Golly & Wolberink (No 3) [2025] FedCFamC1F 561 | Case summary

Golly & Wolberink (No 3) [2025] FedCFamC1F 561 | Case summary | Zoe

[30]

From about September 2019, post-separation, the children began acting in an increasingly sexualised manner inconsistent with normal exploratory behaviour. The second major issue in the proceedings is what led to these behaviours, and as a subsidiary issue why the mother has been apparently unable to stop the children acting in these ways, including in public settings.
The mother raised the issue of possible sexual abuse of the children by the father. She questioned the children in a highly leading fashion and obtained disclosures that the father was sexually abusing them. The Department of Communities and Justice ("DCJ") also obtained one disclosure, but only through similar leading questions despite having warned the mother not to do this.
The father denies all such allegations. The father suggested the mother may have raised these issues as a further forensic tool to obtain the desired international relocation, although ultimately conceded that the children's behaviour was highly abnormal.
For reasons set out elsewhere I find the father was an unreliable witness willing to lie on oath to advance his case.
Complicating the matter the mother had a relationship with a Mr M between July 2019 and March 2020.[3] This was the same period during which the children commenced their sexualised behaviours.
The mother raised issues with her counsellor around Mr M and family violence. When the children were threatened by Mr M's former partner, who on the limited available evidence posed a credible threat of harm, the mother did not seek police assistance because she did not want an ADVO "whilst going through family Law".[4] In doing this I find the mother prioritised the third-party documentary evidence creation process over the children's physical safety.
The mother asked her counsellor to redact her counselling notes which had been subpoenaed. She did this to ensure information concerning Mr M adverse to her case did not come before the Court or to the attention of the other parties. The unredacted notes were ultimately obtained. The mother also persistently refused to provide information about Mr M to identify him sufficient to allow a request to police or DCJ for information to determine whether Mr M had any criminal or child protection history which might throw light on the possibility that he had sexually interfered with the children when he spent time with them. The mother's conduct in relation to Mr M in particular, together with other unsatisfactory evidence, causes me to also find her to be an unreliable witness willing to lie on oath to advance her case.

[31]

Neither parent is a witness of truth nor in any way child focussed. Both parents were more interested in winning the proceedings than in the well-being of the children. Their evidence was unreliable. This makes fact finding all but impossible despite having reviewed the transcript and the voluminous documentary evidence.
It is not possible to make any findings about family violence, although it is possible that each parent is telling the truth and the other was engaged in coercive and controlling family violence and also that neither parent was truthful, and it was all subsequent fabrication.
It is not possible to say why the children began, or have continued, behaving in a highly sexualised way. However, I am comfortably satisfied that the evidence does not establish that the father poses any unacceptable risk of harm to the children.
The Court Child Expert ('the expert') said that:[5]
1. ...In attempting to align the children with either parent, the parents are causing significant psychological harm to the children which will likely have lifetime implications on their mental health and interpersonal and relationship capacities.
It is clear, and I find, that both parents have engaged in a campaign to align the children with them and to turn the children against the other parent, and that as a consequence the children have suffered significant psychological harm and are at a grave risk of psychological harm in both households. It is likely that both parents conduct contributed to the other anti-social behaviours of the children.
Due to the dishonesty of both parents, and despite reviewing all the evidence and the transcript more than once, I cannot make a finding as to which household poses the greater risk of psychological harm.
In these circumstances I have concluded that the least worst option is that which was broadly outlined in the Independent Children's Lawyer's ("ICL") closing proposed Minute of Order,[6] which requires the children to continue spending time with both parents.
I have formed this view having carefully considered the expert's opinion that the court should select one parent for the children to live with and that the children should only have recognition time with the other parent six times per year to remove them from the significant psychological trauma associated with living in the middle of the parent's ongoing conflict. While I give significant weight to the expert's opinion, and accept many aspects of it, it is ultimately one piece of evidence amongst many, and my obligation is to exercise my own judgment in determining parenting orders in the children's best interests.[7]
As between the households the mother's general parenting capacity, and attunement with the children, is better than the father's. There is no benefit to the children in moving their primary residence and I accept the expert's opinion that it would be traumatic for them. On that basis the children will live primarily with the mother.
The evidence establishes the parties cannot co-parent and I accept the expert's opinion that requiring co-parenting will merely add to the ongoing conflict and will not be in the children's best interests. The mother will have sole parental responsibility, subject to notification obligations.
The children will live with the mother and during school terms spend time with the father each alternate weekend from the conclusion of school, or 3.00 pm, Friday until before school, or 9.00 am, Monday, and for half school holidays. There will be provision for special occasion times and for the children to have electronic communication twice per week with the parent who they are not with during the week.
The mother's international application to relocate the children is refused. I find that the children's best interests are served by remaining in Australia. If the mother intended to relocate to Country J in any event I would have ordered the children to live primarily with the father. The mother said that in those circumstances she would not relocate. There will be ancillary orders broadly in line with the ICL's proposal.
The ICL sought a costs order against each parent equally in the sum of $17,975.15 , noting that each parties share was $19,625.15 but that the parties had already paid $1,650.00.[8] The conduct of each party certainly appears to justify such a cost orders, however, the parties will be given an opportunity to be heard on this issue for a full determination pursuant to the relevant provisions of the Act if they do not agree to pay these sums.
While there was an element of aspiration in the ICL's closing oral submissions, to the effect that with closure of these proceedings the parents might change, I make these orders assuming neither parent will change. Unfortunately, the likelihood is that the children will continue to suffer. Alas, there is no other alternative available.
I apologise for the delay in delivering this judgement.

[43]

The father's evidence was that the relationship dynamic was one in which the mother exercised coercive control over him with which he complied.
He said that when the mother "becomes angry, she starts raising her voice. Then if she is not getting what she wants, she starts yelling. Then she starts accusing me of things and belittling me and putting me down." Consequently he "would generally just give her whatever she wanted" and "used to do what [the mother] wanted to avoid her becoming angry". The father said the mother "would tell me what to do, and I would do it". He said he "avoided arguments with [the mother] because she would escalate very quickly."[9]
For example, even when he was very sick with an illness, and so did not want to drive her to the shops, she "became angry and yelled" at him. She was "red in the face and looked and sounded very angry", so he drove her "despite feeling terrible." He said that from some time in 2015 the mother required him to sleep on the lounge as she did not like sharing a bed. He said he did as requested "to keep the peace." He only got to sleep in a real bed again when the mother purchased one for her parents visit. He said this controlling attitude extended to the children, for example when X was offered a chance to name his soon to be little brother he chose the name ... over Y but "[the mother] became angry and refused to call him [...]."[10]
The father said the mother "used to accuse me regularly of things that were not true", was "quite suspicious" and jealous, becoming angry when, for example, he spoke to a checkout lady at a supermarket, asking him why he was flirting. She often asked if he was cheating on her, had access to his phone and told him she checked his text messages. She controlled his access to friends on several occasions telling him he could not go fishing with them. He said he complied as he "didn't want her to become angry and start yelling at [him] as she had done on several occasions before." She would say he could workout then terminate his exercise time after five minutes.[11]
He said the mother was not afraid of him, and would yell at him in front of the children, who would sometimes become distressed, and that they "always ... tip-toe[d] around [the mother] for fear she would just explode in anger", which she did from time to time, and that she "seemed to have little empathy about how [the children and father] felt around her."[12]
The father implied in his affidavit, while not directly saying, that the mother was neglectful, lazy and selfish, as well as being aggressive and controlling. He said he did the majority of the household chores while the mother "sat on the couch." He would get up at 5.30 am to 6.00 am and would tend to the children while the mother slept till 9.00 am, that she was "generally quite grumpy in the morning", and that if he or the children were too loud the mother would come out and be very angry and yell at them, so he tried to keep the children quiet. The father said the mother would leave three to four soiled nappies on the floor which he had to pick up and put in the bin. He also got up at night and tended to X and Y for everything except feeding.[13] In cross-examination he agreed that he thought of the mother as lazy at times.[14]
He gave "typical" examples of their interactions, including a time the mother placed a pot of boiling water at the front element of the stove. When he suggested she should put in at the back as it was "a bit dangerous to the children" she "exploded in rage", so he never asked her to do this again, but then said "whenever I was there, I kept a close eye on the children near the stove." Similarly, when the mother left a tub of water in the backyard, and he raised a concern about a drowning risk, the mother "blew up at [him]", becoming instantly angry and started yelling at the father words to the effect of "'I am not trying to harm the kids.'" He told her that was not what he was saying, and let the issue go. She was angry for another hour or so.[15] Further, he said the mother kept expensive Country J food in the fridge that only she was allowed to eat.[16]
In this context he said the mother's allegations that he was the parent who was controlling and made derogatory comments were false, and that the only time he made a derogatory comment was when he told her that she was lazy but that this "was after [the mother] had been giving [the father] a hard time, and [the mother] had been sitting on the lounge all day playing on her mobile phone and not doing anything to help [the father]."[17] He denied he called her crazy and said that the most he had said was "you are exaggerating things" and "can you pleases stop nagging me."[18]
The father said the mother would wear plastic bags over her hands during pregnancy, scrub her hands till they were bleeding, and said she needed to see someone for help, suggesting a form of obsessive-compulsive disorder ("OCD"). When the council sprayed the street for weeds, he says the mother said she felt unsafe and booked a hotel for the night and then stayed with his parents.[19]
The mother denied all of the father's allegations.

