ABEBE & ABEBE

FAMILY COURT OF AUSTRALIA

ABEBE & ABEBE

[2015] FamCA 327

FAMILY LAW – CHILDREN – Best interests – Magellan list – Parental responsibility – With whom a child lives – With whom a child spends time – Where there is one child of the marriage – Where the child has made disclosures about the father – Where the father denies any sexual abuse – Where the single expert opined that if it is accepted that there is an unacceptable risk, that the chid should not spend any time with the father – Where no finding was sought in relation to whether the father sexually abused the child – Where it was found that the child would face an unacceptable risk in the care of the father – Orders made for the mother to have sole parental responsibility and for the child to live with her – Orders made for the child to spend no time with the father.

Family Law Act 1975 (Cth) s 60CC, s 61DA, s 65DAC

M v M [1988] HCA 68; (1988) 12 FamLR 606

APPLICANT:

Mr Abebe

RESPONDENT:

Ms Abebe

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

SYC

5103

2009

DATE DELIVERED:

8 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3-7 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

E H Tebbutt & Sons

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Doolan Callaghan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gutterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

That the mother Ms Abebe is to have sole parental responsibility for the child Z Abebe (“the child”) born … 2010.
That the child is to live with her mother.
That the child is to spend no time with her father Mr Abebe.
That the mother shall provide to the father, within 14 days of receiving them, copies of all school reports and school photographs of the child.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abebe & Abebe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5103 of 2009

Mr Abebe

Applicant

And

Ms Abebe

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

These are parenting proceedings concerning Z Abebe (“Z”) who was born in 2010.
On 31 October 2013 the child told her mother, Ms Abebe (“the mother”), that “Daddy put his penis on me… just on my leg, that’s … bagina”. And that “His penis gets bigger when he hurts me” (Affidavit of the mother affirmed 10 October 2014 at [81]).
Since that time the mother asserts that the child has made further disclosures of instances where her father, Mr Abebe (“the father”), has behaved inappropriately. The mother also asserts that there has been a number of behavioural changes in the child.
In those circumstances the mother seeks orders that she have sole parental responsibility for the child, that the child live with her and not spend time with the father because there would be an unacceptable risk to the child if she was in her father’s care.
The father denies that he has ever behaved inappropriately towards the child. Whilst he admits, as he must because they were recorded by the mother, that the child spoke the words just described, he denies they refer to any acts of his. He raises, as a possibility, that the mother or the mother’s eldest child of a previous relationship, may have coached or led the child into saying these things about him or that another person has abused the child.
The father seeks an order that there be equal shared parental responsibility, that the child live with the mother and that the child spend time with him commencing with a short period of supervised time leading, over a couple of years to overnight time at weekends and on holidays.
The significant issue in the proceedings concerned these allegations and whether the court could be satisfied that the father had indeed sexually assaulted the child or that there was an unacceptable risk of such assault if the child was to spend time with her father. The central feature in this case is the disclosure made by the child on 31 October 2013. It will then be necessary to consider the disclosure itself and what flows from it before turning to the mother’s diary, its reliability, the events recorded in it and their effect. This is because the Independent Children’s Lawyer (“ICL”) and the father submitted that these cast sufficient doubt on the disclosure made by the child so it did not indicate any unacceptable risk of harm to her.

background

The mother was born in 1973 and is 41 years old. She married Mr P with whom she had three children – S born in 2002, M born in 2004 and K born in 2005.
The mother and Mr P separated in December 2005 and the three children lived with their mother. The children have not seen Mr P for some eight years or so.
The father was born in 1971 in the United States.
In November 1998 the father left his parents upon a declaration being made by a Los Angeles Court that he was an emancipated minor.
In July 1999 the father changed his name to Abebe so as more accurately to reflect his African-American heritage.
In February 2002 the father arrived in Australia and later that year entered into a de facto relationship with Ms N. They married in 2003 and separated in 2007. Meanwhile, in October 2006, the father became an Australian citizen.
The mother and the father met in January 2009 and married in mid 2009.
On 25 August 2009 the father and mother filed an initiating application in the Family Court of Australia seeking that the mother and the father have joint parental responsibility for the mother’s children and that they be authorised to apply to the Registry of Births, Deaths and Marriages to change the children’s surnames to Abebe. Those orders were made by the court on 24 November 2009 and the change of name took place.
The child Z was born in 2010.
Having been made redundant, the father ceased working in his Sydney job in June 2011. Shortly thereafter he obtained a job in Melbourne and from July 2011 to October 2011 lived in Melbourne returning to visit the family every second or third weekend.
The parties separated on 16 October 2011.
Following the father’s return to Sydney in November 2011 the father started spending time with all of the children from 2.00 pm to dinner time at the mother’s home once a week.
From December 2011 to April 2012 the father continued to see the children once a week between 2.00 pm and dinner time and on the weekends from 1.00 pm until 8.30 pm. From that time the father saw only Z and the other three children did not spend any time with him at all.
On 31 December 2011 the father met Ms A. He moved into her home in June 2012. They married in 2014.
On 15 June 2012 the mother filed an Initiating Application in the Family Court of Australia seeking sole parental responsibility for the children S, M and K and that they live with her. Those orders were made by the court on 13 July 2012 discharging the orders made on 24 November 2009.
From July 2012 until August 2012 the child Z spent time with the father from 9.00 am until 2.00 pm each Saturday and from August 2012 until March 2013 from 9.30 am until 3.00 pm each Saturday.
On 9 November 2012 the father filed an application seeking parenting orders for there to be equal shared parental responsibility for Z and that Z live with the mother and spend time with the father.
On 3 December 2012 the parties entered into consent orders providing for equal shared parental responsibility for Z, that Z live with the mother and spend time with her father each Saturday for six hours and each Thursday for three hours.
In March 2013, pursuant to proceedings initiated by the father in the Federal Circuit Court consent orders were made for Z to spend time with her father from 9.00 am until 5.00 pm Saturday. Those orders were complied with up to 2 November 2013, although frequently the mother permitted the child to spend additional time with her father.
The father and mother divorced on 8 June 2013.
As has been seen for a number of years the father had, pursuant to orders of this court, equal shared parental responsibility with the mother for S, M and K. After the separation and after the father’s return from Melbourne all of the children spent time with him. In April 2012 the father made a decision to see Z only. There was a suggestion by him that the other children could spend time with him, from time to time, and not all at once. The mother claims that she wished him to spend time with the other children as well but the father did not. The father said that this was because the mother did not let them go. He said that she insisted that all the children spend time with him or that none did. This is not the most likely explanation given for the reason that follows.
The father’s explanation given in court was that he was their stepfather by reason of his marriage to the mother and when that relationship ended so too did his relationship to the children as stepfather. This is confirmed by what is recorded of him telling the Joint Investigative Response Team on 6 November 2013:
[The father] did obtain parental responsibility for [the mother’s] other children but he never felt that he took on the role as father as [the mother] would not permit him to discipline or parent the children. She preferred him to be the “fun guy”. Hence when the marriage ended (Sep’11) he felt that they weren’t together for long enough for him to have legitimate grounds on which to retain parental responsibility.
(Exhibit 3, Meeting Record, 6 November 2013)
Thus it was that the father commenced to have Z spend time with him but none of the other children. They did not take this at all well.
The mother took the children to see a counsellor at the B Child and Family Counselling Service. The child S, in particular, was deeply affected and saw the counsellor until well into 2013.
On 22 October 2012 the counsellor contacted the father. Her notes record that the father said to her that he did not know how important he was to K, M and S and was surprised by the feedback as to how hurt they were. He said that he would not be able to attend a repair session with the counsellor (and, presumably the children), but he was prepared to write repair letters with the assistance of the counsellor.
That occurred and in January 2013 letters for each of the children, M, K and S, were given to the mother.
The mother said that on 11 January 2013 she discussed the letters separately with each of the three children. None of them wished to read the letters even after it was explained to them that they were letters of apology, that the father was saying to them that their not seeing him was not their fault and he was sorry for their feelings.
There was some criticism of the mother’s evidence, it being suggested that she did not show the letters to the children. There is, however, no basis for not accepting her evidence on this issue. She sent a detailed letter explaining these events to the counsellor on the same day.
The child S wished to do more. He wrote a letter to the father. He wished to express his feelings.
The letter was typed by the mother but she said that she had no input into the content, simply encouraged S to say what he felt and she typed what he said. The letter included:
You made me feel like you were my real Dad, you changed my name so we could all be a family together. Even after you and Mum broke up and you moved away you still promised me in a pinky promise that you would still be my dad and come and spend time with me. I trusted you, I loved you and I believed you. Then you decided only to see [Z] and only be [Z’s] dad. Mum said it’s because you didn’t help to make me, but you promised me and made me feel like you were my Dad. That didn’t matter in the beginning so I can’t understand why that matters now.
…
You made me feel like I have nothing inside of me I hate you for what you did to me and to us, you made us all cry and hurt. I feel like everything you said was a lie, I don’t feel like I know you anymore. I don’t trust you. I’m really really scared that I will do what you did one day, I don’t want to be a son of bitch when I grow up. I hate my name now, I wish I never changed it, I wish you would change your name so none of us have the same name anymore.
(Exhibit NLA 15, affidavit of the mother affirmed 10 October 2014)
The letter was accurately described as a hate letter. The children M, K and especially S have a very poor view of the father and are very upset at their perception of how he has treated them. Given the steps the father took to obtain equal shared parental responsibility for them, there is force in their position. Of course, the effect of this behaviour on her children greatly upset the mother and gave rise to concerns about the parenting ability of the father. In her own words, she did not trust him.

