Ainsley and Ainsley and Anor
[2019] FCCA 3816
•16 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AINSLEY & AINSLEY & ANOR | [2019] FCCA 3816 |
| Catchwords: FAMILY LAW – Interim parenting-where serious allegations of child sexual abuse - where Paternal Grandmother seeks that children live with her - whether unacceptable risk of psychological abuse in the Mother’s care. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) s.140 |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR AINSLEY |
| First Respondent: | MS AINSLEY |
| Second Respondent: | MS RANDALL |
| File Number: | WOC 455 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 12 December 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 16 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | RMB Family Lawyers |
| Counsel for the First Respondent: | Ms Humphreys |
| Solicitors for the First Respondent: | Fulcrum Legal |
| Counsel for the Second Respondent: | Mr Grew |
| Solicitors for the Second Respondent: | DGB Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Cook |
| Solicitors for the Independent Children's Lawyer: | Bowral Legal |
ORDERS
Interim Orders be made in accordance with the document marked “A” dated this day 16 December 2019 and attached hereto.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” to the Court within seven (7) days.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 25 February 2020 at 10:30am for consideration of inclusion in the Magellan list.
THE COURT NOTES THAT:
This matter has very serious allegations of child sexual abuse and the Court requests that if possible the allocation of this matter into a Judge’s docket be expedited.
“A”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
File No. WOC455/2019
BETWEEN
MR AINSLEY
(Applicant)
AND
MS AINSLEY
(Respondent)
AND
MS RANDALL
(Second Respondent)
BEFORE: His Honour Altobelli
DATE: 12 December 2019
MADE AT: Wollongong
MINUTE OF ORDER
Sought by ICL
The children X (born in 2015) and Y (born in 2016) live with the Paternal Grandmother MS RANDALL from 7:00pm on 16 December 2019 and remain in her care pending further order of the Court.
That the children spend time with the Father as follows, noting such time shall be supervised by F Contact Service, pending further order:
a.Each Monday from 4.30pm – 5.30pm;
b.Each Saturday or Sunday for 3 hours as may be arranged between the Father and F Contact Service; and
c.On such other times and occasion as may be arranged between the Father, F Contact Service and the Paternal Grandmother.
The Mother forthwith engage with her treating psychologist, Ms G or another suitably qualified person, to engage in therapy on the effect and impact of these orders and how she can support the children’s transition into the Paternal Grandmother’s care.
The Mother spend supervised time with the children as follows and pending final hearing or further order of the Court;
a.For 2 hours each week as follows:
i.Each Tuesday from 4.00pm- 5.00pm;
ii.Each Thursday from 4.00pm – 5.00pm;
iii.On such other times and occasions as may be agreed between the Mother, F Contact Service and Paternal Grandmother.
That pursuant to s68B of the Family Law Act 1975 the Mother shall be and is hereby restrained from:
a.Approaching the home of the Paternal Grandmother or coming within 100m of the home;
b.Approaching or attending or being within 100m of any school or day-care the children attend;
c.Removing or causing the removal of the children or either of them from any school or day-care the children attend, the Paternal Grandmother or any nominee the Paternal Grandmother may have placed the children in the care of.
The Paternal Grandmother is to advise the Independent Children’s Lawyer by email within 6 hours if any of the following occur:
a.Any illness or injury of either child;
b.Any disclosure of either child which are reported to the department of Communities and Justice.
The child X shall commence term 1 2020 at Suburb KK school.
The Paternal Grandmother shall have sole parental responsibility for all day to day decision making of either child.
The Independent Children’s Lawyer have liberty to relist the matter on 72 hours notice.
10.The parties are restrained from discussing the proceedings in the presence or hearing of the children.
11.The Paternal Grandmother forthwith engage in the children in the ANCHOR Program.
12.The Paternal Grandmother do all acts and things necessary to engage the children in all referred services to support the children’s transition and in this regard is taken to have sole parental responsibility to engage the children in such services.