[44]

The mother says that the father engaged in coercive control and was verbally and emotionally abusive towards her and the children throughout the relationship. She also says the father was physically abusive to X.[20]
The mother's evidence is that the father insulted and yelled at her, including in front of the children, on an almost daily basis and said things such as "[y]ou are filthy and evil" and "[y]ou make my life hell" and the frequency and intensity of the verbal abuse increased in the period prior to separation.[21] If she asked a question he did not want to answer she said he would criticise her ability to speak English. She says the verbal abuse caused her considerable distress and apprehension and affected her self-esteem and confidence.[22] He was also highly critical of her cooking and had specific meal requests.[23]
She said the father would regularly lose his temper and become physically aggressive. She says that from 2014 onwards the father would kick the furniture and walls repeatedly approximately three times a week and that in 2017 the father screamed at her whilst driving and then kneed the dashboard causing it to break. The mother also gave evidence that in 2016 she witnessed the father punch his laptop screen, and at the Suburb S property, she observed him to kick furniture, walls and baby gates.[24]
The father denied that he was always screaming at the mother, that he would get angry easily or that he would throw things in the home, hit the wall, or kick and smash things during times when he was emotionally heightened. He said the house at Suburb S was Besser block and concrete, which it would not make sense to kick, and the house in Region T was gyprock, and there was no damage to the walls. He also denied having had a gun.[25]
In cross-examination on the Family Report, which records the history of the maternal grandmother that Y had allegedly informed her that "he had seen that the father had a gun in the home under the carpet in a box" and that Z had told her the father had "punched him twice in the head, and hit him on the arm during the last visit",[26] the father stated that he did not own any guns and that he had not punched Z in the head.[27] There is no other evidence the father owns a weapon and no other evidence the father punched Z in the head.
The mother says that she was worried about the way the father treated the children. She said that on one occasion the father became frustrated whilst changing Y's nappy and that he put a soiled baby wipe on X's face.[28]
In April 2018 she says that X tried to get the father's attention whilst he was watching a game of rugby. She says that the father grabbed X by the ankles causing him to scream and leaving red marks on his ankles.[29]
The mother says that when X was approximately three years old the father yelled at him and pulled on both of his arms dislocating his elbow. The father says this was an accident.
The mother says the father was financially controlling and that for the first three years of the relationship she was not provided with access or information to accounts which held savings.[30]
The mother says that shortly after the parties commenced living together the father gave her access to a joint account to be utilised for everyday expenses. She says in September 2017 the father changed the bank accounts from Commonwealth Bank to PP Bank. She says following this she accessed the statements and noticed that significant funds were being transferred to an account that she did not have access to, with the reference '...'. She says when she questioned the father on this, he told her that it was his money, and that he would have his savings account returned to a balance of $10,000.00 to recover the cost of the move to Town G.[31]
She says that despite her doing most of the grocery shopping the father would dictate what she could and could not buy.[32] She further states that the father told her that she "shouldn't be spending so much money on the kids", and that as a result she would ask him before purchasing items such as new clothing. She said if she did purchase things for the children without speaking first to the father he would ask "[w]hy are you spending money?" and that she was required to explain where the money had been spent.[33]
For example, in 2018 the mother says she purchased approximately $120 worth of items for X's birthday party. Whilst out shopping she says the father called her and said "I know what you are doing. You are spending too much money and need to come home now".[34]
In relation to the claim of financial control, the father said that he was the only one in paid employment, but the parties had four joint PP Bank accounts to which the mother had full access. The mother returned to Country J to see her family four times during the relationship paid for from their joint accounts. This included during 2013, in early 2015, with X and Y in early 2017, and with all the children in late 2018 just prior to separation where they stayed over Christmas despite the father's request that she and the children return home to spend Christmas with him. He said she used her access to the joint accounts in moving when the parties separated.[35]
The father denied in cross-examination that he regularly reviewed the mother expenditures and said the mother's evidence in this regard was all made up.[36] The father accepted he transferred monies to an account in his sole name, but said it was not to stop the mother having access but rather was just the way the accounts were set up, and that he had explained this to the mother.[37] He accepted that the mother did not have access to various accounts but denied that she was unaware of the existence of them.
The mother says that she was the primary carer of the children and attended to the overwhelming majority of tasks required to care for them, including preparing meals, cleaning and getting the children ready for bed.[38]
She said the father provided little help in caring for the children, and she was worried about the way he treated the children.[39]
The mother says that for the first three weeks after X was born the father assisted with his care, but that from three weeks onwards he provided minimal assistance.[40]
Again, with Y the mother says that the father helped for the first few nights after he was born but that after that time his assistance ceased.[41]
When Z was born she says the father provided minimal assistance and that on his days off from work he would lay on the lounge and watch television and play on his phone. She said the father refused her requests to bathe the children or look after them whilst she cooked dinner.[42] In cross-examination the father accepted that the mother was doing "most of the work" with Z and that the mother's parents provided great assistance with the children's care when present.[43]
The mother said the father occasionally assisted with getting Y and X ready for school after Z was born.[44]

[87]

The father's evidence was that he was not aware of the mother's disclosures or complaints to various bodies prior to separation. While the mother relies on these as contemporaneous evidence of complaints to rebut an allegation of subsequent fabrication, the father says the mother was acting in a calculated manner to lay the groundwork to justify relocating with the children to Country J after separation, pointing to her decision to obtain Country J Citizenship for the children in 2018,[82] and the earlier references to her desire to relocate to Country J.[83]
The father says that from about 21 January 2019 the mother largely ceased communicating with him about the children,[84] commenced her planned campaign to alienate the children from him,[85] exercised complete control of everything to do with the children,[86] and shut him out of the children's lives.[87] He says she also commenced intentionally creating conflict as part of her campaign to generate evidence justifying her eventual relocation application. He said he believed, in hindsight, that the mother maintained Country J bank accounts, of which he was not aware, as she had always maintained an exit strategy.[88]
Post-separation the children lived with the mother and spent time with the father. The father says the mother started to shut him out of the children's lives from the time of separation, refusing to allow any time with Z for the first five weeks, and generally was controlling of the children's time with him, deciding when and where he could see the children, limiting his contact with them, refusing to support and promote their relationship with him, and making false accusations to terminate the relationship so she could leave the country.[89] That was consistent with the father's description of the mother's controlling behaviour during the relationship and a plan to terminate his relationship with the children.
The father's evidence was that the mother had little regard for the benefit to the children of a relationship with him, that she did not promote the relationship and had been actively undermining the children's relationship with him.[90]
The father's time with the children in the early period was relatively limited, however, on the mother's evidence the circumstances around the father's time with the children post separation were determined by his availability as dictated by his employment and Z's age.

[89]

The parties exchanged text messages in relation to the children.[91] The text messages indicated high conflict but were not outside the commonly seen range of poor communication. The mother's evidence was that the father's text messages from 18-21 January 2019 were an example of communication warranting an AVO.[92]
In early 2019 the mother filed an AVO application, on one view as foreshadowed in her conference in November 2018 set out elsewhere.
The father said that the ADVO proceedings cost him money, he was feeling financially strapped, and had to cancel X's sports lessons and exit day care because he could not pay the fees.[93] When the mother asked him to pay X's school fees on 20 April 2019 he said he told her he could not afford it on top of child support, and that the mother started yelling at him in front of the children, who were in the car, saying that if he did not pay she was taking them to Country J, so he retreated taking the children in the car and leaving.[94]
On 7 May 2019 the father commenced these proceedings, in particular seeking to restrain the mother from relocating to Country J with the children. On 18 May 2019 there were text messages regarding X's admission to hospital with croup.[95] The father accepted that his response was not a reasonable one. His evidence was that at the time he did not trust the mother and thought she was making it hard for him to see the children.[96]
On 23 May 2019 the parties were restrained by injunction from removing the children from the Commonwealth of Australia with an Airport watchlist order, and there were orders for the children to live with the mother.
In the immediate post-separation period changeovers usually occurred in the Town G Bunnings Carpark. The father's evidence was that the mother refused to communicate with him about changeover locations from June 2019.[97]
On 21 June 2019 the mother met with counsellors at U Counselling Service. They recorded that she told them, amongst other things, that the next court date for her AVO was in a month but that her solicitor had told her she was not confident of the outcome given the evidence they had.[98]

[109]