31 October 2013

On 31 October 2013 the mother was to meet the father at the Big Bear car park at Neutral Bay so as to enable the child Z to commence her regular Thursday visit with the father. The mother said that as she pulled into the car park the child said “Mummy, Daddy hurts my bagina when he sits me on his lap”.
The mother then said to the child “What did you say?” and the child repeated the comment. The mother then asked “How does he hurt you?” and the child replied “He hurts me with his penis”.
The mother then grabbed her mobile phone and recorded the following conversation between herself and the child as set out in the mother’s affidavit affirmed 10 October 2014 at [81]:
Me:     “…what he said again?”
[Z]:     “Daddy put his penis on me…just on my leg, that’s …(then inaudible) bagina”
Me:     “When hon?”
[Z]:     “On Tuesday”
Me:     “Hmm you don’t know what the day is” (meaning she doesn’t know her days of the week, just what they are called)
Me:     “What did he do?”
[Z]:     “On Thursday he hurt me”
Me:     “Tell Mummy how?”
[Z]:     “I don’t know”
Me:     (shaken) “what did, what hurt?”
[Z]:     “My bagina”
Me:     “Why?”
[Z]:     “Because he always does that”
The car starts beeping as I had not turned the ignition off properly when I pulled over, you can hear me pull the keys out.
Me:     “What does he always do sweetheart?” again, “what does he always do?”
[Z]:     “I really don’t know”
Me:     “What does he always do? Why does it hurt?”
[Z]:     “I want to hop out” (still buckled in her car seat)
Me:     “Can you tell me why it hurts?” “how does it get hurt?”
[Z]:     “Could you hop me out first?”
Me:     “Sure, can you tell me how it gets hurt?”
[Z]:     “When I just get …(inaudible)”
Me:     “Can you tell me how it gets hurt”
[Z]:     “Just wait” “um how it gets hurt, he be, um his penis gets bigger when he hurts me”
Me:     silent pause (in disbelief) “Really?”
[Z]:     “Myeh”
Me:     “Wh, When does that happen? Is is [Ms A] there when that happens?” shaken
[Z]:     “Nyeh”
Me:     “Or is it just Daddy and you”
[As per original]
The above transcript of the phone recording was prepared by the Joint Investigative Response Team (“JIRT”) and was used by the mother to prepare her affidavit (the interpolations in brackets were added by the mother, not by JIRT). The mother said in her oral evidence that the words “Myeh” and “Nyeh” are in fact the same word and mean the same things notwithstanding for instance spelling by the Joint Investigative Response Team. She did not, however, say what they did mean.
At this time, the mother said, she turned the recording off because she was concerned that she might be potentially suggesting things to the child and did not want to do that.
The father has listened to the recording. He accepts that it is a recording of the child.
By the time the recording had finished the child and her mother were outside the car and walking towards the lift to meet the father. The mother said at this time she was shaken and felt sick and stressed about having to hand the child over to the father but was prepared to do so bearing in mind that the father was a lawyer, that she was fearful of being in trouble with the law if she did not let the child spend time with the father and because she did not really know what to do until she could get advice. She decided to hand the child over to the father but do what she could to protect her.
The mother was criticised for doing so. It was submitted that if the child had really made these disclosures without any assistance from the mother she would not willingly have placed the child in her father’s care. It was submitted that she would have contacted the police, her lawyers, friends and not handed the child over. The mother says that she panicked, did not know what to do and with the benefit of time to reflect, said that she regretted doing so. Her position is an understandable one, having just been placed in the position that she found herself. The criticism by the father and the ICL is not accepted.
The mother said she told the child on the way to the lift:
No one is allowed to touch your vagina, only [Z] and if someone tries to touch you or hurt you, even Daddy, you say “stop it. I don’t like it” and put your hands up.
(Affidavit of the mother affirmed 10 October 2014 at [82])
The child repeated that and said “I will say that to Daddy”. The mother then said that she said to the child “You are a good girl for telling Mummy. Daddy is not allowed to hurt you, do you want me to talk to Daddy?”.
The child replied “Yes, tell him to don’t hurt me” (Affidavit of the mother affirmed 10 October 2014 at [82]).
What then occurred was described by the mother in her affidavit affirmed 10 October 2014 at [83] thus:
I went up in the lift still shaking and I confronted [the father] who was waiting for me. I said words to [the father] to the effect:
“[Father’s first name], the reason we are late is [the child] just told me you hurt her vagina when she sits on your lap”.
[The father] stared at me. His face was expressionless – he did not do so much as frown or raise an eyebrow. He just stood there where he was and then replied in a very calm voice as follows:
“Oh yeah, she mentioned something about that last time. All I can think is her undies are rubbing on her vagina while she is on my lap”.
I said to him:
“What? Well she said it was your penis not her undies. She never complains with me or anyone else. What am I supposed to think? What am I supposed to do?”
[The father] appeared to show no emotion and replied to me:
“Well I would never hurt her [mother’s first name]. She is my daughter”.
In her affidavit affirmed 10 October 2014 the mother said that the following occurred when she collected the child later that day at [86] – [87]:
[The child was returned to me at 6.00 pm. She ran up to me arms wide open to hug. [The father] said to me:
“[Mother’s first name], about that you said earlier, I’ve spoken to [the child] and questioned her. I’m pretty sure it’s just her undies going up her bum and rubbing her vagina”.
I said to [the father] that that is not what [the child] had said and he replied:
“Well you were very accusatory.”
I said:
“What am I supposed to do?”
He replied:
“Well there is a difference between asking and accusing.”
I said:
“I would be a terrible mother if I didn’t ask, I just told you what she said to me.”
I observed [the father] to look very angry and he said:
“Well I didn’t like being accused ……. There are huge things that can happen”.
I said:
“I know how huge the implications are and I don’t want to talk about this here”.
It was Halloween and there were trick or treating kids everywhere so I walked away. [The child] remained buried into my neck and didn’t say good bye to [the father].
In the bath that evening, I asked [the child] whether she went trick or treating with Daddy. It was a tradition I knew from previous conversations with him that was important to him. [The child] said words to the effect:
“No he didn’t take me trick or treating and I have to tell you my undies went up my bottom at Daddy’s”.
[The child] emphasised the word “have”.
I asked [the child]:
“Why?”
[The child] replied:
“Daddy said”.