13.Each parent is to ensure F Contact Service provide a report following each supervised contact period and ensure that report is provided to the Independent Children’s Lawyer directly and as soon as it becomes available by email to … .
14.All supervised time with either parent and the F Contact Service agency is to be at the cost of the parent being supervised.
15.Each parent is to spend supervised time with both children on Christmas day for not less than 1 hour and in this regard the Father is to spend time with the children from 12.00pm – 1.00pm and the Mother is to spend time from 3.00pm – 4.00pm. The location of the supervised time is to be arranged between the Paternal Grandmother and F Contact Service.
16.The Independent Children’s Lawyer is at liberty to speak with any care provider attended by either child in this regard and obtain any information regarding their behaviour and attendance.
IT IS NOTED that publication of this judgment under the pseudonym Ainsley & Ainsley & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 455 of 2019
| MR AINSLEY |
Applicant
And
| MS AINSLEY |
First Respondent
And
| MS RANDALL |
Second Respondent
ORAL REASONS FOR JUDGMENT
In the matter of Ainsley, I provide the following Oral Reasons for Judgment. This case is about two children; X, born in 2015. X is 4 but rapidly heading towards 5 and is expected to start school next year. It is also about Y, born in 2016. Y is 3 years old. The current parties to this case are the Applicant Father, the Respondent Mother, the Second Respondent Paternal Grandmother and the Independent Children’s Lawyer. The Court does not rule out the possibility that the maternal grandparents will join this litigation.
The children are currently living with their mother and spending time with their father, supervised by F Contact Service, but after I heard this matter on 12 December, a temporary arrangement was put in place whereby the children were to physically live with their maternal grandparents. By the time of closing submissions the Mother, in effect, proposed a continuation of the existing parenting arrangement. The Father, Paternal Grandmother and Independent Children’s Lawyer proposed that the children live with the Paternal Grandmother, effective immediately, but spend time with their father, supervised by F Contact Service, and spend time with their mother, supervised by F Contact Service.
There were some minor differences within these proposals and, where the differences are relevant, I will make mention of the same in these Oral Reasons.
Evidence before the Court
In terms of the material that was before the Court and which I have had regard to, firstly, there are all of the affidavits that are referred to in the case outline documents, and I will simply incorporate those into these reasons.
In the Father’s Case, he relied on the following documents;
a)Application in a Case filed 22 August 2019; and
b)Affidavit of Mr Ainsley sworn on 29 November 2019;
In the Mother’s Case, she relied on the following documents;
a)Response filed 22 May 2019;
b)Affidavit of Ms Ainsley sworn on 13 November 2019;
c)Affidavit of Ms Ainsley sworn on 29 November 2019;
d)Affidavit of Mr C sworn on 28 August 2019; and
e)Affidavit of Ms L sworn on 28 August 2019.
In the Paternal Grandmother’s Case, she relied on the following documents;
a)Application in a Case filed 28 November 2019; and
b)Affidavit of Ms Randall sworn 28 November 2019.
A substantial volume of documents were tendered in evidence and I will incorporate the list of exhibits.
The following material was tendered as evidence during the course of the proceedings:
a)Single-Joint Expert Report by Dr J dated 23 October 2019;
b)Independent Children’s Lawyer Tender Bundle;
c)Documents produced pursuant to subpoena on H Child Care;
d)Documents produced pursuant to subpoena on Region N Child Abuse Unit;
e)Documents produced pursuant to subpoena on D Early Learning Centre;
f)Documents produced pursuant to subpoena on Department of Family and Community Services;
g)Documents produced pursuant to subpoena on O Group;
h)Documents produced pursuant to subpoena on Suburb E Community Health Centre;
i)Documents produced pursuant to subpoena on New South Wales Police Force;
j)Documents produced pursuant to s69ZW order on Department of Communities and Justice; and
k)F Contact Reports.