In cross-examination the mother denied Mr M was ever in the bath, or bathroom, when X was in the bath. The mother said that this interaction occurred when Mr M was in the kitchen, which is just around from the bathroom, and the "they" in the bath referred to the children. The mother said the maternal grandmother was present.[120]
The maternal grandmother, however, also made no reference to Mr M in her evidence, despite apparently having spent time with him when visiting the mother and children.[121]
The mother was later asked about the 15 January 2020 notes again, and said the counsellor told her that coming out of a domestic violence relationship she might not be strong enough to 'keep the sharks out', that is to protect herself from predators. She said she thought it very strange that Mr M had seemed so intent on meeting her children so early in the relationship. She said that Mr M denied having a criminal record and she believed him. She said she was present when Mr M would wrestle the children and agreed that this was occurring at around the time the children were starting to exhibit sexualised behaviours. She accepted that there might have been very short periods of time when Mr M was alone with the children. Mr M's child GG would occasionally spend time with Mr M in her home. She denied knowing Mr M's date of birth or his address, although had been to his house.[122]
On 19 September 2022 in the Family Report interviews:[123]
1. ... The father stated that he knew the mother had dated someone who worked at [a store] (could not recall his name), and advised that [X] had told him that the mother and her partner were always fighting. The father then stated "[Y] has brought up that mum's friend shared a bed with me" and "[Y] said [...] and [...] walk around with no pants on".
It was common ground Mr M worked at a store. In cross-examination the father agreed he was aware the mother was going out with a person at the time it was happening, as the children told him. He confirmed that Y had said the mother's friend shared a bed with him.
When asked whether he was concerned about that, the father deflected by saying that Y had said 'mum's friend', and not Mr M. This was an evasive answer. There is no doubt the father intended to convey to the expert that Y was referring to the man from the store, that is Mr M, having shared his bed.
The father gave evidence that he could not recall when Y said these things, but that it was after the mother and Mr M had broken up and, he thought, after he had first spoken with DCJ, so that he was aware of the sexual harm allegations made by the mother against him. He denied the purpose of raising this with the expert was to suggest Mr M as an explanation for the children's sexualised behaviours. He said that he told the expert he did not believe Y when Y said this and that he asked Y if he was telling the truth. He said the expert must have forgotten to put that part of his statement in her report. He said he thought Y was trying to probe him as Y could be manipulative. The father maintained that the conversation occurred.[124]
The father said that while he had been told by the children that the mother and Mr M "were always fighting", and he was concerned, he was not extremely concerned. He said that if he had emailed the mother about Mr M he would have been accused of harassing her.
The evidence regarding Mr M, from both parents, is concerning. As noted elsewhere, viewed in totality the evidence concerning Mr M means that I find he is a possible source of any sexual abuse of one or more of the children. This significantly complicates the matter, particularly where the mother has acted to ensure that little if anything is known about Mr M.

[133]

On 3 December 2020 the mother says she observed Y holding his penis and moving his hand up and down. She says he walked over to X and Z and touched them with the end of his penis and said "snot, snot". She said she told him to stop and asked what he was doing and that he replied, "[t]here is snot coming out of my penis, like how snot comes out of dad's penis". He then said that he was lying, after which she took him to a separate room and asked where he had seen this and he responded, "Dad and I were in his bed and dad was holding his penis and snot came out". On 4 December the mother reported the incident to the child protection helpline.[156]
In cross-examination the father had no explanation for why X had said that. He rejected the proposition that a possible explanation for why Y allegedly said he had seen snot coming from his penis was that he might have seen him masturbating.[157]
On 4 December 2020 the mother observed both Y and Z repeatedly touching each other's penises. She says she became distressed and took the children to the DCJ offices. In the waiting room Z pulled his pants down, spread his bottom cheeks and was walking around. She says a case manager asked the children if they wanted to go to the father's and Y replied 'yes, I want my dad in my bum".[158] DCJ officers observed the behaviours.
The mother and children attended a protective behaviours program which recommended various strategies including only having one child at a time in the bathroom and putting clothes on after bathing.[159]
In December 2020 X was assessed by Dr KK. There was an extensive history given by the mother, including of significant exposure to domestic violence. However, as the father raised,[160] the mother did not give a history of the sexualised behaviour of which she had been complaining to DCJ and others. Given Dr KK is a child psychologist who was assessing X's behavioural issues it is not clear why the mother did not, apparently, inform him of this aspect of X's behaviours.

[138]

On 1 March 2021 the mother says Z told her that when he wanted to go to the toilet "dad touched my penis forever" and that when she asked him what happened Z ran off. She says later that night Z told her that "[d]ad touched my penis with his hands, but I'm not angry anymore".[164]
The mother says that on 1 March 2021 X told her that the father gets really cranky at him when he makes a mistake reading and that if he makes a mistake, he has to read another page until he stops crying or making errors.[165] This was part of her case that the father is unable to cope with, or accept, X's neurodiversity and so favours the other children over X. The mother ties this to the fact that the father was physically violent to X in the relationship, but not to the other children, and raises concerns in her affidavit that X has continued to be treated differently by the father post-separation and since his diagnosis in September 2021.[166] In a similar vein, she says that on 13 July 2022 X told her that "Dad's favourites are his family in [City L], then he likes [Z], then [Y] and then me."[167]
On 2 March 2021 the mother audio recorded a conversation with Z. Her diary entry of that day said in part "[r]ecorded X when he went to bed in the hope to catch that his dad touched his penis. But he told me his dad hurt him."[168] The recording was played during the trial and translated in court by the interpreter, who had difficulty noting that much was indistinct particularly from the child. While this was a less than ideal way of assessing the conversation, the mother was clearly repeatedly asking Z whether the father had hurt him and eliciting replies such as "Papa has hurt me there" while also saying things such as "Mama doesn't hurt you".[169]
The mother accepted in cross-examination that she was asking questions, but said she had been told she could ask open questions. She denied she was "interrogating" Z and denied that she wanted ongoing disclosures she could write down for the purposes of the proceedings. She said she was just following the advice of health professionals and was not putting in Z's mind the idea that the father hurts him and that she does not.[170]
I consider the diary entry and audio recording significant evidence which makes it clear that, despite being told by police not to lead the children into disclosures, the mother continued to do so. Z had just turned three. I find that the mother was encouraging Z to make negative statements and disclosures about the father, while at the same time confirming to Z that he was safe with her, and by implication not safe with the father. Whether this was intentional leading for forensic purposes, or a genuine but misguided attempt to discover the truth, despite being warned not to do this, is not clear.
However, this is one of many pieces of evidence which highlights the unreliability of the disclosures made by the children, and provides a clear explanation for their disclosures to third parties.

[173]

The mother says the children have complex needs and that both prior to and post-separation she has been solely responsible for overseeing their health care, making medical appointments, following up those appointments and care strategies, making NDIS applications and arranging specialists.[225]
A report from Dr KK, child psychologist, dated 24 September 2021 stated that X met the formal DSM-V diagnostic criteria for an autism spectrum disorder without language delays. Dr KK also made a diagnosis of ADHD-Inattentive Type, and recommended that X would benefit from regular speech therapy, occupational therapy and psychology appointments. Dr KK made reference to the mother's behavioural concerns and DCJ involvement with X, but somewhat surprisingly made no mention to any sexualised behaviours.[226]
A report from Ms OO, an occupational therapist, dated 20 October 2022 recommended that X would benefit from fortnightly occupational therapy, fortnightly psychology sessions and six hour weekly one-on-one support worker assistance. Ms OO also recommended that X may benefit from additional one-on-one support at school. Ms OO observed that X struggled with emotional regulation and communication skills. No reference was made to X displaying sexual behaviours.[227]
Both parent's evidence of X's behaviours was consistent with these medical diagnoses.
The father described X as having a low level of emotional intelligence, getting overexcited and flapping his hands, being easily upset by others, having attention deficits, being easily distracted, having limited interpersonal social skills and, consequently, limited friends at school. The father included Dr KK's report in his affidavit and says he has done his own research to assist X, including liaising with Dr KK, and does not use physical discipline on any of the children.[228]
The mother described X as "inquisitive, energetic and sensitive". She says he does not cope well with change in his routines or arrangements, becoming anxious and needing considerable assistance. X attends a mainstream class and receives extra assistance in a separate class for reading, spelling and maths. She described difficult behaviours consistent with X's diagnosed conditions from age three, including X kicking Y when she was pregnant with Z, and the identification of these issues by a speech therapist. X is registered with the NDIS and receives funding for speech pathology, counselling and occupational therapy.[229]
The mother says she has dedicated a significant amount of time to educating herself to assist X in his emotional regulation.[230]
A report from Dr KK dated 19 September 2023 states that Y has features of autism spectrum disorder, but does not currently meet the formal DSM-5 criteria. Y does meet the criteria for ADHD - Inattentive type, and it was recommended that Y see a paediatrician to trial medication for his ADHD. The report also noted that Y would continue to engage in occupational therapy services.[231]
The father describes Y as energetic and playful with a wild spirit. He also says Y is determined, passionate about soccer, and is generally going well in school despite some speech and language delay issues. The father said Y has a big social group and good interpersonal skills.[232]
The mother describes Y as "an energetic young boy", and often the children's "leader" despite being younger than X. Y has been diagnosed with asthma and takes medication every morning and night and Ventolin as needed.[233] In December 2022 Y was identified as having issues by a teacher, and was also referred to Dr KK.[234]
The mother says that both X and Y have incontinence issues and go through stages of constipation. The mother says that she pays the full cost of treatment for Y, with X being funded by NDIS, and that the father has failed to engage with the issue.[235]
The father said that Z is a cheerful and cooperative child who is always in for a good time and is easy going. He said he had read about Z's NDIS approval in the Family Report but did not observe those behavioural concerns when Z was with him.[236]
The mother says that Z is a cheeky child who loves playing with his big brothers. He began stuttering around two and was enrolled in speech therapy. She says that in around May 2022 she noticed Z begin to exhibit similar behaviours to X such as being hyperactive, aggressive and distressed when not in a routine.[237] She said he is suspected of having autism and ADHD.[238] Z has an NDIS package and receives support in the form of speech pathologists, child therapists and occupational therapists.[239] The mother says that the father did not engage in the process required to get assistance and pressured her to having Z start primary school despite these issues.[240]
The mother says that she continues to provide the primary care for the children and in her affidavit outlined what a typical week of taking the children to their various appointments and extracurricular activities looked like. Her evidence is that the father provides little support and has not contacted the health professionals involved in the children's care. The mother takes X to weekly speech pathology appointments, fortnightly child therapy and occupational therapy appointments and six-monthly paediatrician check-ups.[241] She takes Z to weekly speech pathology, child therapy and occupational therapy appointments.[242]
She specifically makes allegations that Y has indicated to her that the father doesn't give him any or the correct amount of asthma medication and that Z has told her that the father once left him in his dirty underpants.[243]