Thus the father’s explanation, as given to the mother, was that the child’s complaint was caused by her “undies going up her bum”.
In his affidavit affirmed 10 October 2014 the father’s version of the above conversation was as follows at [52]:
With no previous warning or indication of such things, when [the mother] delivered [the child] to me on 31 October 2013, [the mother] said to me in a stern voice, words to the following effect:-
[The mother]: “We were late because I was in the car. [The child] said “Daddy hurts me when I sit on his lap”. I am shaking. What the hell, [father’s first name]?!”
Me:“What do you mean what the hell?” What are you accusing me of? I haven’t done anything to her. She’s my daughter, I would never hurt her”.
[The mother]: “Why would she say this?”
Me:“I have no idea. I know that sometimes when she sits on my lap her underwear goes up her bottom, which she has complained of before, but I certainly haven’t done anything to hurt [the child]”.
[The mother]: “Have you and [Ms A] had the baby yet?”
Me:“No, not yet. We are going to the Hospital tomorrow so she can be induced”.
I was shocked and surprised at the horrific things [the mother] was putting to me, quite loudly and in front of [the child]. I thought to myself [the mother] must be making this up. I am usually a very calm and composed person by nature, I was also very conscious that [the child] was standing right next to me when [the mother] dropped her off to me earlier that afternoon and I did not want [the child] to see me upset or angry, especially with her mother. This is why I did not react as emotionally as perhaps [the mother] expected me to.
The father is quite clear that he then questioned the child about the complaint made by her mother. He said at [55] of his affidavit affirmed 10 October 2014:
When [the child] was at my house earlier that afternoon, I had a conversation with [the child] in front of [Ms A] to the following effect:
Me:“Did you tell mummy that your bottom hurts when you sit on my lap?”
[Z]:               “Yes”.
Me:               “I’m very sorry to hear that. Why do you think that is?”
[Z]:               “I don’t know”.
Me:“Do you think it might be because your undies go up your bottom?”
[Z]:               “Yes”.
I have never told [the child] to say anything to [the mother] regarding her underwear or any words similar to that effect.
Whilst I accept that this is the father’s recollection of the conversation some considerable time after the event, unaided by notes or contemporaneous diary entries, nonetheless it is noteworthy that, on the father’s version, the mother does not say how the child complained of being hurt - she merely asserts that she was. The father does not ask how the child was hurt or what the complaint was but immediately advances the explanation about her underwear going up her bottom and then moves immediately to a conversation about his wife’s impending birth. When asked why not, the father did not give a convincing explanation.
HIS HONOUR         Could you turn to paragraph 52 please.
HIS HONOUR          Now that’s your version of the complaint that [the mother] made to you isn’t it?
Yes your Honour.
HIS HONOUR         And the complaint was that [the child] said Daddy hurts me when I sit on his lap. And you then didn’t ask, did you, in what way you had hurt her, did you, in what way you were have said to have hurt her.
I don’t recall no your Honour.
HIS HONOUR         And then you offer that her underwear might go up her bottom, how did you make the link between the allegation that daddy hurt me when he sits on her lap and [the child’s] genitals:
I suppose your Honour the.. my initial reaction without trying to think logically about it was well I am aware that [the child] has said that before in terms of her underwear hurting her so when she’s saying that she’s sitting that, when [the mother’s] saying that she’s hurt when sitting on my lap that’s just the link that merely came into my mind.
HIS HONOUR         But you see you have hurt her when she was sitting on your shoulders by holding onto her legs too tightly haven’t you?
Yes your Honour.
HIS HONOUR         And that’s not sexual at all is it?
No your Honour.
HIS HONOUR         So why, what I don’t understand is when the allegation is simply that you hurt her why you made the link immediately to something in relation to her genitals or of a sexual nature?
I guess because of the location your Honour. She is sitting on my lap that’s just the first thought that popped into my head. I didn’t…
HIS HONOUR         What concerns me Mr [Abebe] is that you might have already known what the complaint was:
No your Honour definitely not, I had no idea, absolutely had no idea…
HIS HONOUR         And when you, if you look at paragraph 55 when you raise it with [the child] you ask did mummy tell me that your bottom hurts when you sit on my lap, now [the mother] hadn’t made a complaint to you of [the child’s] bottom hurting had she?
I don’t recall your Honour if that’s..
HIS HONOUR         Why did you ask [the child] that then?
I suppose your Honour I made the link if.. if... if [the mother] was saying that [the child] was hurt when she was sitting on my lap I guess my initial inference is well if she is sitting on my lap she is sitting with her bottom on my lap and that’s why I would have asked the question. But I certainly had no idea of these allegations or claims before…
HIS HONOUR          Again what concerns me is that you were asking that because you were anticipating a question about that area.
Well I was asking it again because of the location where somebody sits on your lap
HIS HONOUR         But when she was sitting on your shoulders you hurt her on the legs, I don’t understand the necessary link Mr [Abebe].
Well if she’s on my shoulders if she said that if [the mother] was to tell me that [the child] says that I hurt her when she’s on my shoulders, my initial reaction is going to be oh ok well I must be hurting her on her thighs because that’s the location where I am holding her. I would not think that I am hurting her on her bottom if she is on my thighs, if she is on my shoulders.
HIS HONOUR         Alright, do you wish to ask anything about that Ms Messner or Mr Guterres? No thank you
MS GILLIES Your Honour could I have 5 minutes before re-examination please?
HIS HONOUR         Yes.
(Transcript of proceedings, 4 November 2014)
This clearly raises the concern, as was directly put to the father, that he did not ask how the child had been hurt because he already knew.
The response to this by the ICL and the father is to submit that the mother’s version should be preferred as it was supported by a contemporaneous note. Thus, the above concern would not arise. However, as the above transcript makes clear that was never the position of the father.
If the father’s version is accepted not only does the above issue arise but his version confirms that it was his view that the problem, if any, was caused by the child’s underwear. This is consistent with what the child told her mother about the father asking her to repeat this cause. This leads to the conclusion, on that evidence, that the father clearly discussed the issue with the child and asked her to relay to the mother the cause of the disclosure being the child’s underwear.
On his version, the father’s reaction to what he is told is unusual. After being told that he had hurt the child he proffers the suggestion that the problem could be caused by the child’s underpants. The mother then immediately moves to the topic of the impending birth as if what had occurred so far in the conversation was not of greater moment.
It is more likely than not that the mother raised the full nature what she had been told by the child with the father. That is consistent with what she is recorded saying to the child. Taking these two matters into account the mother’s version is the more likely and it is accepted.
It is to be noted that it is the father and not the child who puts the proposition that she might be hurt because her undies went up her bottom.
Leaving aside the issue of whether the father told the child that she had to tell her mother that, it is more likely than not that the child told her mother that because that thought had been implanted by the father.
It was submitted by the ICL and the father that this disclosure by the child should be seen in the light of earlier and subsequent events and that, seen in that light, it was not likely to be a disclosure of improper conduct by the father. I shall therefore return to the evaluation of this evidence after completing the history of the matter and after dealing with the mother’s diary. It was this diary that was the focus of much attention by the ICL and the father.
The mother then, after having played the recording to her sister, rang the Family and Community Services Helpline and the following day, and on Friday 1 November 2013, went to Y Police Station. Shortly after the mother received a phone call from a worker with the Joint Investigative Response Team asking her to take the child to C Police Station for an interview.
The Joint Investigative Response Team interviewed the child on 1 November 2013. It was recorded that the child had provided some answers consistent with the complaint but in such a way that her answers were at times confusing and contradictory. The results of the interview were summarised thus:
The details of [the child’s] disclosure that was captured on the recording is concerning, however it remains unclear what has caused her to make such a disclosure. Similarly, [the child] provided contradictory information when interviewed.
(Exhibit 3, Debriefing Meeting Form, 13 November 2014)
On 2 November 2013 the mother said that the child awoke having a nightmare saying “There are monsters in my room. They are pulling my undies down. They are biting my legs. Make it stop” (Affidavit of the mother affirmed 10 October 2014 at [94]).
