the father and his new partner. I doubt the sincerity or truthfulness of that answer. In days gone by the mother has blamed the father for her loss of marriage and financial support. Precisely how far that sense has abated is difficult to say. It seems to me to be unlikely that the mother is as presently unaffected by hostility towards the father as she asserted under cross-examination. It is almost impossible, therefore, to proceed on the premise that when the children are in the mother’s care hereafter they will not be adversely influenced by the mothers hostile views towards the father. To my way of thinking, that has the ongoing risk of psychological damage to the children of which Ms D gave evidence.
143. Ms D’s solution, unsatisfactory as it was, involved both parents having as little interaction as possible with one another. That may work up to a point. However, the two younger children are too young to be left on their own so even changeovers will involve a degree of interaction and any such interaction carries with it a risk of vocalised hostilities as between the parents.
144. The mother’s solution is for the father to have no time with the children. How she was able to support such a claim in view of my findings of there being no evidence of the father’s sexual assault upon the youngest daughter went unsaid. I did not find the mother’s position on point meritorious. There was no legal or factual foundation for the contentions that the father should have no time with the children having regard to my rejection of the assertion that he sexually assaulted the youngest child.
145. It must not be overlooked that the mother has refused the father to have time with the children for a significant period of time, her refusal being premised on an incident I have found was not proved against him.
146. It is of the utmost importance in this case to make orders that protect the children from physical and psychological harm. Ms D suggested a means that counsel for the ICL has embedded in orders for time between the children and the father as well as orders for changeovers.
147. Of course, a consideration only on s 60CC(2) factors is not the end of the considerations that need to be addressed in undertaking a consideration of the child’s best interests because s 60CC(3) considerations also need to be separately addressed. That is discussed below.