[174]

The mother says that she has no family or other support in Australia and would be better able to care for the children if she relocated to Country J,[244] where she would live with her parents and would not be required to pay rent. She says her parents have been a strong source of emotional support her entire life and that the children have strong bonds with their grandparents and uncle. She also says that she has wider family in Country J who would be able to love the children and support them emotionally. She gives evidence that personally she longs to be at home and finds that she feels isolated in Australia and struggles both financially and emotionally.[245]
The mother says her parents visited Australia prior to the birth of each child.[246] In particular with Z's birth she says they stayed for eight weeks and provided significant assistance including bathing the other children, cooking, and cleaning.[247] The mother also details that during the relationship she travelled regularly to Country J since 2013.[248]
The mother says she would support the children's relationship with the father if he remained in Australia, by visiting Australia once per year during the Country J school holidays, ensuring the children have block time with the father in Country J, regular unlimited zoom and phone calls and emails, within reason, and by sending notifications about the children if they are unwell, alongside facilitating cards and gifts. [249]
Regarding the children's health needs the mother gives some evidence that she has contacted the equivalent of the NDIS in Country J who have explained what would be required to transfer the boys over.[250]
Overall, the mother's evidence is that her ability to function as the primary caregiver will be better in Country J. She said she was confident in her ability to find work in Country J due to a shortage of health care workers and feels that her mental health would benefit greatly from relocating.[251]
During cross-examination the father gave evidence that he was concerned that if allowed to relocate, the mother would not cooperate or facilitate his time. It was his evidence that these concerns arose from the fact that historically, the mother has withheld the children on several occasions since separation.
However, on the mother's own evidence, X in particular does not cope well with change in routines or arrangements.[252]

[178]

There was a great deal of evidence which suggested that the father has not fully engaged with the children's medical issues and needs and has effectively abdicated responsibility for these needs to the mother. It was a contentious topic, and on the father's case the mother had excluded him and he had done what he could. On balance I find that the father has been less involved in and less engaged in the children's medical care in part due to a lack of interest on his part. The expert considered the father's attunement to the children and this is considered elsewhere. In cross-examination on the mother's various requests for financial contributions to various things for the children, including swim classes and the optometrist the father's accepted that he had declined to make any contribution,[260] and that at times his response to the mother's requests has been to tell her to get a job.[261]
Further, when put to the father that the mother had gained employment, the father accepted that he had been unwilling to allow change in the care of the children to facilitate her employment.[262]
When questioned further on the topic by counsel for the ICL the father confirmed that one of the reasons he did not want to respond to the mother's requests was because he felt the child support he was paying at the time was sufficient, despite acknowledging that child support would not cover the children's private school fees. The father also acknowledged that there was a large deposit of money in the trust account of his solicitor, and that that money was his mother's, and he could have sought access to it for the payment of school fees and other costs.[263]
The father accepted that he would be unable to continue in his current position if the children were to live with him.[264] The father accepted that he would find a job somewhere else, though acknowledged that he had not yet done that. He also acknowledged he was unable to provide an indication of his likely hours of employment, given that his work schedule is inherently inconsistent.[265]

[186]

The expert accepted that if the mother has a false entrenched belief that the father poses a risk of sexual or other unacceptable harm to the children, from which she is unable to shelter the children, that would be an important consideration as it could give rise to a risk of significant emotional and psychological harm to the children who could come to falsely believe they have been sexually harmed by the father.[276]
The potential consequence of a false belief of sexual abuse by a parent were summarised by the expert as potentially impacting the child's development of typical skills, their development of understanding of relationships and how relationships and reciprocal relationships work, including being based on a level of trust and respect and honesty, and this could undermine the child's psychological blueprint of what a healthy relationship consists of, with likely adverse consequences on the child's ability to form healthy relationships throughout their whole life. That would include a strong chance that it would have significant impacts on a child and how they function and their ability to relate to other people and have healthy functional relationships.[277]
In the short term the expert identified a high risk of emotional distress and potentially maladaptive thinking which "tends to lead to children experiencing behavioural, emotional [and] mental health challenges" which might look like aggression, mood disorders, or extreme emotions, and may impact on achievement in a school setting.[278]
The expert's analysis of the trauma suffered by a child falsely believing they had been sexually abused by a parent was similar to the child actually having been abused by a parent.[279] That follows as psychological trauma may result from the understanding of what has occurred.
If that child later finds out that was a false view, the expert said that could also have quite catastrophic consequences for the child's relationship with the parent who imbued the false belief, impairing their understanding of relationships and ability to feel safe and secure.[280]

[198]

The expert opined that:[296]
1. The behavioural presentation of the children clearly indicates that they are experiencing psychological distress, which can be linked to the actions of both parents in the context of the current dispute. It appears that the children are being exposed to attempted alignment by both parents which is severely impacting on their psychological safety and wellbeing. The children, [X] in particularly, (sic) displayed highly concerning behaviours indicative of the extent in which he has been actively exposed and involved in the parental dispute. In attempting to align the children with either parent, the parents are causing significant psychological harm to the children which will likely have lifetime implications on their mental health and interpersonal and relationship capacities.
The expert referred to the parties' "entrenched and inflexible positions" and said, that:[297]
1. .... Despite the obvious impact on themselves, both parents presented with limited insight into how the dispute is impacting the children. Neither parent demonstrated any real insight into how the children were experiencing this dispute, other than to highlight deficits in the other parent due to mutual allegations of attempted alignment of the children. Both parents seemed aware that the other parent was actively attempting to align the children, with the mother accusing the father of enticing the children through promises, and the father alleging the mother has fabricated a range of abuse allegations in an attempt to have him assessed as a risk to the children.
In oral evidence the expert said the children's indicia of trauma, other than sexualised behaviours, included difficulties in regulating their emotions, and the use of aggressive behaviours towards one another both physically and sexually.[298]
The expert said that while the other risk allegations were untested, she could say that "the parental conflict and the likely alignment of the children by both parents was visible in the children's presentation and in their interviews" .[299] The evidence in support of that proposition is overwhelming.[300]
Assuming no other risk issues the expert said in the Family Report:[301]
1. Regardless of the primary residency of the children (in the event they remain living in Australia), it is extremely concerning that the parents may continue to expose the children to the parental conflict and dispute. There seems to be no sign of this abating, and it is considered that regardless of the outcome of these proceedings, the parents will continue to attempt to influence the children to align them to their primary care. This is particularly likely as the children become older and have more of a voice and a say in their care arrangements. Given the extent of the apparent impact of the parental dispute upon the children, which includes the children likely presenting with indicators of psychological harm, the Court may wish to consider future parenting arrangements which alleviate the pressure and influence upon the children. The children are likely to benefit most, from a parenting arrangement in which they reside in the primary care of either parent and spend minimal time with the other parent.
In oral evidence the expert clarified "minimal time" as six or less than six times per year, or in effect "recognition" visits, perhaps around special occasions such as birthdays and Christmas.[302] The expert confirmed this view should apply regardless of which parent the children primarily live with. She said her opinion was:[303]

[202]

The expert said who the children should primarily live with was dependent on all the findings. If there was a finding of family violence, as alleged by the mother or as alleged by the father, that would speak against the children being in the primary care of the family violence perpetrator. If the father poses a risk of sexual harm that would be, effectively, determinative of the issues.
The expert considered that the children's neurodiversity, and the impacts of the conflict they have suffered weighed against a change of primary residence. [307] She considered that moving from the mother to the father would represent a significant loss for them, particularly Z who has no experience of living primarily with his father, and involved risks associated with the father's untested capacity to be the primary carer for the children. She also noted that the father's entrenched negative view of the mother creates similar issues of alignment and alienation as exist living with mother.[308] She was concerned about the father's capacity to engage in primary care and his capacity to care for the children's emotional needs. [309]
The expert did not accept that any deficits in the father's capacity would be addressed by his proposal for the children to spend regular time with the mother each alternate weekend and half school holidays, particularly given their particular neurodevelopmental conditions and needs. She further said that the "instability and the change and difference between two homes isn't best for [the children]" and that spending the time during the school week with the less capable parent would not be in the children's best interests,[310] coming back to the expert's opinion concerning recognition time.
The expert had also formed the view, based on the accounts of the mother and X, that the father favoured Y over X.[311] However, I note that this is a contentious issue and the finding of fact is subject to the court's credit findings regarding the mother's reliability and her influence on X.