It is necessary to record that it was the mother’s evidence that the child has not been a good sleeper and never used to sleep throughout the night.
On 3 November 2013 as the mother was reading the child some bedtime stories she said the following conversation occurred:
96. “Do you and daddy pinky promise things?”
[The child] answered:
“Yes.”
I asked [the child]:
“Can you tell me what you pinky promised Daddy?”
[The child] replied:
“No”.
I said:
“You can tell me anything and you can tell the Police anything”.
[The child] asked me:
“Can I tell you the bad words?”
I said:
“Sure”.
[The child] said:
“Daddy says fucking hell”.
I said:
“OK, why does he say that?”
[The child]:
“Daddy says fucking hell when he puts his finger up my bottom”.
I was shocked and said:
“He what?”
[The child] said again:
“When he puts his finger up my bottom”.
I then asked:
“Does he do anything else?”
[The child] said:
“Yes, he pees on me and I’m naked”.
I was shocked. I said to [the child]:
“He pees on you? Are you sure?”
97.I observed [the child] get all shy and she wriggled and tried to hide by putting her pillow over her head. She started getting fidgety and acting very strangely. I had not seen her behave like this before. She said words to the effect:
“and he pees on [X]and [Q], and ……. [“…”]”
and then she did a short laugh. I believe that she was trying to make it sound like a joke.
98.I said:
“What happens when daddy puts his finger in your bottom?”
[The child] said:
“It hurts”.
I hugged her tightly and said:
“Mummy won’t hurt you. I love you and you are a good girl for telling me”.
(Affidavit of the mother affirmed 10 October 2014 at [96] – [98])
X and Q are the father’s dogs. “…” is a reference to Ms A. The allegation is thus quite extraordinary, whether the allegation refers to urination or ejaculation.
The mother made another report to the child protection helpline and on 4 November 2013 the child underwent a second Joint Investigative Response Team interview.
The second Joint Investigative Response Team interview did not take things any further. For example the following appeared:
[Ms I]:You said that Daddy hurt your vagina. You said that to Mummy there. Can you tell me more about Daddy hurting your vagina.
[Z]:I really don’t know if he does that.
[Ms I]:You don’t know if he does that.
[Z]:No.
[Ms I]:So who told you that he does that?
[Z]:He always does that.
[Ms I]:Ok you said that you really don’t know if he does that but you said he always does that so does he always do that, or ?
[Z]:No.
[Ms I]:Ok. When’s the last time Daddy hurt your vagina?
[Z]:Look next [inaudible]
[Ms I]:I don’t know what you said sorry. What does it feel like when Daddy hurt your vagina? What could you feel.
[Z]:Nothing.
[Ms I]:Nothing.
[Z]:Every [inaudible] I need to do it. I really need to do it. Cause Daddy always does that.
[Ms I]:Oh Daddy does what?
[Z]:Always put his finger up me.
[Ms I]:Put his finger up you.
[Z]:Yeah
[Ms I]:Where?
[Z]:Here (smiles and points to vagina). I don’t know why Daddy does that am I swapping colours?
[Ms I]:That’s ok you keep colouring in. So you pointed to where your Daddy puts his finger what’s that part called?
[Z]:I don’t know about it.
[Ms I]:Is that something you don’t know about or something you don’t want to tell me.
[Z]:Something don’t tell.
[Ms I]:You don’t want me to tell. Ok how come you don’t want to tell me?
[Z]:Because it’s not the truth.
[Ms I]:If its not the truth what is it?
[Z]:I really don’t know (shaking head).
[Ms I]:So who told you to say that Daddy puts his finger in there.
[Z]:Because he always does that.
[Ms I]:But you said it’s not the truth.
[Z]:No. Because Daddy always does that.
[Ms I]:And is it the truth that he does that?
[Z]:When … here she always does about it.
(Exhibit 3, File Note Record, 4 December 2013)
Given the nature of the questions, the answers and the age of the child it is difficult to make anything of either of the Joint Investigative Response Team’s interviews. Although the Joint Investigative Response Team remained concerned about the disclosures it determined that no further action could be taken.
On 6 November 2013 the allegation was raised with the father. The Joint Investigative Response Team recorded his response as:
He said that it is completely fake and that he has never hurt [the child] in any way, physically or verbally. He said “I have never put my penis on her, she has seen my penis”. [The father] said he has gone to toilet in front of [the child] because after he takes her he will tell her that he now has to go also and she has asked to stay. He lets her stay while he pees because he would rather keep an eye on her than have her unsupervised.
(Exhibit 3, Meeting Record, 12 November 2013)
On 15 November 2013 members of the Joint Investigative Response Team spoke to the father and his wife. They recorded the father as saying:
He again said that [the child] has never seen his penis erect nor has his penis ever come into contact with [the child] in any way. [The father] then provided CW with a letter which was written by [the mother’s] son [S] (attached). [The father] pointed out that [S] expresses great hatred for him in the letter. He expressed concern that the letter (which is typed) does not appear to have been written by an 11 year old as the vocabulary, grammar and structure are all quite advanced. [The father] felt that the letter supports his claim that [the mother] does influence if not coach her children.
(File Note Record, 15 November 2013, Exhibit 3)
When spoken to separately, Ms A expressed the view that the child had been coached.
On 9 November 2013, Z was waiting outside a hairdressers with S, Ms D, a friend of the mother and H, her daughter. The child Z said “My dad pees on me. He pees all around the house and on me” (Affidavit of Ms D sworn 9 October 2014 at [12]).
This statement was made out of the blue. It could be the child saying something funny and attention seeking. It could be a three year old attempting to describe something more serious, although that would seem to be an odd occasion for her to do so. On its own it is difficult to make anything of it.
On 14 November 2013 the child had a nightmare which she said was about a man with scary fingers. On 16 November 2013 the child screamed out in her sleep. When the mother went into her room she was sitting bolt upright calling out saying “Mummy stop the ants crawling up my legs”. Later that night she said “Mummy, put long pants on me, stop the ants going up my legs” (Affidavit of the mother affirmed 10 October 2014 at [112]).
On 26 November 2013 the child woke during the night having a bad dream when asked what it was about she said “I can’t tell you” when pressed the next morning the child replied “Someone hurt my vagina”.
Since that time the mother has described the child waking from nightmares frequently, the nightmares according to the mother, have been described by the child as, for example:
·A man with scary fingers
·Mummy stop the ants crawling up my legs
·Someone hurt my bagina
·A scary dream
·Monster with scary fingers and penis
·A shark is in the bed biting me with scary fingers
·I had a bad dream with monsters with scary fingers he was scratching my throat and hurting my bottom. The monsters are making me sad.
·Monster with scary fingers
·I had a nightmare about monsters. They hurt my bagina and bottom.
(Affidavit of the mother affirmed 10 October 2014 at [94], [111], [112], [116], [130], [135], [136], [146] & [150])
On a number of occasions the mother described the child waking from a dream and asking to have cream applied to her vagina or bottom even though on inspection there appeared to be no redness (Affidavit of the mother affirmed 10 October 2014 at [136]).
At this time the mother encouraged the child to start drawing her nightmares and to throw the pictures away in the hope that it would assist her. A number of the child’s drawings of nightmares are before the court. The drawings have comments on them such as “A girl with a bagina and a big smile” and “A scary monster with two eyes two legs and a big yucky penis” (Exhibit NLA 28, affidavit of the mother affirmed 10 October 2014).
I infer that they are the mother’s writing down of the child’s description of the drawings.
The nightmares continued although they took a slightly different course with the child often not telling her mother what the dream was about or describing them as scary. On occasions she described having a sore bum and asked for cream.
On 22 December 2013 after such a dream the mother noticed the child had a few pimple like spots and a rash. She was taken to the doctor the following day and was told that the spots and the rash were nothing irregular.
I will not detail the dreams or the drawings any further. There was no evidence that linked those dreams to any particular behaviour. The Family Consultant said of these dreams:
Children have nightmares for a variety of reasons so you know, I don’t think that I’m in a position to say whether those nightmares were directly related to the fact that she had been abused or not.
(Transcript of proceedings 19 November 2015, page 95 lines 31-39)
For that reason the drawings and dreams cannot be taken to point to or confirm sexual abuse.
The mother kept a diary recording, in the main, events concerning the child Z and her father. She said that this was because she did not trust the father. She started keeping the diary because she had “concerns” about the child. She said: “I wrote down any observations on my daughter that I felt were unusual or unusual from what she would display with me” (Transcript of proceedings, 5 November 2014, page 15 line 40). Thus it was that there is the recording of scratches, grazes, red marks as well as descriptions of the child’s behaviour, particularly at changeovers. Sometimes, the marks and bruising were photographed.