Somewhat unusually but thankfully in this difficult case, Dr J was actually cross-examined. The Court must record that it found particularly helpful the chronologies prepared by the parties, but especially the Independent Children’s Lawyer’s chronology which was detailed and drew from multiple sources and was even cross-referenced to her tender bundle. The outstanding work that was put into this chronology needs to be acknowledged by the Court. I am going to incorporate, as the First Schedule to these Reasons, the Independent Children’s Lawyer’s chronology.
The Applicable Law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
This is a case involving issues about unacceptable risk of abuse. A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
Discussion
I want to acknowledge a few things right at the beginning. Firstly, this is a really difficult case, even with the benefit of expert evidence, the Court has this profound sense that whatever it does, including, for example, doing nothing, exposes the children to some form of risk of harm, especially psychological harm. The present exercise is a risk assessment and minimisation exercise. The best the Court can do is to find the parenting arrangement for the children where there is least risk to them for the time being. It is very important to remember that this is an Interim Hearing only.
Secondly, the impression formed from the evidence is that the relationship between the Mother and Father was not a very happy one and became increasingly unhappy as they separated, and certainly became unhappier afterwards. There is a very low level of trust between them and a very low level of effective communication. I want to acknowledge that it would not have been easy to parent X and Y in the circumstances that they were in and in the circumstances that the parents were in, and especially the Mother. Even now, it would not be easy to parent these children.
Thirdly, it is clear that X and Y are manifesting very concerning behaviours, both sexualised behaviours and other what I will call unusual behaviours. It has gotten to the point that those who care for them have had to place limits on the availability of their services. It means the children are vulnerable. The children have special needs and concerning behaviours. In reality, even when looking at all the evidence in this case, we just do not know why X and Y are manifesting these worrying behaviours.
It is interesting that even Dr J really cannot explain this and I raise the question for the parties to consider whether some other form of expert evidence is needed in order to try to understand why the children are behaving the way they are. The Mother seems convinced in her mind that the behaviours are principally, but, I think, not exclusively, attributable to the Father’s sexual abuse of the children. The Father denies this, of course.
Dr J has concerns about the Mother’s role in what seems to be the children’s behaviour. Dr J has some concerns, and, I must say, the Court too is concerned about the Mother’s health. Not only are these children vulnerable but so too is the Mother. The Court is also concerned about the Father’s parenting capacity.
The Expert evidence
This is one of those few cases where the Court has the benefit of independent evidence at an Interim Hearing through Dr J's Single Joint Expert Reports dated 2 October 2019 which became exhibit ICL1. Dr J’s report is extensive and, rather than read onto the record the various paragraphs of her affidavit, I will simply refer to them, where appropriate, by number and incorporate them in these oral reasons.
It is clear that Dr J was able to correctly identify the background to the dispute and was able to understand the perspectives that each of the parents, and the other people who she interviewed, was able to present. I am going to incorporate quite a number of paragraphs but, in order to understand the perspective of the parents, paragraphs 5, 6 and 7 will be incorporated.
5. According to the account of the prior family relationships which Ms Ainsley gives in documents before the Court, Mr Ainsley was never fully supportive as a partner and co-parent. She further claims that his mother Ms Randall was intrusive into the couple relationship from the outset, attempted to undermine Ms Ainsley’s authority as a mother and that Mr Ainsley never acted to set appropriate boundaries with his mother – even though in 2017 he acknowledged the marriage counsellor’s (alleged) interpretation that his mother’s behaviour was inappropriate. Ms Ainsley characterises Mr Ainsley’s family of origin as “toxic,” and contends that she avoided contact, therefore. She claims that she delayed her decision to end the marriage in 2018 for fear of the ensuing financial loss with which Mr Ainsley threatened her. She asserts that she provided most of the equity in their joint holdings and serviced most of the household debt, that Mr Ainsley was profligate in general, squandering money on cocaine in particular.