[204]

At the conclusion of the trial the ICL provided a final proposed Minute of Order.[313] The ICL proposed the mother have sole parental responsibility, provided that the mother notify the father and of any decision and consider his views, that the children live with the mother and during school terms spend time with the father each alternate weekend from the conclusion of school, or 3.00 pm, Friday until before school or 9.00 am, Mondays, and for half school holidays. The orders sought also made provision for special occasion time, and for the children to have electronic communication twice per week, Monday and Thursday, with the parent who they are not with.
Further, the ICL proposed that the mother is not to make any changes to the children's living arrangements that make it significantly more difficult for them to spend time with the father pursuant to these orders. The ICL confirmed that implicit in these orders is a rejection of the mother's international relocation proposal as being in the children's best interests.[314]
The ICL also proposed orders for changeovers through school where possible or otherwise outside each parties residence to minimise face to face contact, orders for communication between the parents to be via email or text except in emergencies, regarding access to information, keeping each other informed, the administration of medications, the right of both parents to attend at school, the continuation of attendance at H School Town G, and a series of standard restraints including on physical discipline, denigration of the other parent, discussing the proceedings or the allegations in them, changing the children's names, or religious indoctrination without consent, excepting general cultural events associated with Country J or New Zealand culture, or recording changeovers.
The ICL's orders also provided for the mother to engage in counselling. To be an effective parenting order that order would need to be a condition precedent to the children living with the mother, which the ICL conceded would present practical issues given the proposal is that the children live primarily with the mother.[315] Provision was also made for the mother to provide to her counsellor documents from these proceedings, which could be a permissive rather than a mandatory order.
Provision was made for travel outside Australia by both parties, with the father to hold the passports. Given the animosity between the parties, and the mother's desire to relocate to Country J, I would have no confidence that the mother would ever return the children to Australia if given the opportunity to take them overseas. However, it might be that provision should be made for this to occur if the parties can agree to it, and the terms on which it is to occur, perhaps by payment of a substantial bond.
The ICL sought a costs order against each parent in equal parts in the sum of $17,975.15 , noting that each party's share was $19,625.15 but that the parties had already paid $1,650.00.[316] The parties will be given an opportunity to be heard on this issue if they do not agree to pay these sums.

[205]

The father set out a series of six proposals at the commencement of the trial, subject to the court's findings.[317]
The father's primary proposal (Application A) was based on a finding that the mother posed an unacceptable risk of psychological harm to the children "as primary carer", either on the basis of her entrenched and erroneous view that the father poses a risk of sexual harm, or the basis that she will continue to be unable to prevent the children from harming each other by perpetrating sexual behaviours on each other.
On that basis the father proposed that the children live with him and that he have sole parental responsibility for the children, unless the court finds the mother has the capacity and willingness to share parental responsibility with him.
He did not press his application for a moratorium given the expert's opinion.[318] The father's proposals for the children to spend time with the mother was premised on a pre-condition that she comply with an order to engage with a psychologist to address her entrenched and incorrect belief that the father is causing sexual harm to the children and to provide the mother with targeted strategies to address the children's sexualised behaviours.
Subject to that condition he proposed the children spend time with the mother in a gradually increasing scheme, graduating to each alternate week from after school Wednesday, or 3.00 pm till the commencement of school the following Monday, alongside half school holiday periods. He also proposed communication orders and other standard non denigration and restraints and orders around keeping informed.
If the mother relocated to Country J, the father proposed that the children spend 28 days each year with the mother, with the location for such time to alternate year by year between Country J and Australia, and with time to occur during the Australian school holidays, implicitly accepting that it would be safe for the children to leave Australia with the mother.
The father proposed that the ICL and expert explain the orders to the children and that a copy of the orders be provided to DCJ for their file.
The father provided five further alternate proposals that were premised on the court making various different findings.
Proposal B was premised on a finding that, although not holding entrenched and erroneous views about the father posing a risk of sexual harm to the children, there is a finding that the mother is unable to prevent the children from acting in a sexually inappropriate way with each other. On that basis the father proposed substantially similar orders to those in proposal A.
Proposal C was premised on a finding that the mother has an entrenched negative view of the father leading to the children being regularly and unnecessarily exposed to parental conflict. On that basis the father again proposed broadly similar orders.
Proposal D was premised on a finding that the mother will not adequately promote or facilitate the children's relationship with the father. On that basis the father again proposed broadly similar orders.
Proposal E was premised on a finding that the children live with the mother and that they are permitted to relocate to Country J. In that case the father proposed that orders be made that the father spend time with the children in Australia for a period of ten days over the Christmas period, that being Country J school term 2 holiday break, and for 28 days in Australia during the summer school holiday break in Country J.
Proposal F was premised on the children living with the mother, but on the finding that she will not promote a relationship with the father if she is able to relocate and so should continue to live in Australia. On that basis the father sought equal shared parental responsibility, the children to spend time with the father for five consecutive nights from the conclusion of school or 3.00 pm each Wednesday until the commencement of school or 9.00 am the following Monday, and half of each school holidays. Provision was made for communication once a week, and special occasions. Changeovers were proposed to be through school or at a public place, and there were similar general restraints, information and keep informed orders proposed.

[209]

The ICL submitted that the expert's opinion that there should only be identity contact with the non-live-with parent, absent a finding of unacceptable risk, was "something of a surprise" to the ICL.[322] As I noted at the time, I had the same response.
The ICL submitted that whilst the expert's opinion should be given weight and considered, the specific recommendation for recognition time was "somewhat draconian in terms of the circumstances of this case", and that although a high conflict case, when weighing all the issues the court would not order the "effective removal of one parent" from the children's lives which would be "a radical change".[323]
On the issue of whether the level past conflict was necessarily indicative of future conflict the ICL submitted that with the making of final orders the parties', and in particular the mother's, "evidence gathering" would likely cease as "the contest will be over".[324]
The ICL's orders assume that consistent with the evidence, and absent a relocation order, both parties would remain in Town G, and that the mother could visit Country J with the children,[325] which I note is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention").
The other orders sought flow from these main proposals and the premise that both parents would remain involved in the children's lives.
The essence of the ICL's proposal, is that in the case of two poor parents, who each have significant parenting deficits and each present significant risks to the children, maintaining the involvement of each parent in the children's lives will act as a protective factor against the other parent's risks, and will to that extent ameliorate risks in both households whilst adding different risks by keeping both parents involved. The question involves a fine balancing of various risks which are difficult to quantify. The proposal also has the benefit of allowing the children an ongoing relationship with both parents and avoiding the undeniable loss that would occur if either parental relationship was to be ceased.
The ICL submitted that there was no unacceptable risk of physical harm in either household.
Given the children's needs, it was further submitted that it was important for each parent to have access to medical and schooling information.
It was submitted by the ICL that "[i]t may be that the children encountered some amorous connection between the mother and [Mr M]." However, as the ICL submitted, that would be speculation.[326]
The ICL accepted during submissions that the suggestion for changeovers to occur at the parties' place of residence (during non-school days) was potentially problematic, and that the use of a supervision service may ameliorate the court's concerns.

[210]

The father submitted there would be a finding that the father does not pose an unacceptable risk of sexual harm, and further that the mother's case on that issue never had any reasonable prospect of success.[327] Similarly, he submitted that the mother had not made out her allegations of family violence.[328]
The father also submitted that the court could find that the mother took steps to ensure that the court did not receive the full information that was available about Mr M and that she was evasive with the court about his involvement with her life and with the children.[329]
It was submitted the children had learned that the way to please the mother was to give adverse information about the father. [330] The children's various disclosures were submitted to be the result of persistent and leading questioning by the mother, and leading questioning by DCJ, and not the result of being sexually abused at the father's house.
The father sought a finding that the mother genuinely believes the allegations of sexual abuse and that her apparent equivocation was not real,[331] noting in particular the documents and evidence from Ms E.[332] The father submitted that the court would find that the mother's evidence of equivocation on whether or not the father has committed sexual abuse was unreliable against the significant weight of the evidence, and effectively due to a forensic concern about the result that might follow from a finding that she had an erroneous but fixed belief the father sexually abused the children. The submission that the mother's belief was genuine implicitly dealt with the father's evidence of his belief there was malicious fabrication.
The father submitted that the court was not in a position to find why the children behave the way they do.[333] For example, the father submitted that Z gyrating his hips could be a result of seeing another child behave that way at daycare, or attempting to imitate his brothers, consistent with the expert's acceptance that there were many potential unknown sources of exposure to sexualised material, and further that the mother was incapable of accepting any innocent explanation for the behaviours.[334]
The father submitted that the mother presented an unacceptable risk to the children if they continued to reside with her, as distinct from an unacceptable risk of harm of unsupervised time.[335]
This was said to arise from her entrenched and erroneous belief that the father poses an unacceptable risk of sexual harm, and her inability to shelter the children from that belief which would eventually lead them to hold the false belief they had been sexually abused, with the consequences identified by the expert, which it was submitted was already being displayed .[336]
The father submitted that the mother does not have the capacity to prevent the children from acting upon sexualised behaviours when in her care, and this was also said to be an unacceptable risk of the children living primarily with her.[337]
The father also submitted the mother was unable to accept that any of the children's behaviours might be a consequence of her actions.[338]
On the other hand, the father submitted the evidence did not support the finding that the father also had an entrenched negative view of the mother, having accepted that the children are acting in abnormal ways, but that the only "entrenched" view held by the father is that he is not sexually abusing the children and that the mother is intent on having it found that he is.[339]
The father identified various factors which it was submitted ameliorated the risks posed by the mother, but which also, implicit and consistent with the ICL's submissions, did not involve acceptance of the expert's view that there should be recognition time only with the non-live with parent.
It was submitted that by living with the father the children would be exposed on a less-frequent basis to the mother's entrenched beliefs and attempts to align them, and that this would mitigate against her reluctance to promote their relationship with the father. There would also be greater time with the father to allow the children to experience the father for themselves, without constant negative input from the mother.[340]
The proposal that the mother's time with the children be conditional on her undertaking therapy directed to addressing her erroneous beliefs was also said to ameliorate the risks the children face in the mother's household without having to resort to a recognition time only order.[341]
The father was conceded to be untested as a primary parent, and it was also properly conceded that the father does not have the same degree of capacity to provide for the children's emotional needs as the mother.[342] However, it was also submitted the children would receive adequate care in the father's home and that he was capable of providing for their key needs, for example, by taking them to medical appointments contrary to the case that he neglected that aspect of their care.[343]
The father acknowledged that the court would be looking to the "least worst" outcome in respect of the parents, and that the court could not find that either parent posed no risk to the children whatsoever[344]
The father submitted that the accumulations of risk in the mother's primary care, including that posed by her failure to stop the children from engaging in sexualised behaviours in her home meant that the proper decision was to change primary care to the father with the children still spending regular time with the mother as outlined in the father's proposal.[345]