The mother denied that it was an evidence gathering exercise or that she was preparing a dossier on the father. I do not see that it matters very much that it was or not. The issue is whether the entries were accurate. Even if the entries were part of an evidence gathering exercise that does not, of itself, lend unreliability to the entries and the submission of the ICL to that effect is not accepted.
The ICL and the father sought to draw from the keeping of the diary and the nature of the entries in it, criticism of the mother’s parenting duties and her credit worthiness.
The first entry in the diary is 10 March 2012 and says:
[The father] has [S] & [Z] at his house [Z] cried her heart out when I left & reached out for me, sobbing ‘mummy’ I left at 11.30am I collected her & [S] at 1.30 – she was soaking wet & I explained that she needed changing even if she is not soiled.
(Exhibit NLA 2, affidavit of the mother affirmed 10 October 2014)
The next entry is for the 17 March 2012 and states:
[Z] went to [the father] on her own from 11.30am til 2.30pm. She slept on the bus.
(Exhibit NLA 2, affidavit of the mother affirmed 10 October 2014)
At this time the child was spending Saturdays with her father. There seems to be an entry in the diary for every Saturday commenting on the changeover or explaining why it did not take place. Some entries complain about the child having redness on her bottom with references to wet nappies and the father’s failure to apply cream given to him by the mother.
Some entries record the child having a good time with her father.
On 23 November 2012 the entry is: “[Z] told Abuela ‘my daddy has a big penis’ and then said again ‘daddy penis’”. The mother said she was shocked by this and wrote it down but did not then give the statement any sinister connotation. In her cross-examination the mother said that this statement of the child’s was now relevant to the big picture. The Family Consultant did not attach any significance to it as it is the sort of statement that any child might occasionally make.
The diary frequently records the child being reluctant to go to her father, sometimes having being described as having to be peeled off her mother, and happy to see her mother on her return.
On 15 December 2012 the following entry appears;
After bath time on 15/12/12 I was drying [Z] and she said “I got a sore ‘China’ (vagina)” I said oh why is your vagina sore she replied “Daddy poke me” I asked the question “Why is your vagina sore [Z]?” She repeated “Daddy China” I said daddy is not allowed to touch your china only [Z]. Her bottom and vagina looked red (but like her urine had burnt her skin)?! perhaps he is not drying her properly after she does a wee.
(Exhibit NLA 2, affidavit of the mother affirmed 10 October 2014, pages 106 – 107)
From 6 June 2012 the parties maintained a communication book. On 15 December 2012 the mother made the following entry in the communication book:
On Saturday evening [Z] complained she had a sore “China” (vagina), it looked red & sore, as did her bottom. I am thinking that perhaps after she does a wee you may not have dried all the urine off which can burn the skin? Sometimes when she wee’s it runs down the back towards her bum, if possible can you dry her more thoroughly just in case it is from this.
(Exhibit NLA 2, affidavit of the mother affirmed 10 October 2014, pages 106 – 107)
There was no response in the book by the father.
The child has anatomically correct dolls and all the mother’s children, including the child Z, have been taught the correct name for body parts. However, her mother understood, and it is likely, that a reference by Z to her vagina is a reference generally to her genital area.
The ICL and the father were critical of the mother’s conduct in telling the child that her father is not allowed to touch her vagina. They submit that the message that the child would receive from her mother telling her that her father was not allowed to touch her vagina was confusing because her father would need to touch the child’s vagina when drying her. This is, indeed, suggested by the mother in the communication book. Quite clearly, the father is not entitled to poke the child in the vagina though he is entitled to and obliged to dry her properly. They are two separate things. Whether the child, who was then two, would appreciate the difference between the two is an entirely different matter.
The mother agreed that it would have been better had she used different words to the child saying that she should have said “That he’s not allowed to hurt you in your vagina”. (Transcript of proceedings, 5 November 2014, page 35 line 41).
However, given the length of time between this incident and the disclosures made ten months later and the child’s young age, any link between the this event and the disclosure made by the child on 31 October 2013 is not at all obvious.
On 6 April 2013 the mother recorded the father telling her that the child had a sore anus and he had put some cream on it. The mother saw that the child’s bottom and vaginal area were bright red. On at least one occasion, the father applied pawpaw ointment to treat a reddened vaginal area.
The diary continued in much the same vein recording similar matters. There was an entry that the father ignored the child M when she was accidently present at a changeover. There are a number of entries about the father not keeping Z warm enough, Z not getting a proper sleep when with the father or returning her in wet or damp clothes. On a number of times the mother wrote the words “unimpressed” at the end.
It was the ICL’s submission that “The more fundamental problem the diary discloses, however, is the mother’s lack of perspective in objectively assessing [the child’s] behaviour. All perceived negative behaviour is attributed to the father” (Submissions on behalf of ICL filed 19 January 2015 at [21]).
The ICL referred to four entries of the diary as being examples of this they were (Submissions on behalf of ICL filed 19 January 2015, page 3):
·15 June 2013: “[Z] again did not want to go this morning, but seemed ok when [the father] arrived.”
·22 June 2013: “did not want to leave the house today. Was fine when she saw father and ran over to him.”
·9 July 2013: “[Z] again did not want to go as we are celebrating [K’s] 8^th at nanna’s house. I had to wake her up and again she clung on to me. After five minutes she reluctantly went to [the father].”
·3 October 2013: “[Z] was asleep today and needed waking up to go. Was a little grumpy but better once woke up properly. Came running home with arms open”.
The mother was not questioned about these specific entries.
The first two entries do not attribute any negative behaviour to the father. Indeed the child either seemed “okay when the father arrived” or “ran over to him” neither of which is negative. Mere reluctance to go or to leave the house is not uncommon. It can occur when there is no changeover between parents. Statements to that effect do not necessarily indicate the child having a negative attitude towards the father. This is especially so when the entries continue to record that the child was ok when the father arrived or that she ran over to him.
The third entry is easily explained by the child not wanting to miss out on K’s birthday. This is unsurprising and hardly reflects badly on the father.
The fourth entry refers to a young child being grumpy when woken up. She was apparently happy to see her mother again. The entry does not assert that the child was upset in any way after being with her father.
I do not accept the ICL’s submission that any of these entries or the entries in general, shows the mother attributing all the child’s negative behaviour to the father. Indeed, the examples selected by the ICL do not really indicate negative behaviour at all. The diary records many things including occasions when there were no problems at changeover and when the child was happy to go. The lack of an entry for an occasion where the child spent time with her father demonstrates that no issues arose on that visit.
Both matters trivial and serious were recorded. It is true that the mother was very vigilant and recorded, at times, what might be described as minutiae. As she herself said, she did not trust the father and the diary clearly shows this.
The Family Consultant describes the mother as saying that the child “never really went willingly” to spend time with her father. The ICL and the father sought to contrast that with what is recorded in the diary on changeovers when either no separation anxiety was recorded or the entry indicated that none took place. For the last eight weeks of the child spending time with her father in 2013 there are almost no entries describing any reluctance on the part of the child to go to her father. Thus, it is submitted, the statement by the mother was not consistent with her own diary and that she was wrongly attributing unwillingness to see the father to the child.
The Family Consultant also recorded:
33. [The mother] said that, overall though, throughout 2013 she thought that “things were fine and we were in a good place” (in regards to [the child’s] time with her father). [The mother] said that, apart from [the child’s] separation anxiety, it seemed that she enjoyed spending time with her father.
(Magellan Family Report dated 11 June 2014 at [33])
The mother said:
All right. So in the context of you making this statement to the family report writer given what you’ve recorded in your diary that she was never really willing to go to her dad’s that’s not an entirely accurate statement is what I’m suggesting to you? --- Well, what I meant by not entirely willing to go. She never asked can I go, I want to go, hurry up, let’s leave. There was never a willingness to rush out the door to see him. That’s what I meant by that comment.
I take it you accept, given the questions that were asked of the witnesses yesterday that were here, like Mrs [A] Senior and her brother and so on --- ? --- Sure.
--- that [the child] did enjoy her time with her father once she was there?---I’m sure there was times that she did.
When you say there were times are you seeking to limit it in some way?---Yes, because I know that there were times where she did not enjoy it according to what she has let me know.
(Transcript of proceedings, 5 November 2014, page 65 lines 30 to 45)
The Family Consultant said that it was her view that the evidence to which she had regard showed that during 2013 the child was becoming more pronounced in her reticence to see the father. When the eight weeks of nearly issue free changeovers in late 2013 was raised with her, she said:
Having a look, as you have now, and thinking about that history at least for the eight weeks before time was suspended, you would have to have some misgivings about the picture that was presented to you by the mother at the time that you saw her for the purposes of interviews for your report? I don't think I - I would be cautious about just taking an eight-week period as being indicative of what was happening over an extended period of time.
But if we've got a picture being presented of escalation you would expect to be getting worse in the two months beforehand, would you not ? I think or close to it? Okay. So I think that maybe if - that the word escalation is - is not the right one for - for me to have used. I - and I think that my concern, which I expressed at length in the family report, was that - was that a child who was spending that amount of time with her father in a very, very regular consistent way that had been - where orders had been - interim agreements had been complied with over a - over quite a lengthy period of time, particularly for a child of that age, you would not have expected to have seen any problems really. You would expect that there to be, and particularly as - as I've said the father talked to me at length about - about the research he had done on parenting and about how his - his approach to parenting was - how - how he implemented it. So my - my concerns, if you like - and I take back the word escalation - my concerns are more global about the relationship between the father and the child, and the father himself confirmed to me in - when we were doing report interviews that, yes, he was concerned about aspects of [the child's] behaviour at changeover and he - and he did struggle with - with looking at, you know, why she would display those behaviours. At the same time he said to me that - that sometimes [the child] didn't want to go back to her mother. So - so - which is why I then said in the report that there could be an entirely alternative explanation for her difficulties with changeovers.
(Transcript of proceedings, 19 November 2014, page 26 line 29–page 27 line 4)
She also said:
I'm going to suggest to you that that is - whilst that might be the optimum position, it would have to be your experience that from time to time even children who were well-attached to both parents experience difficulty at changeover?   They may, depending on the circumstances of - of - of the time, and
And particularly preschool children I'm going to suggest?   And I've said to you that - I mean, this is - that - that there is an absolute alternative explanation available to why [the child] was continuing to have problems.
And one of those problems may very well be that she had perceived or otherwise noticed that her father was not a particularly popular person in her mother's household, to use the vernacular. That might be a possible explanation for difficulties at changeover, mightn't it?   It's a possible explanation. Yes.
(Transcript of proceedings, 19 November 2014, page 27 line 39–page 28 line 4)
Several things emerge from all this evidence. First, the statement that the child never really went willingly to her father needs to be seen in the context of the mother’s evidence as a whole, which accepts that the child often did have a good time with her father. Secondly, even well attached children happy to be with both parents may experience difficulties at changeover. Thirdly, any reluctance on the part of the child to go to her father could be explained by a negative perception of the father in the mother’s household.
None of these matters, however, casts any doubt on the veracity of the entries in the diary or on the mother’s evidence.
Of the entry of 15 December 2012 referred to in paragraph 30(b)(i) of the father’s submissions, the father submits:
This entry makes it clear that the mother, despite what her evidence might be, was “evidence gathering” well prior to the point where she says that she forms the view that [the child] is at risk of sexual harm in the father’s care. Why is it that the mother would be recording if the child has redness and soreness when her nappy is changed sufficient to take a photo of it, record it in her diary but not raise these concerns with the father or the child’s doctor/health care professional calls into question the mother’s veracity? These type of entries and the mother’s inaction where she clearly had enough concern to record the problems raise questions in relation to the mother’s credibility. That credibility is critical of the mother’s account in relation to other parts of the evidence, including what she says was the sequence of events on 15.12.12 are critical.
[as per original]
Contrary to this submission, the mother did raise the redness with the father by an entry in the communication book as referred to in paragraph 104. This is sufficient to reject the submission. Further, as I have said, evidence gathering of itself is not reason to discount a party’s evidence. Being obsessive is not the same as lacking credibility. The mother was clearly distrustful and suspicious of the father but has also recorded the good with the bad.
Further, on the one hand, the mother is criticised for recording trivial matters and then criticised for not recording everything. In particular, not all of the child’s dreams are recorded in the diary. Its variability and imperfections, if they be that, count towards its verisimilitude and not against it.
Too much is sought to be made of the diary. I am not satisfied that the diary casts doubt on the credibility of the mother or her evidence as to what occurred on 31 October 2013.