SOLE PARENTAL RESPONSBILITY

148. For two years or thereabout the children have lived with the mother and she has made all major decisions short and long term for the children. For the most part she has behaved in a protective, loving and caring way towards the upbringing of the children. The ICL urged me to make orders that ensure the mother’s sole parental responsibility for the children continues.
149. Equal shared parental responsibility was once sought by the father but later abandoned in favour of his application for an order for sole parental responsibility in his favour. No one suggested that equal shared parental responsibility could work.
150. To the father’s application for an order for sole parental responsibility I now turn.
151. The father has not been involved in decision making in relation to the children for some considerable time.
152. The family consultant did not make any recommendation about parental responsibility.
153. The father’s time with the children has been limited to time at a contact centre.
154. No counsel addressed me on any aspect of s 60CC(3) in the context of the father’s application for an order for sole parental responsibility for the children in his favour.
155. I entertain misgivings about the father’s parental insight. The episode at the Suburb G train station indicated to me that the father does not possess the requisite focus on his children to be solely responsible for major long-term decisions about them. I accept that the train station incident was over two years ago. Nevertheless it revealed an aspect of the father’s insight into parental responsibility. He chose to gather evidence on film in priority to assisting his distressed children. Rather than ceasing his activities in filming the imbroglio that was developing (largely through his filming of it and provoking the mother) he kept going, taunting the mother and actively following her to various parts of the car park. That demonstrated to me that he was unable to separate the promotion of the best interests of the children from the advancement of his relentless pugilism against the mother. Whether he was gathering evidence by filming the train station interaction or whether he was seeking to achieve some other end by filming the scene was none too clear. Irrespective of his purpose, he chose to continue his activities of filming thereby continuing to upset the children. I am not at all confident that he possesses the necessary awareness to assume the burdensome obligations associated with an order in his favour for sole parental responsibility.
156. It is open to view the outcome of the sole parental responsibility application through the prism that the mother manufactured allegations of child abuse by the father, the father has been left with supervised time with the children but that he has been ostensibly removed from their lives for such a period that he knows very little of their day to-day lives with the consequence that he is ill-equipped to assume the role of sole parental responsibility. Such a perspective would be unduly simplistic. In my view the father behaved in a manner that was not child focused and he did so some time ago. An order for sole parental responsibility required the adoption of a highly child focused approach, which the father did not exhibit.
157. Having found that an order allocating sole parental responsibility in favour of the father is not in the children’s best interests and that no party sought an order for equal shared parental responsibility, that would suggest that logically, an order allocating sole parental responsibility in favour of the mother axiomatically followed. Any order in the nature of a “parenting order” as defined, can only be validly made if the court making the order is persuaded that such an order is in the best interests of the child. Accordingly, it became necessary to examine the mother’s application allocating parental responsibility in her favour against the statutory framework of ss 60CC(1),(2) and (3).
158. The evidence revealed that the mother enjoys a positive relationship with all three children. She has behaved extremely protectively towards them.
159. So far as s 60CC(3)(a) was concerned, the two younger children have not expressed any wish, whether as to the parent with whom each wishes to live or as to which parent each wishes to exercise parental responsibility. However, the eldest child has voiced her wish to live with the mother. In view of that child’s age and maturity, it seems to me that the expressed wish of the eldest child should be accorded considerable weight as s 60CC(3)(a) invites the court to do. In view of that wish articulated by the eldest daughter it would be most unwise of me to make orders that had the effect of causing one child to live with one parent and, hypothetically the other two to live with the other parent. Equally, a peculiar result would follow if I were to allocate parental responsibility in favour of one parent yet one or more of the children lived with the other parent. That said, ascertaining the best interests of the child by application of s 60CC of the Family Law Act is by no means formulaic and no single subsection of s 60CC(3) is determinative. Each subsection separately informs the eventual conclusion about what is in the best interests of the child.
160. Section 60CC(3)(b) invited a consideration of the nature of the relationship of each child with each parent and other persons. Here, each child enjoys a very strong bond with the mother. Each child enjoys a positive relationship with the father. Various assertions hinted at the father’s partner hitting the youngest two children yet those assertions were not proved. The father’s partner does not enjoy a particularly favourable bond with the children. In her written case outline sealed 1 May 2024, the mother’s legal representatives wrote that the mother does not dispute that the father loves the children. That concession corresponded with the evidence.
161. Section 60CC(3)(c) invited examination of the extent to which each parent had taken or failed to take the opportunity to participate in decision making on major long-term issues, to spend time with the children and to communicate with the children. In this case, since October 2019 when the parents separated the father has not immersed himself in the daily lives of the children. The father submitted that the mother actively hindered him from so doing. The father has seen the children under supervision for a significant period of time. That constellation of factors revealed that the father has not been involved in making decisions about long-term issues for several years, he has spent time with the child under supervision yet he has maintained some semblance of contact and communication with them. It is unnecessary for me to express a view about whether the mother pressed her assertions of sexual interference by the father after a point in time when no child protection body was interested in pursuing the matter.
162. Maintenance of the children, as canvassed in s 60CC(3)(ca), was not put in issue by any party.
163. Section 60CC(3)(d) inquired into the likely effect of any changes in the child’s circumstances including the likely effect of any separation from either parent or any other child. All three children currently live with the mother. If the orders are made in accordance with the father’s proposal, the children will live with him. Yet he has provided no information to explain how he can accommodate three more persons in his existing living arrangements. Further, if the children were to live with the father, the children will come into daily contact with the father’s partner. Hostility between the children and the father’s partner already exists. Further, the evidence reveals that the father has historically spent very long hours at his business and if the children were to live with him, his partner would most likely become the supervising adult in the house, an arrangement diametrically opposite to the children’s existing arrangements while living with the mother. Further, no evidence exists about the likely reaction from the father partner’s ex-husband to an arrangement that the children live with the father and his partner.
164. No party relied on issues raised by s 60CC(3)(e).
165. Section 60CC(3)(f) invited a consideration into the capacity of each parent to provide for the emotional needs of the child including the child’s emotional and intellectual needs. In her written outline of case, the mother submitted that she had been meeting the needs of the children since the parties’ separation in October 2019, over four and a half years ago. The mother pointed out that no evidence emerged about any psychological issues adversely affecting her.
166. Section 60CC(3)(g) invited a consideration of the maturity, sex, lifestyle and background of the child and of the child’s parents. The mother’s cultural heritage is from Country E. The father’s background is not from Country E. The mother’s proficiency in the English language is marginal. Historically, the father has belittled the mother for that. The mother is keen to ensure the children maintain their link with their cultural ethnicity.
167. Section 60CC(3)(h) was non relevant.
168. Section 60CC(3)(i) invited consideration of the parents’ attitudes to the responsibility of parenthood. The mother is loving, caring and devoted to her children. The father is loving towards his children. He has been out of the children’s lives for several years, aside for supervised contact time. As has already been narrated the episode at the Suburb G train station revealed a want of child-focused insight by the father. Further, the father has spent a large portion of his time, even when the parties’ marriage was intact, at his business or playing computer-based games rather than being with the children.
169. Section 60CC(3)(j) and (k) enquired into family violence. Details of the sexual interference allegedly committed by the father upon his youngest child have been narrated at length above.
170. Section 60CC(3)(l) enquired into whether it would be preferable to make the order that would be least likely to lead to the institution of further litigation in relation to the child.
171. Here, the parties are at daggers drawn and one wonders whether and if so when the hostility and enmity will ever abate as between the parents. The orders proposed by the ICL have carefully dissected the recommendations by the family consultant, Ms D.