6. Ms Ainsley alleges in her affidavits that from a young age X had made concerning comments suggestive of CSA although Ms Ainsley had not wanted to make that interpretation at the time. She also claims that the father was always harsh and unloving towards Y ( who had been a difficult baby for health reasons) and neglected his nutritional needs. In addition to concerns about physical maltreatment of Y, she claims to have grown increasing concerned about the co-sleeping arrangements at the paternal grandmother’s house so did not allow visits after 11 January 2019. Ms Ainsley notes that in January 2019 she had proposed consent orders to Mr Ainsley which she felt would be sufficient to protect the children. These entailed sole parental responsibility and residence with her and visits to the father in the home of his parents subject to certain conditions about sleeping arrangements. However, due to X’s subsequent disclosures of CSA she opposed contact pending further investigation. She reported the father’s treatment of Y to FACS 26 January 2019. She lists alleged disclosures by X of CSA February – April 2019 as well as inappropriate sexualised behaviours by the child. She claims that X also disclosed CSA to a medical examiner and a psychologist. Numerous reports were made to FACS. Investigation did not substantiate CSA warranting prosecution of Mr Ainsley. Ms Ainsley and X engaged with Q (a service for victims of abuse and neglect). Ms Ainsley sought an AVO protecting the children from their father which was provisionally granted on 16/2/19 and later issued by consent (without admission) and was to be heard in September. Police notes on the application for AVO indicate that Ms Ainsley informed them that Mr Ainsley had moved out of the former matrimonial residence on 6/2/19 after living separately under the same roof during 2018. In their short affidavits, Mr C and Ms L (maternal grandparents) attest to having seen Mr Ainsley handle Y roughly on occasion in the past and to having received X’s disclosures of genital touching by her father – which they did not encourage her to elaborate.
7. According to Mr Ainsley’s version of events leading to these proceedings, when he received correspondence from Ms Ainsley about her proposed Application for Consent Orders (property and parenting) on 22 January 2019 there was no mention of child abuse. He claims the mother only raised these CSA allegations after he responded on 4 February 2019 requesting full financial disclosure, rejecting her proposal for 1 day per fortnight with his children and suggesting instead 2 afternoons per week and one weekend per fortnight. He claims to have participated substantially in childcare during the marriage (which was essential due to the long work hours of the mother) and to have relied on his own mother as a babysitter at short notice. He denies all allegation of substance abuse, criminal associates, child maltreatment or spousal abuse. He denies that he or his family have denigrated Ms Ainsley in person or to the children. He alleges that Ms Ainsley was financially and socially controlling of him. He claims that she used the children to control other family members – withdrawing or threatening to withdraw contact with the children if others opposed or annoyed her. He expresses concern about Ms Ainsley’s mental health, referring to her quick temper and to having once seen a noose in the garage. He asserts that the mother does not inform him of the children’s welfare or progress and that she had told them he was in prison. He notes that after Orders for visits were made in July 2019 the first visit (scheduled 11/8/19) could not proceed as the children did not settle after being separated from their mother. The father proposed that the maternal grandfather facilitate the children’s presentation for visits.
The interviews that each parent had with Dr J, I think, are very important so I am going to incorporate a number of paragraphs, particularly in relation to the Mother, for example paragraphs 11 through to 14, and then paragraph 15 and 16, and then paragraph 22.
11. Ms Ainsley adheres to her expressed concerns about the safety of the children in the sole care of their father, including that X started disclosing CSA from the age of 2. She seemed loath to specify the Orders she hoped for. Repeated probing elicited an expression of the view that the safest option would be for her to have sole parental responsibility and for the father to have no contact at all with X until she was six years of age (and thus able to disclose CSA clearly and credibly). In the meantime, Y could visit his father. Q: Why are you not insisting on no contact ever if Mr Ainsley is unsafe for children? A: “I feel like I have to be reasonable”. Ms Ainsley said that she feels “backed into a corner.” It seems she expects the Court to order unsafe contact and the only thing that she can do is encourage X to keep telling her “safe people” if she is maltreated. She has developed safety plans to reduce risk. She sings the “My Body” song with her children so they understand that no one has the right to touch them hurtfully or against their will. She says she is encouraging Y to use words instead of actions to communicate his needs and in order to minimise his aggressive behaviours.