[211]

The mother relied upon the submissions made in the case outline document filed prior to the commencement of the final hearing.[346] The mother did not seek a finding of sexual abuse by the father but maintained the submission that he posed an unacceptable risk of sexual abuse.[347]
The mother relied on the children's sexualised behaviours from September 2019 and continuing, which were not ultimately in contest, including preoccupation with their genital and anal areas, touching their genitals in public, touching or trying to touch each other and other children or people sexually, exposing themselves and acting sexually in public places including at DCJ offices, N Family Services and at day care and in front of the mother's supporting witnesses.[348]
She also relied on the children's disclosures where they named the father directly to establish unacceptable risk of sexual harm. The mother relied on the voluminous evidence, set out elsewhere, of sexual behaviours of the children and in particular the disclosure to the independent officers at DCJ on 13 July 2021.
The mother did not accept that the DCJ question to Y regarding someone 'putting something in your bottom' was leading, as it did not suggest who had sexually abused him, but conceded that in the circumstances of the questions being asked it was led to a certain extent.[349]
The mother also relied on the disclosure on 12 January 2023 that the father took pictures of Z's bottom and submitted that although drawing any firm conclusions from what the children say may be difficult for the court, the incident could not be ignored.[350]
It was submitted that it was clear the children have made disclosures concerning the father and that the court would be required to accept that fact.[351]
The mother also submitted that to overcome that evidence the father needed to convince the court there was some other explanation for the disclosures, and submitted that the evidence did not establish the father's case that the mother had conveyed to the children through persistent questioning that they would be rewarded for making disclosures about the father.[352] The mother conceded there had been times when she asked leading questions, but said that had stopped. Given the disclosures continued, she submitted there was no other explanation why the children were saying it was the father who had abused them.[353]
The mother also submitted that the clear inconsistencies in the father's chronology of when he said he became aware of the allegations, and his evidence that he had destroyed the tapes of his own interrogations of the children, would be relevant to assessing the issue of past exposure to sexual harm.[354]
In summary, reliant on Isles and Nelissen [2022] FedCFamC1A 97 and the dissent in Fitzwater and Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212, the mother submitted the court would err on the side of caution and find that there was at least the possibility that something had happened involving the father. That possibility, she argued, should result in the court finding that the father poses a risk of sexual harm to the children, making him an unacceptable risk within the law. The mother further submitted that the evidence did not support the suggestion that the mother had "grilled" the children as an explanation for the disclosures.[355]
The mother submitted that she did not ask Ms FF to redact information in her counselling records to specifically exclude relevant information about Mr M to mislead the court.[356]
The mother submitted, in effect, that if the father actually thought she had a fixed but erroneous view which would be continued to be conveyed to the children he would not have proposed the level of time with her that he did.[357]
The mother submitted, consistent with the expert's opinion, that the children's behaviours meant that her responses were reasonable. She further submitted that the court would accept her evidence that she does not have a fixed view, but with an acknowledgement that on the evidence the court could find that she believes the father sexually abused the children. Picking up on the expert's opinion, the mother submitted that it was reasonable of her to give evidence that she was not certain of whether the father had sexually abused the children, given the advice she received that if she said she was certain and it was found not to be true she might lose the children to, so that this was her acting protectively.[358]
On the issue of family violence, it was submitted that the mother would be accepted as to the history and as to her expressed fear of the father due to the psychological impact of his violent behaviours on her, relying on the expert's opinion at [117] of the Family Report. It was submitted that the records of and disclosures to other independent bodies were early and consistent, and further that the father's own evidence of control of the bank accounts between 2013 and 2017 was evidence of financial coercive control, as was his later reduction in income and child support and decisions not to provide money when requested. Significant reliance was placed on the father's denials and subsequent admissions regarding threats to have the maternal grandmother gaoled. It was submitted that the requirement for the mother to continue to engage with the father might negatively impact the mother.[359]
The mother submitted that the father's parenting capacity is lacking in a number of respects as opposed to the mother's capacity, and that the father's capacity to communicate with her and other key people in reference to the children was also limited, if not non-existent, noting that he took no action to contact the majority of the children's treating medical professionals until 1 March 2023 and that his capacity to maintain and dispense medications as required was poor.[360]
The mother submitted that if the court found it was in the children's best interests to live in Australia then she would stay in Australia, but that the children's best interests would be served by living in Country J with her, which would be appropriate particularly if the court accepts the expert's opinion that they would then spend only six days per year with the father.[361]
It was accepted that there was no evidence that the father could relocate to Country J.[362]

[212]