FINDINGS ON PARENTAL RESPONSIBILITY, LIVE-WITH ARRANGEMENTS AND TIME

172. In my view, I am persuaded that the best interests of the child are promoted by the mother having sole parental responsibility for the children. She has acted as the children’s primary carer since October 2019. In that role she has behaved protectively towards them, endeavouring to shield them from physical and emotional harm. When she learned that her husband had formed an intimate relationship with her former best friend, the mother become upset and the interactions between the children’s parents became volatile. The father provoked an adverse reaction from the mother during the interaction at the train station. In engaging in conduct that was so inflammatory towards the mother, I take the view that he was far from child-focused and that he was not equipped with the requisite insight to be allocated sole parental responsibility. Conversely, the mother has behaved at all times in a manner that is and has been child-focused. While true, the mother has used appalling language when speaking to the father and to that extent such language upsets the children, when the parents do not interact they do not cause upset to the children. A non-denigration order may go some small way to curbing any enthusiasm by either parent to infect and poison the children’s minds against the other parent.
173. In short, I do not favour an order allocating sole parental responsibility to the father because he is not sufficiently child-focused in a way that an order for sole parental responsibility requires.
174. An order allocating sole parental responsibility in favour of the mother maintains the status quo and it accords with the best interests of the children. I make an order in accordance with paragraph 2 of the ICL’s proposal.
175. In my view an order should be made for the children to live with the mother as they currently do. No details were offered by the father about how he was proposing to accommodate three extra persons at his residence. No details were offered about whether the father’s partner’s ex‑husband was likely to complain about the father’s children living with the child of the husband’s partner’s ex-husband. No details were offered about any need to find other accommodation, its proximity to the mother or to the children’s school. In short, the father’s proposal for the children to live with him was ill-conceived. I make an order in accordance with paragraph 3 of the ICL’s proposal. Such an order is in the children’s best interests.
176. The spend time arrangements recorded between paragraphs 4 to 9 inclusive of the ICL’s proposal seem to me to reflect not only the gravamen of Ms D’s recommendations but they accord with the promotion of the best interests of the children. The family consultant offered the view that the children will benefit from time with the father. I agree. The prohibition recommended in respect of the father’s time (if I had found him to have interfered with the child) has been countermanded by reason of my finding that the father did not interfere with the youngest child.
177. The time for the father recommended by the ICL promotes the imperative recorded in s 60CC(2)(a), namely, that the children should have a meaningful relationship with both parents. The time proposed by the ICL is initially staggered, which in my view is prudent having regard to the fact that for a long time the children’s time with the father has been supervised.
178. The proposals in paragraphs 10 – 30 are appropriate and seem to me to be in the best interests of the children.

AFTERWORD

179. This litigation has been on foot for a long time. The issues raised were complex. Addressing them in the detail required called for great care, skill and sensitivity. In this case I was treated to some very capable advocacy for which I record the court’s and my personal gratitude.

 

 

Associate:

 

Dated: 19 July 2024

^[1] Alstergen CJ, McClelland DCJ, Aldridge, Austin and Tree JJ

^[2] [2022] FedCFamC1A 97; (2022) 65 FamLR 288.

^[3] Despite asserting the frequency of the event the father provided no evidence of one or more dates on which the alleged event occurred or the circumstances of the alleged event.

^[4] Ibid.

^[5] Reference to “the children” seemed to have been a reference to one child only, namely the middle daughter. The father did not depose to the terms of the conversation he had with police. Instead he asserted that he took the view, after being contacted by police, that the incident described to him by police may have related to an allegation by the mother that the middle daughter had been struck by the father’s partner’s daughter rather than by the father’s partner.

^[6] [2023] FCA 381.

^[7] GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857.

^[8] (2011) 243 CLR 361.

^[9] This was highly equivocal and seemingly unresponsive to the question asked by the mother which enquired whether the child told the father to stop.

^[10] [2001] NSWCA 305.

^[11] [2011] CLR 588.

^[12] (2014) 253 CLR 122.

^[13] (2023) 95 ALJR 758.

^[14][2011] CLR 588.

^[15] (2014) 253 CLR 122.

^[16] (2023) 95 ALJR 758.

^[17] [2001] NSWCA 305.

^[18] [2024] FCA 369.

^[19] [2022] FedCFamC1A 97; (2022) 65 Fam LR 288.

^[20] T 606 L 25.

^[21] T 607 L 5.

^[22] T 607 L 40.