12. Ms Ainsley said that previously she had not wanted to believe that the father of her children would sexually abuse them. However, she felt that she had no option but to be protective in the face of X’s on-going disclosures. Ms Ainsley stressed the fact that X's CSA disclosures have escalated over time, becoming more descriptive and more detailed. Ms Ainsley speculated that the things X says now better “fill in the gaps in the story” about historical events because she is older and better able to explain herself. Ms Ainsley said that X’s disclosures and sexualised behaviours have triggered her own trauma responses. Because of her own childhood experience Ms Ainsley feels that the potential damage of not believing X would be much worse than taking the child at her word.
13. At interview Ms Ainsley adhered to the claims she makes in her affidavits that the father has always shown a lack of empathy towards the children. She concedes that the children enjoy seeing their father in supervised visits and does not deny their affection for him but says their behaviour has worsened since visits began. X is “clingy”, can be disobedient and defiant, tells lies to avoid the consequences for wrongdoing. She opined that X lies to escape adult disapproval as she is oversensitive to criticism. For example, if her brother calls her naughty, X will cry. Ms Ainsley opined that X knows lying to avoid blame is wrong and will tell the truth if challenged. She also asserts that X shows remorse for misdeeds, for example if Ms Ainsley says, “You have hurt Mummy’s heart”. She claims that X often wakes with nightmares “about Daddy” and sometimes accompanies her mother to work when she refuses to be separated to attend pre-school.
14. Ms Ainsley brought to interview a letter from Dr R dated 30/7/2019 and one from H Childcare Centre dated 26/9/19 (both cited in a later section) notifying that due to their unmanageability the children could now only attend Monday-Thursday 9-3, with a “strict” pick-up time. She discussed her plans for working around the difficulties this might imply. She could call on her parents for immediate assistance but would need to make other arrangements including extended leave starting in November. Ms Ainsley said her boss was very supportive. She anticipated being able to manage practically and financially as a stay-at-home mother until X was settled into school next year. She noted that X was enrolled to start at Suburb S School in 2020 (mentioning in passing that Mr Ainsley had agreed for the children to be raised as Catholic but now wants to change their religion and X’s school enrolment). She referred to the need for professional advice on behavioural management implicated by the letter from the childcare centre. Ms Ainsley contends that she uses calm reasoning and explanation to manage the children’s behaviour whereas the father used smacking as discipline. She did not allege that he had seriously injured the children or would but expressed fear that he might handle them roughly. She claims that the children do not misbehave for their maternal grandparents.
15. With regard to the paternal grandparents she reported a good prior relationship with the children. She said that Ms Randall had been “amazing to the kids” and a “wonderful” grandmother. She did not contend that the paternal grandparent would harm the children or allow anyone else to harm them but opined that Ms Randall would conceal misdeeds committed by Mr Ainsley, and would prioritise his welfare over the children’s. She said that Mr M was “okay except when he had been drinking” after which he may become violent.
16. Despite these very serious doubts about Mr Ainsley’s capacity for normative parenting, Ms Ainsley expressed the hope that through parenting courses he may be “rehabilitated”. This struck me as an unrealistically high expectation of such a course and suggested confused thinking. Ms Ainsley said that Y has always been “a hard kid to manage” and that from the outset Mr Ainsley was overwhelmed by the noise and trouble Y caused. As a baby Y had reflux, colic, was lactose intolerant and seven emergency admissions. Y did not talk until he was over two. She noted that the insertion of grommets had helped with Y’s hearing and speech. She described Y as “a quirky child” who is very obsessed with sensory objects (like glitter jars) and has low frustration tolerance. He “explodes” and throws things when thwarted. ASD and ADHD have been queried. It concerns her that Y hurts the pets and appears to have no empathy for other people.