Consideration of the 31 October 2013 disclosure

Both the ICL and the father submitted that the disclosure of 31 October 2013 should not be taken as a disclosure of sexually inappropriate behaviour.
Before turning to those submissions it is necessary to preface the discussion of that by reference to two matters. The first is that the child has been taught to use anatomically correct names for various parts of her body, has anatomical dolls and anatomically correct books. Thus the words vagina (or “bagina” or “china” as she says it) and penis are part of her vocabulary. Secondly, as the counsel for the father correctly points out, the child nonetheless uses the word vagina as a reference to her general vaginal and anal area and not in an anatomically correct sense.
Thus, the use of the word vagina by the child (or her version “bagina”), is unsurprising and is not, of itself, a reason to discount the force of the statement and does not, of itself, suggest coaching.
Generally the ICL submitted:
…the ICL will submit that the mother has a genuine belief that the father poses a risk, albeit a belief without foundation. The mother has conveyed that belief to [the child] who has adopted it as her own.
(Submissions on behalf of ICL filed 19 January 2015 at [6])
First, the ICL refers to the mother’s claim that she was “completely shocked and scared” when the child first said that her daddy hurts her vagina and that she resolved to record the serious allegation. This is contrasted by the ICL with the mother’s evidence at trial that, perhaps, there were keys in the father’s pockets that hurt the child. He questions why that was omitted in her affidavit and points out that the two explanations do not sit comfortably together leading to an uncertainty about the recording. What that uncertainty may be is not identified.
In cross-examination the mother said:
Was it your intention when you began the recording, to record just what she had told you prior to the recording beginning?   That's correct.
All right. And she did that in the first go?   Yes.
She - and then when you - so why did you continue to ask her questions about the detail of it?   Because when she first said that he hurts her when he sits her on the lap. The first thing that came to my mind is that it could just be a set of keys in his pocket, or something completely - anything.
So it occurred to you that it might have been something else?   Yes.
Well, when it occurred to you that it might have been something else, wouldn’t you have thought, “Well, it’s an innocent explanation. I’ll stop recording.”?   No, because I had already had concerns from the previous times she had said something about him poking her vagina, so I was already on alert.
(Transcript of proceedings, 6 November 2014, page 56 line 40-page 57 line 9)
The fact that the mother first thought of possible innocent explanations for the child’s statement is at odds with any suggestion that she had trained or coached the child to say the words that were recorded or that she was relentlessly negative about the father.
It is not at all unlikely that a myriad of thoughts passed through the mother’s mind at that time. The fact that there may have been innocent explanations for the child’s statement, which other people may have accepted and thus not recorded, does not diminish the force of the words that were then spoken by the child. This submission is not accepted.
The ICL then submitted that:
The ICL submits that troubling aspects surrounding evidence in relation to this disclosure and the recording are such that it would be unsafe to rely on that evidence as suggestive of sexual abuse. These aspects include:
·The partial nature of the recording – obviously, it does not include what came before the mother started recording. There are also gaps in the recording, with inaudible sections at critical junctures of the conversation.
·The mother’s evidence of the earlier part of the conversation is all that is available and cannot be tested.
·The mother persists in interrogating [the child] despite the child’s inability to answer questions and despite [the child’s] repeated requests to be let out of the vehicle. This raises questions as whether [the child]’s disclosures are made to appease the mother and end the questioning.
·[The child’s] responses to questions about when the abuse occurred are developmentally inappropriate. The mother herself conceded that [the child] did not know the days of the week at that time. [The child’s] attempt to identify days of the week raises the spectre of coaching but in any case shows at least some of [the child’s] responses are not genuine. She is guessing at the right answer.
(Submissions on behalf of ICL filed 19 January 2015 at [54])

In oral submissions counsel for the ICL accepted that there were no gaps in the recording and that the word “gaps” was intended to be a reference to inaudible sections.
I have listened to the tape of the recording. Whilst there are inaudible sections, the court must work with what is there. I do not accept that there were inaudible sections at critical junctures. It is unlikely that anything that was said that was inaudible would have rendered the conversation innocuous.
The second point is obvious. Again, merely because the mother’s evidence as to the recording cannot be “tested” that does not mean that either her evidence as to the circumstances surrounding the recording or the recorded material should not be accepted. Lest there be any doubt, I am not persuaded by the submissions of the ICL and the father that the mother’s evidence to this conversation should not be accepted. Her evidence is not inherently unlikely and I have already rejected the attacks on her credibility based on her diary.
As to the third point, whilst there was some repeated questioning by the mother late in the conversation, the child’s statements that “he put his penis on my leg”, that “he hurt me” and that he hurt her vagina because “he always does it” were answers to open non-leading questions. They were easily answered by the child before any request to be let out of the vehicle. These submissions of the ICL cannot apply to that part of the disclosure. The child only asked to get out of the car twice and the questioning remains relatively appropriate. Leading questions are then asked but no further critical answers are received.
The ICL then raises concerns as to whether the child’s responses are developmentally appropriate.
It is obvious the child does not know the days of the week. The mother says so in the very recording. That does not deprive the rest of the conversation of weight. That confusion does not point to coaching.
The ICL then criticised the mother’s response to the child’s statements in not contacting the Department of Family and Community Services. She did so, of course, but not immediately. In cross-examination the Family Consultant said:
You will know that she had worked as a nurse for a period. Did it not cause you concern in terms of assessing the mother's veracity that she had taken none of those steps prior to handing the child over in view of what she alleges in full the child had said to her? No. Because the - the - the sense that I got from the mother was at that point she was in complete shock. She was confused. Something quite traumatic for her had happened, which is a child disclosing possibly that they have been sexually abused. She's certainly aware of her - you know, of the - the legal need to comply with orders, and I think that she was hoping that there was some other explanation, and so with - with all of those things whirling around in her brain, as I took it from - from speaking with her, she responded the way she did.
(Transcript of proceedings, 19 November 2014, page 52 lines 19-29)
I find that to be the explanation for the mother not immediately contacting the authorities. It is also an explanation for her leaving the child with the father.
The ICL submitted that this “baffling” decision and the also “baffling” decision to raise the allegations immediately with the father “cast doubt on the degree to which the mother was actually concerned at the time” (Submissions on behalf of ICL filed 19 January 2015 at [57]). It would seem to follow that the ICL is submitting that the mother then knew that there was nothing in the disclosure. Her subsequent behaviour is entirely at odds with that submission. It would have been rather more baffling had the mother not raised the allegations with the father.
The submissions of the father are more measured. The father’s position quite simply is that he did not abuse the child and cannot explain why she came to say these things. He raises a number of possibilities as to why she might have done so.
The father says that there is a concern that the mother or S could have coached the child to say these things. I accept the evidence of the Family Consultant that it would not be possible to coach a person of the child’s age, in the sense of rehearsing them to tell their story, because they would not have the cognitive development necessary for such a process. The Family Consultant opined that however, a child of the child’s age could be trained to parrot some statements although parroting a conversation of this length would be possible but not probable.
It is submitted that S might have the motivation to do so because of the hatred he bears towards the father. For similar reasons it is said the mother might have coached the child. There is no direct evidence of such coaching or evidence from which coaching could be inferred. The fact of the recording itself and the mother’s mistrust of the father do not suffice to enable that inference to be drawn. Thus, although coaching or training remains a possibility, there is no evidence that points to it.
It was suggested by the father that the mother may have coached the child for the purpose of the mother obtaining sole parental responsibility for the child thus entitling her to choose the child’s school. The choice of school was the one major parenting issue upon which the parents could not agree. There is no evidence which supports his evidence to that effect other than those bald facts. They do not establish that the mother held her view of schooling so strongly that she would invent the disclosures and have the child repeat them. It was not put to her that she did.
There is some force in the submission that the child may well have picked up on conversations about and feelings towards the father within the household in a sufficient way for her to say negative things about him. That does not explain the reference to the penis getting bigger. That is clearly a reference to an erection which should be beyond the experience of a three year old girl.
S is a teenage boy and has teenage friends. It is possible that the child may have heard them talk about erections or perhaps even seen one. It is possible that M and K may have discussed erections within the hearing of the child.
Similarly, as submitted by the father the possibility that someone else has committed these acts with the child cannot be entirely ruled out.
It is possible that the child may have misinterpreted an innocent event.
It is possible that the child was attention seeking. That, however, would not explain the reference to an erection so some other explanation must be sought for that. The Family Consultant said that:
I would say that - well, just from - from my encounters with [the child] she's fairly attention-seeking in the way that a young child with a family - in a family of older siblings is. Yes.
(Transcript of proceedings, 19 November 2014, page 57 lines 45-48)
This could explain some of the statements later made by the child given the response to what she said on this occasion. It does not satisfactorily explain the October 2013 statement. This possibility must be heavily discounted in relation to this event.
Further, it was submitted that by reason of the mother telling the child in December 2012 that her father should not touch her vagina the father submits that the mother instilled in the child the idea that her genitals are a “no go zone” for the father. As found earlier, given the child’s age and the interval between the events, this is a very remote possibility.
The phrase “put penis on me”, could, it was submitted, be a silly statement or an attention seeking statement.
All these remain possibilities. There was no evidence to suggest that any of them were likely. They remain speculation but nonetheless are factors to be considered in deciding what to make of this conversation. Taking them into account there is still a reasonable basis for the statements of the child to refer to inappropriate behaviour by the father.
Ultimately, the father submitted that in order to make any sense of the relevant disclosure the court would need to accept the parts of the conversation that were described by the mother but not recorded. As I have found there is no reason not to accept the mother’s evidence.
The Family Consultant said in cross-examination that:
Yes. And that's why I'm going to suggest it's unhelpful to say, "Look, we've got to find that she acted with intent and that she was vexatious and she has essentially coached or made this up, but that's the only way that these can be untrue because there are lots of other things on the spectrum that could lead to these things being said? What I was saying to you was that if we discount the mother being vexatious, and in taking account all of those other possible explanations that you mentioned, my view is that I formed a belief that I think that there is - there would be a risk to this child in the future should she have unsupervised contact with her father.
Okay. But you're not saying that then - that his Honour would have to find that the mother had done this vexatiously to disprove an unacceptable risk? No.
(Transcript of proceedings, 19 November 2014, page 65 lines 33-44)
There is no evidence that the mother has acted vexatiously. I find that she has not.
I accept that opinion and find that the statements made by the child Z on 31 October 2013 give rise to a risk to the child if she were to spend unsupervised time with her father.