I find that neither parent is a witness of truth. I find that both have treated the collection and giving of evidence in these proceedings primarily as a forensic exercise, with a willingness to lie at will to advance their case. That primary finding has significantly complicated the ability to make specific findings of fact, in particular given that subject matter and gravity of the allegations made by each party against the other requires have a degree of comfortable satisfaction.[363]
The father's case is that the mother fabricated the family violence allegations, and intentionally generated conflict with him, to justify an application to relocate with the children to Country J, an intention he says she had formed at the time she started making complaints of family violence to third parties prior to separation.
Considering all of the evidence I find that the mother had formed the desire to relocate to Country J with the children prior to separation, was aware that the father would not agree to this,[364] and that evidence of family violence by the father against her and the children would assist her in obtaining an order permitting international relocation over his objection.
In this context I find the mother's denial of her desire to relocate to Country J with the children early in these proceedings, in particular during Child Impact Report interview, was not honest. I find that denial was designed to give weight to her allegations of family violence by hiding a reason she might have to fabricate those allegations.
It is clear from the first entry in the mother's diary on 4 April 2018 that, by that stage at the latest, the mother had been advised "to collect proof of the emotional domestic violence [she'd]been in for five years" and that this was at least a, if not the, purpose of the diary. That would not be noteworthy. It is the mother's denials that she kept the diary, even in part, for the purpose of collecting evidence that I find were not credible.
Not only do the diaries open by referring to the collection of proof, she kept the diaries in her second language English, rather than in Country J Language which the father does not speak, which she said meant said she had to hide them at her GPs office, so the father did not find them. Her evidence on this topic was, needlessly, dishonest. This was another example of her willingness to lie when she thought a lie better suited her forensic purposes.
In this context I find that the mother's statements to third parties, including hospitals, counsellors and police, were made with a clear consideration of the potential evidentiary value of those statements.
The mother's omission of evidence in relation to Mr M, her decision to prioritise the forensic conduct over the case over the children's physical safety in the face of a credible threat to avoid a paper trail, her actions to deprive the other parties and the court of information about Mr M sufficient to make enquiries that might have shed light on whether Mr M may have sexually abused a child or the children, and her attempts to interfere in the production of subpoenaed documents containing information adverse to her case, together with the many other issues in respect of which she lied, require great caution to be exercised in assessing her evidence.
The facts that the mother had decided to attempt to relocate to Country J with the children and to collect evidence in relation to family violence prior to separation do not, of themselves, mean that she was lying about the alleged family violence.
A person in a situation of domestic violence of the kind alleged by the mother might reasonably consider the children's best interests to be served by an international relocation away from the violent parent, and might reasonably be advised to make complaints to third parties, and keep a diary, to record events for future reference, particularly when the absence of contemporaneous complaints is heavily relied on by a family violence perpetrators as a basis for alleging subsequent fabrication.
The difficulty in the mother's case is created by the fact that faced with the constraints which the legal and evidentiary processes of our legals systems places on all parties, in pursuit of her goal of an international relocation order, the mother has repeatedly elected to lie to and to seek to deceive the court, and has acted in a manner which has knowingly exposed the children to significant unnecessary psychological trauma in her house and at her hands, including by repeatedly questioning them to extract adverse statements about the father, seeking to align them with her and to turn them against the father, and by exposing them to intense parental conflict and hostility all of which has clearly caused all three children significant psychological harm.
However, as discussed, the father has also repeatedly lied, and also similarly knowingly exposed the children to significant unnecessary psychological trauma in his house and at his hands by also questioning the children, seeking to align them with him and to turn them against the mother, and by exposing them to intense conflict and hostility all of which has clearly caused all three children significant psychological harm.
In this way, neither party has assisted the court in reaching a resolution of the factual issues nor in determining the orders in the children's best interests.
The fact that the mother repeatedly lied about many matters does not necessarily mean she lied about everything. She may have lied through lack of faith in the legal system. Her lies do, however, require great caution to be exercised in assessing her evidence.
In relation to family violence the mother's major allegation of physical abuse of the children being that the father dislocated X's arm when he was angry with him on 28 May 2017, which was a key aspect of her initial complaint to DCJ on 2 July 2020, does not stand up to scrutiny. The fact that the mother dislocated X's arm, without anger or excessive force in a similar way weeks before, shows how easy it was for that joint to be dislocated innocently. Her omission of this critical fact in her reliance on the event in approaching DCJ, and the fact that on 16 February 2018, after the dislocation incident, the mother reported that "he has never physically abused her or the children",[365] was I find strong evidence that the mother did not consider this was an intentional physical assault at the time, and only characterised it as such in 2020 in the context of these proceedings, intentionally omitting relevant facts to have a concrete event of physical violence to rely on in her case.
The evidence of the alleged dragging event does not reach the relevant evidentiary standard.
I am satisfied that the mother has not established physical violence by the father against the children and has not established that she believed the dislocation event was an assault at the time it occurred. I find the mother cherry picked the facts of an arm dislocation when making her complaint to DCJ, knowing that the full facts would not support her allegations. An example of her tailoring her complaints to third parties to suit her forensic purpose.
The mother's descriptions of the father's poor emotional regulation, and being emotionally and verbally abusive, including through yelling and shouting and threatening her, bears a resemblance to some proven behaviours of the father post-separation. In particular to the father's conduct on 12 July 2019, where he sought to blackmail the mother in relation to these proceedings by threatening to have the maternal grandmother arrested and banned from Australia.
Similarly, the pre and post-separation evidence was potentially capable of supporting a finding of the father having an attitude that he was entitled to exert, and did exert during the relationship, financial control over the mother.
However, the evidence in relation to the mother's AVO application strongly suggests that she was focussed on evidence gathering and was using the AVO proceedings for forensic reasons rather than due to any relevant fear of the kind which would justify the granting of such an order.
The consistency of some of the father's alleged pre and proven post separation behaviours, supported by documented contemporaneous complaints of that family violence starting in late 2017, would usually be given significant weight.
However, when viewed in the context of the whole of evidence, I find that this is one of those relatively rare cases where such contemporaneous evidence is of little persuasive value. That finding takes into account the fact that the mother is an unreliable witness who was willing to lie to support her case, acutely aware of the evidentiary value of evidence, and most significantly focussed on both creating, or avoiding the creation of, documentary evidence so that the available documents supported her case.
The maternal grandmother was an advocate for the mother. I give no weight to her evidence as independent corroboration of the mother's evidence of family violence.
While viewed as a whole the evidence suggests it is possible there is some truth to the mother's case of ongoing verbal and emotional abuse and financial coercion and control. However, the mother's dishonesty in relation to so many matters means that I cannot be persuaded to the relevant evidentiary standard that she has established the alleged family violence during the relationship, and post separation can only be satisfied in relation to the one incident on 12 July 2019.
To the extent the expert considered the mother's post-separation behaviours should be assessed and weighed depending on the extent to which she was subjected to family violence in the relationship, the mother has deprived the court of the capacity to do that.
Turning to the father's allegations of family violence against the mother, the father's evidence that the mother was lazy and neglectful is entirely inconsistent with all of the objective evidence of the great care, effort and attention the mother has paid to the children's medical and educational needs both before and after separation.
Similarly, the father's behaviour on 12 July 2019, his willingness to lie about his behaviours that day, and the proven post-separation interactions between the parties, are irreconcilable with the father's characterisation of the parties' relationship dynamic in his evidence, in which he was the passive victim who would do what the mother wanted to avoid her anger.
I find the father's evidence of family violence and neglect by the mother during the relationship to be entirely fabricated for the forensic purpose of trying to neutralise the mother's allegations of family violence against him.
The nature and extent of his lies on this topic, together with his lies about 12 July 2019, cause me to find that he, like the mother, is an unreliable witness whose evidence must be treated with caution.
The next issue requiring consideration is whether the father poses an unacceptable risk of sexual harm to the children. Again, the mother's dishonesty in relation to this and other matters does not of itself mean that there is no risk.
The mother first raised the issue of sexualised behaviours with Ms FF at N Family Services on 24 July 2019. That was at about the time the mother commenced her relationship with Mr M. Despite that the mother's affidavit evidence identifies the behaviours as first arising in September 2019.
The mother told her counsellor that she did not want to introduce the children to Mr M, but he "insisted". She described him as extremely controlling, and on her evidence, he lied to her about the terms of the AVO allegedly granted to him against his former partner.
The mother equivocated as to when Mr M first met the children, but accepted it was possible that this was by July 2019.
The mother's contemporaneous statement that the children had become "very attached to" Mr M was irreconcilable with her oral evidence denying Mr M was spending a lot of time with the children. I find that the mother intentionally minimised Mr M's involvement with the children in that evidence. I find that she did this to avoid taking the emphasis off the father as the likely or most likely cause of the behaviours and so being a risk of sexual harm to the children, supporting her international relocation application.
The evidence concerning Mr M taken all together means that there is a possibility that if one or more of the children were sexually abused, that it was by Mr M.
I again note that Mr M is not a party, and is not represented, and that this finding is made as between the parties in these proceedings and is not to be used against Mr M in any other context.
The mother's conduct in obscuring Mr M's involvement with the children has made any attempt to determine the causes of their sexualised behaviours with any degree of certainty difficult if not impossible.
Nevertheless, it is necessary to consider whether on the available evidence there should be a finding that the father represents an unacceptable risk of sexual harm to the children applying the relevant standard.[366]
The expert was unable to provide an opinion on the likely cause of the children's behaviours. As she said, and as I have found, "[i]t's hard to grapple and hard to decipher, and to really understand what has happened in the context of the increasingly sexualised behaviour." [367]
While the expert considered the trigger could have been exposure to "some form of sexual harm", noting that parental conflict itself is not usually a sufficient trigger and that the children appeared to be imitating observed sexual conduct including having an awareness of sperm or "snot" emerging from a penis, the expert said that sexual harm could have included events "in a friend's home, ... in a school setting with a peer, with a parent, with a...teacher", with the children subsequently being allowed to perpetrate sexual abuse on each other, without adequate intervention, leading to a "cascade effect" and ongoing issues.
It may be that the exposure to parental conflict has contributed to the ongoing behaviours by dysregulating the children more generally, but I accept the expert's opinion that it seems more likely that there has been exposure to sexual harm.
It is not possible to say with any certainty what the initial trigger for the sexualised behaviours was. For example, the expert raised a peer at school, and while the parents both say the children could not have accessed pornography on internet connected devices in their homes, the daily evidence in this court that even very young children are given internet connected devices to take to school for "safety reasons", and are then using these devices to view and share pornography, without any of them necessarily understanding what they are viewing, has reached the point where I consider the possibility any child may have been exposed to unregulated pornography at school by another child, including in primary school, is now a matter of common knowledge.[368]
It is possible that whatever the initial exposure it related to one child and then spread to the other children through the reinforcing "cascade" of sibling sexual abuse identified by the expert.
Further, an analysis of the observations of independent observers tends to suggest the children appeared to find their behaviours funny and further appeared to revel in the adult responses to their naughty behaviours, which without firm discipline appears to have led to more, rather than less, sexualised behaviours.
The inability to make a clear finding does not relieve me of the obligation to act cautiously in respect of the children's safety with the father.
I find that it is likely that the children interpreted their mother's repeated and vigorous questioning about sexual harm at the father's hands, and her reassurances when they made disclosures, as a sign that to please her they needed to make disclosures of sexual harm in relation to the father.
I am satisfied that this is the best available explanation for all of the voluminous evidence on this topic. I find that also explains the disclosures to DCJ and others. The fact that the mother may have stopped interrogating the children to obtain disclosures prior to the later disclosures does not reduce the learned behaviour. If, as I consider likely, the children had learned that when being questioned about the father the best response would be obtained by alleging sexual conduct, then absent some reason to "unlearn" this behaviour, there was no reason for it not to continue with, for example, DCJ who I find also led the disclosure.
Having reviewed the evidence, and done the best I can to understand what may have happened, and giving weight to the absence of evidence of sexualised behaviour or abuse by the father during the intact relationship, the lack of credible non-led disclosures about the father, and the likelihood that the mother pressured the children into making detailed disclosures through leading, so that the later and ongoing disclosures to others were merely repetitions of the earlier disclosures the children had learned pleased the mother, I have come to a state of satisfaction that the evidence does not establish that the father poses a relevant risk of sexual harm to the children.
The mother's initial inability to apply the simple measures recommended, such as requiring the children to bath separately, while at the same time complaining they were sexually interfering with each other in the bath, also raised concerns with her evidence and parenting capacity.
However, the fact that after the first part of the hearing the behaviours apparently ceased suggests that these behavioural issues have finally been largely addressed.
The father ultimately did not submit, as he had earlier in the proceedings, that the mother fabricated the allegations of sexualised behaviour, nor that she maliciously attributed these behaviours to his sexual abuse of the children. Where no submission was made to that effect by any party, I do not consider that possibility.
Instead, the father submits that the mother holds a fixed belief that he poses a risk of sexual harm to the children, and while the mother denies the view is fixed, she maintains her submission for a finding to the effect that the father poses a risk of sexual harm.
On balance, while the mother maintains her case of unacceptable sexual risk, I am not satisfied that she holds a fixed belief that the father sexually abused the children.
Further, and more significantly, I find that as the mother is aware that if she continues these behaviours and continues to question the children or otherwise convey to the children that the father is a sexual or other risk contrary to the injunctions I make the result will be their removal from her primary care and probably a recognition time only order for their time with her. I am satisfied the mother will be able to comply with the injunctions not to discuss that belief with, nor convey it to the children.
Each parent has an entrenched highly negative view of the other parent. Each parent has involved the children in the parental dispute through leading questioning and conveying their negative views to the children, and each has acted in a way designed to alienate the children from the other parent, and in doing so each parent has recklessly inflicted significant psychological and emotional harm on the children.
As between the two parents, were I to accept the expert's opinion, on balance, I would order the children to live with the father and to have recognition time with the mother.
While both parents have significant parenting deficits, and there are real concerns about the father's attunement with the children's emotional needs, I find that in the circumstances proposed by the expert the mother is likely to continue to denigrate the father and cause the children ongoing psychological harm whereas the father is not. His general parenting ability though untested, is, I find "good enough" and his employment flexible enough, that he could be the primary carer.
However, the significant risks associated with the father's identified parenting deficits and untested capacity, together with the clear trauma the children would suffer from a change of primary residence at this stage in their lives, weigh strongly against that decision.
Accordingly, while it would be easy to effectively defer to the expert, and to pick one parent who I find would be the father, and make a recognition time only order for the mother, my obligation is to make a decision I consider to be in the best interests of the children and I am not satisfied that weighing all of the competing risks as best I can that that would be the order in their best interests.
Having considered the relevant statutory considerations, which I deal with elsewhere, I find that the least worst outcome, being the one which promotes the children's best interests overall, is that proposed by the ICL, which involves sharing the risks across both parent's households with the involvement of each parent counterbalancing the risks in the other household, with appropriate injunctions to try and reduce these risks.
As noted elsewhere, while in an ideal world the parents would now focus on the children's best interests rather than their own needs, I make this finding assuming that the parents will both continue to focus primarily on their own needs and that the children will continue to suffer significant ongoing psychological trauma as a consequence of the parents' mutual inability to prioritise their children's emotional needs over their own.
In this context, where I consider the children's best interests are served by sharing the risks between two households, and that their interests are best served by remaining in Australia, to avoid the trauma of an international relocation and substantial separation from the father which would result, and where the mother's position was that in the event of that finding she would remain in Australia and seek primary residence, I do not address the issues of the mother's rights to freedom of movement further. I note that it was conceded that this was not a case in which the father could migrate to Country J.
Given the mother's position that if there is a finding that the children should not relocate she would remain in Australia, and the evidence that her parenting capacity in relation to medical and educational and similar matters is superior to the father's, and given the children and in particular Z have always known the mother as their primary carer, though it may appear counter-intuitive noting that I would place the children with the father if there were to be only one parent involved, I accept the ICL's submission and find that in the circumstances of the children spending time with both parents, it is the children's best interests to live with the mother and to spend time with the father as proposed by the ICL.

[213]

The paramount consideration is the children's best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC, as in force at the date of hearing.
The two primary considerations are firstly the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents.
There is no way to protect these children from psychological harm in either household. The orders I make will expose them to that harm and to the harm that will come from the likely ongoing conflict between the parents.
I find, however, that the harm of exposure to each household and of the ongoing conflict will be less than the harm that would be suffered from the effective termination of either parental relationship, in particular it is less than the psychological harm that would be suffered from the termination of the maternal relationship, which is the relationship that I would consider should be terminated if I was to terminate one or other of the parental relationships.
I am satisfied that the order I make will allow the children to have a meaningful relationship with both parents, which will ameliorate to some extent the psychological trauma they will suffer in each household.
The children's views, to the extent they have expressed them, are highly influenced by the mother. To the extent they support the mother's international relocation or express concerns with the father they are no more than the expression of the mother's views. Given the complex issues, the children's ages, and their medical needs which impact on their capacity to understand the issues in these proceedings, and given the risk issues identified, no weight is given to their views.
The nature of the relationship of the children with each parent, and with the maternal grandparents which I accept is good but has been and can be maintained by video, is considered elsewhere. Despite the conflict the children appear to have a sufficiently good relationship with each parent, when with them, for the children to maintain a meaningful relationship with each parent going forward. Despite the process of alignment that includes X.
I find that each parent has taken the opportunity to participate in making decisions about major long-term issues, and to spend time with each and communicate with each child, within the constraints of the dispute and court orders.
I find that the mother has fulfilled her obligations to maintain the children and that while the father has met his child support obligations, he has avoided contributing financially to the extent he could have, and this is another factor which favours the children living primarily with the mother.
There are likely to be limited changes in the children's circumstances arising from these orders, and there will be no separation from either parent or relevantly from the maternal grandparents.
There is no real practical difficulty and expense in the children spending time with and communicating with either parent on the orders I make.
I have considered elsewhere the relatively limited capacity of each parent to provide for the children's emotional needs, but between them they can meet their basic physical and educational needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children, including their medical and health needs, and the relevant characteristics of each parent are considered elsewhere.
The children are not Aboriginal nor Torres Strait Islander children. The parents are able to engage with their respective cultural heritages, subject to the international travel issue
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of parties, and in particular their lack of child focus, is discussed elsewhere.
The family violence allegations and issues are discussed elsewhere.
There is a good chance that the parties' inability to prioritise the children's needs over their own will lead to further litigation, so that these orders are not the least likely to lead to the institution of further proceedings. However, for the reasons discussed elsewhere, I consider these orders in the children's best interests even though a recognition time order for the children's time with the mother would be less likely to result in further proceedings.

[214]

In circumstances where I have not made any specific findings of family violence, and I do not consider the one found event in relation to the father's threats to the maternal grandmother sufficient to rebut the presumption, I find presumption of equal shared parental responsibility has not been rebutted.
The expert did not consider the parties could co-parent, and indeed recommended recognition time only.
In cross-examination the father accepted the parenting relationship was deplorable, but said he was hopeful communication would be better once final orders were made.[369] He accepted it was difficult to see how the parties would ever be able to communicate and make decisions.[370]
I find that there is no prospect that these parents could effectively co-parent. I accept the expert's opinion that requiring them to attempt to do so is likely to continue, and possibly add to, the conflict between them. This will make timely and child focussed decision making difficult. That would not be in the interests of the children.
Where the children are to live primarily with the mother, and where she has demonstrated superior parenting skills in relation to the children's health needs in particular, I find that it is in the children's best interests for there not to be equal shared parental responsibility. I accept the ICL's submissions and find that the mother should exercise sole parental responsibility.
While the parents cannot share parental responsibility, I accept the ICL's submission that, given the lengths to which the mother has gone to exclude the father from the children's lives, it is in the children's best interests to maintain the father's involvement in decision making.
I find that the ICL's proposed notification process is an appropriate way to balance involving the father in decision making, without creating a circumstance in which important decisions are not made in a timely manner or require repeated returns to court on interim issues.
There is not to be equal shared parental responsibility. The time would not, if it were relevant, be substantial and significant time. However, I find that regular weekend time during school term and during school holidays will be sufficient to allow the children to maintain a meaningful relationship with the father. Time during the school week, which requires co-parenting, is not a realistic option.
The parents live in the same town and the orders made by me are reasonably practicable.

[215]

For the reasons set out I am comfortably satisfied that it is in the best interests of the children to make orders largely in line with those proposed by the ICL, as set out elsewhere.
In summary that is an order for the mother to have sole parental responsibility with an obligation to consult, for the children to live with the mother and spend time with the father alternate weekends and half school holidays and with provision for special occasions, specifying changeovers at school or outside each parents house, orders for communication when in the other parents care during the week and at reasonable times, for access to information, around medication, attendance at school functions, and for restraints to try to address the identified issues.
The one area where I will substantially depart from the ICL's proposal is in relation to travel outside the Commonwealth of Australia. The ICL has proposed a general right to travel, which would benefit the children in relation to their ability to engage with their parents' respective homelands and in particular to travel to Country J to maintain their connection with their maternal family. However, the risks of the mother not returning remains an issue, despite Country J being a Hague Convention country and the likelihood that if she did not return the Central Authority would eventually return the children who would then probably have their primary residence changed.
Rather than make the order precisely as proposed, I will make the proposed travel order for each parent's international travel with the children conditional that the other parent agreeing in writing. I consider this an unfortunate necessity. If the parties co-parenting relationship improves then they will be able to facilitate the children's international travel.
I note what I have said about elsewhere about the ICL's costs, particularly in the context of the significant adverse credit findings I make about both parties. However, if the parties do not agree to pay the ICL's costs, or if there is any other costs application, an application may be filed for determination by me pursuant to the Rules.

Golly & Wolberink (No 3) [2025] FedCFamC1F 561 (20 August 2025)

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