The father takes Z to the toilet with him

On 29 October 2012 on return from the child spending time with the father the father said to the mother, according to the mother’s diary, “[The child] likes to watch him go to the bathroom”. The note continues “He takes her in with him when he uses the toilet!” (Exhibit NLA 2, affidavit of the mother affirmed 10 October 2014).
This is confirmed by what the father told Joint Investigative Response Team as set out at [73] of these reasons.
Of this the father says:
91.In [the mother’s] previous affidavit in these proceedings, [the mother] has alleged that [the child] stated that I like her to watch me go to the bathroom. I say to that when [the mother] first told me she was starting to toilet train [the child], I did not know what to do. I did some research on the internet and found the website which is a Commonwealth Government sponsored website that provides parenting advice. Some of the advice offered on that website related to toilet training and described it as natural for children to see their parents going to the toilet, although it might make some parents feel uncomfortable. It was partly on this basis that I allowed [the child] to see me using the toilet. Annexed hereto and marked with the letter “M” is a copy of the advice from the website.
92.Another reason why I allowed [the child], who was then 2 years old, to watch me going to the toilet was because she was so young that I did not think it generally appropriate to have [the child] unsupervised while I went to the toilet myself.
93. I further say that every time I needed to go to the toilet on days that [the child] was with me (and the dogs were either outside or otherwise securer from [the child]) she and I would have a conversation to the following effect:-
[Z]: “Daddy!”
Me:“Yes, Turtle?”
[Z]:“Where are you going?”
Me:“I need to go and do wees”.
[Z]:“I wanna come!”
Me:“Are you sure?”
[Z]:“Yes”.
Me:“Ok. Do you need to do wees?”
[Z]:“No”.
Me:“Ok, let’s go”.
94.I grew up in a house where parents were comfortable being natural in front of their children. When I was a young child, my mother would often walk around the house nude, and I would never close the door when I would use the toilet or take a shower. This was the case until I was kicked out of my home when I was 15.
(Affidavit of the father affirmed 10 October 2014 at [91] – [94])
The mother’s unchallenged evidence was that the child was fully toilet trained at 26 months.
It is not entirely clear how a young girl watching an adult male urinate would assist in toilet training.
It is implicit in the father’s evidence that he was the only one available to supervise the child when she was with him. However, the evidence of Ms A is that she was present for almost all of the time on the occasions that the child spent with the father. It is true that for some time she was pregnant and frequently rested in the bedroom upstairs or on the sofa. But it is not clear why, even if the child needed constantly to be monitored, Ms A could not do it while the father went to the toilet on at least some occasions.
It is inappropriate behaviour on the part of the father to encourage the child to watch him go to the toilet on every occasion. It is more than a lack of judgment or an alternative parenting choice. If it happened occasionally or the child just happened to tag along that may be so but the father did not discourage her. This aspect of the evidence is concerning.
On 4 May 2013, the father had a shower naked with the child. When the child went home she and told her mother about it saying that she saw her father’s penis. There was then some communication between the parents, the mother asserting that the behaviour was inappropriate and the father asserting that it was not and that he was entitled to do so if he liked. The evidence of the father and Ms A is that Ms A was present all the time and that nothing inappropriate occurred. Given that evidence nothing more can be made of that event.

THE FAMILY CONSULTANT’S REPORT

A Magellan Family Report was prepared in June 2014 with interviews being conducted on 6 June 2014. Given the nature of the allegations that had been made the Family Consultant decided she would not interview the child with her father. The Family Consultant opined:
74.[The mother’s] description of [the child’s] separation anxiety (at both leaving the mother and upon reunification) was largely confirmed by [the father] (although he tended to either underplay it or be dismissive because it was resolved relatively quickly). [The mother] also kept a diary of [the child’s] reactions to her father, noting briefly and factually what occurred (rather than with emotional or other pejorative embellishments, apart from “not impressed”). This contemporaneous record is very important. If it is assumed that [the mother] was not arbitrarily or otherwise sinister intent making up these observations, then it appears that [the child] was indeed struggling emotionally with spending time with her father. Given that [the child] has spent time with her father on at least a weekly basis since the end of 2011, this behaviour is concerning. A child who has been spending time with a parent on a weekly basis for almost two years should have formed a healthy attachment to that parent, which would then assist them to manage separations and reunifications with relative ease. [The father] went to great pains in his affidavit material to demonstrate how he has approached the parenting endeavour, be researching and reading and incorporating this learning into his parenting style. The type of parent that [the father] believes himself to be – warm, responsive, sensitive and empathic – would engender, under most circumstances, a close and affectionate bond with their child.
75.It is a possibility, therefore, that there were other factors at play which have interrupted [the child’s] attachment to her father, and one of those could have been trauma of some kind. [The child’s] proximity seeking behaviour (to her mother) and displays of fear towards her father as well as her resistance at times to leaving with him, and the continuation of these behaviours over time need to be considered as possible markers of an abusive relationship.
76. However, and alternative hypothesis is that [the child] is a child whose temperament was not suited to the chronic disruptions in her caregiving environment; that is, the regime of seeing her father twice weekly was simple too much of an emotional load at such a young age. She may have experienced a repeated sense of loss of abandonment that she was unable to resolve or she may simply have missed being in the company of her large family. [The mother’s] descriptions of her struggle to manage [the child’s] rejecting behaviours give support to the view that [the child] had difficulties in managing all of her attachment relationships, including with her father and the people in her father’s life.
(Magellan Family Report dated 11 June 2014 at [74] – [76])
The Family Consultant then concluded:
78.[The child] was interviewed on two separate occasions (by JIRT and then by FACS). On both these occasions, her statements were contradictory and confused and often made little contextual sense (which is not surprising for a child of her age). For these reasons, the allegations were not substantiated. However, the Magellan Report from FACS concluded (because of the nature of her original disclosure) that there is a moderate risk of sexual harm for [the child] should she have unsupervised contact with her father. This conclusion is supported, on the basis of all of the factors outlined above:
·    There is no history of parental alienation or any issues regarding compliance with consent orders and the relationship between the parties was relatively amicable;
·    The consent orders were generous in terms of time spent with a non-residential parent which indicates that the mother was supportive of [the child] having a relationship with her father;
·    The orders allowed for optimal development of the father/daughter bond;
·    The mother has residual concerns over time which she chose to deal with through the recording of basic facts about [the child’s] time with her father in a diary rather than through making allegations, which suggests that she was not seeking in the first instances to be accusatory, blaming or obstructive;
·    [The child’s] behaviour over time indicates an unresolved and possibly escalating fear of her father and anxiety about being in his presence; and
·    The circumstances and content of [the child’s] disclosure to her mother gives the impression of being spontaneous, genuine and contains descriptions of act which are highly concerning and unlikely to have been ‘imagined’ by a three year old.
(Magellan Family Report dated 11 June 2014 at [78])
Ultimately the Family Consultant recommended that if the court found there was not an unacceptable risk to the child spending time with her father then that time should be at a children’s contact centre period for a minimum period of 12 months. It emerged quite clearly, however, that she felt that if the mother’s evidence was accepted, the child was at an unacceptable risk of harm if she spent even supervised time with her father. In her report she said:
If [the child] has been sexually abused by her father, then spending time with him, regardless of how physically secure the environment is, is likely to be experienced by her as significantly traumatic and anxiety and fear provoking.
(Magellan Family Report dated 11 June 2014 at [79])
It was not submitted by either the ICL or the father that if there was a finding that the child was subject to an unacceptable risk of harm when with the father, that she should nonetheless spend time with him.
The ICL made a substantial attack upon the Family Consultant’s report. It was submitted:
83.The ICL submits that the Family Consultant has done little more than cloak the mother’s views with the legitimacy of the Family Report by accepting the mother’s account without question, and not conducting a formal independent assessment or observation of any the relationships.
…
84.A startling feature of the Family Report is that it fails to address at all many issues or events that are critical to the Court’s ultimate decision and that would be expected would have been explored.
…
86.Thus it can be seen that the Family Consultant has made no attempt to express an opinion about the nature of the mother’s perception of risk.
…
87.Finally, the ICL submits that little weight ought be given to the analysis of [the child’s] disclosures which are simplistic.
…
89. There is no basis for suggesting that a disclosure on 31 October 2013 was a spontaneous one. The fact that it is described as such ought to give the Court little confidence in the Family Consultant’s judgment.
(Submissions on behalf of ICL filed 19 January 2015 at [83], [84], [86], [87] & [89])

The reasons given so far already reject parts of those submissions.
It is wrong to suggest that a Family Consultant has blindly accepted everything the mother has said. Indeed the relevant passage quoted above has early on in the first paragraph the following “If it is assumed that [the mother] was not arbitrarily or otherwise sinister intent making up these observations …” (Magellan Family Report dated 11 June 2014 at [74]).
The second quoted paragraph proceeds, “It is a possibility, therefore that there were other factors at play which have interrupted [the child’s] attachment to her father, and one of these could have been the trauma of some kind.” The Family Consultant then goes on to consider an alternative hypothesis as to how the child’s behaviour, as described by the mother, could have arisen.
Ultimately, the report was based on the assumption that the mother’s version of events is correct. That is not unusual for an expert. If the mother’s version is not accepted by the court then the report has little or no value. However, as I have found no reason to reject the mother’s evidence, the assumption and the views based upon it, were well founded.
The ICL complained of the Family Consultant not mentioning, let alone examining the following matters:
i)the relevance of the mother’s evidence of physical “injury”;
ii)the mother’s failure to present [the child] to doctors;
iii)the inconsistency between the evidence of injury and consent orders;
iv)the significance of the mother telling [the child] that the father is not allowed to touch her vagina;
v)the significance of any of the conversations initiated by the mother with [the child] about abuse;
vi)the mother’s decision to allow contact to proceed on 31 October 2013;
vii)the significance of [S’s] observation that he was to spy on the mother’s behalf;
viii)the significance of [S’s] awareness of the mother was worried that the father would do “bad stuff” to [the child];
ix)the impact on [the child] of the elder children’s views of the father.
(Submissions on behalf of ICL filed 19 January 2015 at [86])
As is apparent from these reasons the court does not attach the same significance to these matters that the ICL sees. It is difficult then to be critical of the Family Consultant for not pursuing them.
Finally, it is difficult to understand the basis for the submission that the child’s disclosure on 31 October 2013 was anything but a spontaneous one. If the mother’s evidence is accepted, there is clear evidence that it was. If, for some reason, the mother’s evidence was not accepted then there is no evidence as to how that disclosure came about. There are no particular events that occurred at that time that would suggest the mother would be likely to attempt to cause such a disclosure or have a reason to try to cease contact between the child and her father at that time. Certainly none was put to the mother.
Finally, it remains to find that even if the Family Consultant’s report is to be disregarded in its entirety I would come to the same conclusion.

UNACCEPTABLE RISK

In M v M [1988] HCA 68; (1988) 12 FamLR 606 the High Court said at [22] – [25]:
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said:
23.The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
24.His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
25.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if time with a parent be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding parenting issues. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised time. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. However that is not the issue in this case.
An allegation of sexual abuse of a daughter by her father is a very serious allegation. Quite properly the mother did not submit that I should make a finding that the father has sexually abused the child. The above evidence is insufficient to do so.
Taking all these matters into account, however, I find that the disclosure made by the child on 31 October 2014 and the father’s behaviour in encouraging the child to go with him to the toilet such raises sufficient concerns to establish there is an unacceptable risk to the child’s safety if she were to spend time with her father.

THE BEST INTERESTS OF THE CHILD

In determining what order is to be made in the parenting case the paramount consideration to be taken into account is the best interest of the child. The best interests of the child are determined by having regard to the considerations set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents. Here, although the child has obviously suffered some separation anxiety from moving from her mother to her father, she obviously enjoyed her time with the father. Her mother says this is so. The child told her siblings that she misses her father. The child would clearly benefit from having a meaningful relationship with both parents.
The second primary consideration is the need to protect the child from physical or psychological harm from bringing the subject to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) of the Act provides that in applying the two primary considerations the court is to give greater weight to the consideration of protection of the child.
I have found that the child is at an unacceptable risk of harm if she were to be with her father. As identified by the Family Consultant, the child could be protected from physical harm, but not psychological harm, by supervision. If, indeed, the child has been assaulted by her father it would be highly traumatic for her to spend time with him even if supervised. As the Family Consultant said, that would be emotional abuse of the child.
Accordingly, the need to protect the child from abuse points very strongly at the child not spending time with her father and outweighs the benefit to her of having a meaningful relationship with him. This accords with s 60CC(2A) of the Act.
Pursuant to section 60CC(3) of the Act the court must take into account a number of additional considerations.
The child has not expressed any views and given her age any views would be of no weight.
The child has a close relationship with her mother and her siblings.
The child’s relationship with the father is more problematic. The Family Consultant doubted whether there was indeed a secure attachment between the child and her father which she found surprising given the frequency of contact between them.
Nevertheless the nature of the relationship between the child and her father is one that, absent the unacceptable risk, ought be pursued and supported.
Until October 2013 the parents have participated in decisions made in relation to the child, but few, if any, long term decisions arose. There remains an issue as to which school the child should go, with the mother favouring F Grammar School which two of her other children attend and the father being opposed to any Christian school at all. This impasse is such that the father suggested that the mother had assisted the child to make the statements of October 2013 so that she could use them to obtain sole parental responsibility for the child and thus impose her choice of school.
The father, until 31 October 2013, spent regular and increasing time with the child, by arrangement with the mother. Notwithstanding the mother’s distrust about the father, the child was always available for those occasions even though the mother, without contradiction, records in her diary, the father not taking up all opportunities for contact.
The parties did not address evidence regarding the issue of the parents’ obligations to maintain the child and it is not a relevant factor in this case.
The court is to consider the likely effect of any of change in the child’s circumstances. The orders that were proposed by the ICL would see the child living substantially with her mother and spending limited supervised time, at first, with the father. This would involve the child spending time with the father. This was described by the Family Consultant as being significantly traumatic and anxiety and fear provoking. Thus, in the light of the above findings, any change in the child’s circumstances that involved her spending time with her father would not be in the child’s best interests.
There is no practical difficulty and expense in the child spending time or communicating with her father.
A relevant consideration is the capacity of each of the child’s parents to provide for the child, including the emotional and intellectual needs. Two matters regarding the father raise concern.
The first is his sudden unexplained absence, at least as far as the children are concerned, from the lives of M, K and S. It is to be recalled that he obtained an order for equal shared parental responsibility for them and had their names changed to Abebe. He thus took on, in a very serious way, the role of father to them. His view was that on the termination of the marriage that parental responsibility ceased. He then simply stepped away from the role as father that he adopted. As can be seen that had a very severe and unfortunate impact on the children. It was quite clear from his dealings with the counsellor that the father lacked any insight as to that occurring and his part in it.
The second incident is much more minor. The mother’s ex-mother in law is known as Abuela (‘grandmother’ in Spanish) and is called that by all the children. The father asked the mother not to encourage the child Z to call the mother’s ex-mother in law Abuela. This, he said, was because using this name would encourage the grandchild relationship between Z and the other children’s maternal grandmother, when, in fact, she was not Z’s grandmother. Given that she is a grandmother to the other children and the closeness of the family, it seems rather harsh for the child to be singled out to have to call Abuela by a different name. This seems to be a decision that focuses more on the needs of the father than the needs of the child.
On the other hand, as has been seen, the mother has been obsessively distrustful of the father. She would say she is justified but there has been rather unfortunate involvement of the child in this. For example, the mother recorded that during one discussion the child told her that she wanted to go to F Grammar School and that she wanted to tell her father that she wanted to go to F Grammar School. This rather suggests that the child had, at the least, overheard discussions with the family about where she should go to school. That is unfortunate although it may be explained simply by the other children doing so. The response from the mother was very unfortunate. She said: “I think right now is more important to tell daddy not to touch your bottom or vagina.” This was on 3 December 2013. The mother agreed that it was an unfortunate reinforcement of the allegation and not in the child’s best interests.
On another occasion, the child was drawing and had run out of ideas of things to draw. She asked for her mother’s assistance. The mother suggested she draw a bad dream and throw it away. That was not the wisest choice.
However, having said that, the child seems to be, in all the circumstances, a happy child. Her mother, save for the interaction with the child’s father, is able to provide for the child’s needs emotionally and intellectually.
The father is an African American. The child obviously has physical characteristics of a child between an African-American and Caucasian. Although brought up in a Christian background the father has recently followed the practices of Kwanza. It would be important and of value to the child, all other things being equal, for her to spend time with him to feel comfortable with her background and origin and be aware of and appreciate the cultural differences between the father and the mother.
I have already discussed the attitudes of the parents and their approach to the responsibilities of parenthood.
Absent the finding of unacceptable risk, these considerations would point to the child’s best interests being served by spending time with her father. That finding, however has been made. It cannot be overcome by an order for supervised time because it would not be in the child’s interests. If there has been inappropriate conduct by the father that may have a traumatic effect and itself be abusive. The consequence of the finding of unacceptable risk is that, even taking into account the above considerations, the child should live with her mother and spend no time with her father.

Equal Shared Parental Responsibility

Section 61DA of the Act provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption will not apply if there are reasonable grounds to believe the parent of the child has engaged in abuse of the child. As there is no finding that such abuse has taken place the presumption is not rebutted.
Equal shared parental responsibility requires the parents to conform with the obligations imposed by sections 65DAC of the Act which is an obligation to consult and make a genuine effort to come to a joint decision and jointly to decide major long term issues. Major long term issues is a phrase defined in the Act and includes a child’s education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with the parent.
The issue of parental responsibility needs to be approached on the basis that, because there is an unacceptable risk to the child spending time with the father, the orders will provide for her to live with the mother and not to spend any time with the father. There will be no involvement of the father in the life of the child. In those circumstances it would be difficult to see what valuable and considered input he could bring to bear on major long term issues.
Secondly, the mother is now entirely distrusting of the father and has the greatest disdain for him. It would be reasonable to infer that the father now does not have at all a good view of the mother given his view as to how the allegations made against him arose.
It is difficult to see both parents working together to make decisions for the child’s future. I am satisfied that the evidence rebuts the presumption for equal shared parental responsibility. As the child will be living with the mother, therefore, the appropriate order is that the mother will have sole parental responsibility.
For these reasons, there will be orders providing for the mother to have sole parental responsibility for the child, that she live with her and spend no time with the father. There will be orders for the regular supply of school reports and photos of the child to the father.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 May 2015

Associate:

Date: 8 May 2015

[2015] FamCA 327

8 May 2015

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