22. Ms Ainsley reported lengthy psychotherapy during childhood and again after she was glassed by a stranger and lost her right eye as a result in 2007. The reported good outcomes of her treatment for PTSD (child and adult trauma) and Major Depression (2007). She currently takes Escitalopram 10mg (this is an SSRI commonly prescribed to control symptoms of depression and anxiety)/.When asked how the childhood abuse had affected her ability to relate to other people, Ms Ainsley replied “greatly” adding that she “could not handle conflict well”. She said she had a strained relationship with her mother Ms L for a long time. She does not speak to her brother Mr LL whom suspects to be domestically violent like their father. She described her stepfather, Mr C, as a very kind, gentle man, and reports supportive relationships with both the maternal grandparents. She reported completing a Parenting after Separation course and could list key teaching points from that course.
Just in this regard, it is important to note that at paragraph 11 the Mother referred to the fact that X started disclosing child sexual abuse from the age of two. The chronology of disclosures and the consequent actions and reactions of the parents and those around them are very important in this case and the Court is satisfied these things are actually accurately reflected in the chronology that the Independent Children’s Lawyer has prepared.
In relation to the Father, the relevant paragraphs are 23 through to 29.
23. Mr Ainsley (27) presented as a pleasant looking man of unremarkable appearance commensurate with his chronological age. He was normally oriented to reality, fully alert and showed no signs of being substance affected. He was polite, friendly and cooperative with the assessment process. He has light brown hair, blue eyes and gave his height as 6 feet .
24. Mr Ainsley explained that he had changed his parenting proposal to change of residence because as a result of these CSA allegations he now consider that the risk of harm with the mother is much greater than he originally thought. He contends that his children would be socially isolated living with the mother because the mother excludes anyone who disagrees with her. He expressed concern about the psychological danger to X if her mother is creating false memories by leading her to believe things that are not true. He contends that the CSA allegations are completely fabricated, remarking on the unchildlike vocabulary (such as “vagina”) which X now uses. He claims that he will be a better parent for the children because he wants both parents and all grandparents to participate in the children’s lives whereas the mother wants to exclude anybody who disagrees with her. He claims that Ms Ainsley has only recently drawn closer to her parents as she needs their help. He called Mr C “a lovely bloke” with whom he would feel comfortable arranging handovers.
25. When asked what the mother’s motivation would be in raising false CSA allegations, he said “Ms Ainsley will do anything to keep the kids from me, I’m being punished for leaving”. According to Mr Ainsley’s version of the former marital relationship it was one in which he was controlled by Ms Ainsley. He claims that he first left after she had an affair with her ex-boyfriend then returned home to try again. He made comments to the effect that this attempt at reconciliation did not work partly because felt he resentment over the affair but more so due to Ms Ainsley’s unrelenting and unreasonable attempts to control him.
26. Mr Ainsley denies that he would have any objection to the mother taking Y for a hearing test. He is aware that Y’s grommets fell out (Mr C told him) and has no objections to the mother seeking appropriate treatment. He is aware that Y’s speech is difficult to understand, so help is needed. He claims that the mother does not keep him aware of the children’s progress, so he has no opportunity to express his consent or approval for treatment. With regard to the serious misbehaviour reported by H Childcare Centre, Mr Ainsley said that the children were “always badly behaved, its nothing new and their old day care said so”. (Mr Ainsley had not seen the letter from H Childcare dated 26 September 2019 and was not aware of the specific concerns raised.) Mr Ainsley claimed that Y has always been a difficult child since birth, but that he had noticed during recent visits that Y had improved his “sharing” and his “cooperative playing”.
27. Mr Ainsley lives with his parents but plans soon to move in with his girlfriend, Ms T (28). Ms T has no children and is a health care worker. His mother and his girlfriend have flexible work hours so could help him with the children’s transport. He did not appear to have considered that it might be far too confusing and disruptive for the children to not only change residences but change schools and at the same time adjust to a new adult female authority figure, all the while sadly missing their mother. On the other hand, he declared himself willing to reside with his parents if that was a condition of the children’s changed residence. He planned to keep working for financial reasons. If need be his mother or Ms T could give up work to take full-time responsibility for the care of the children. Mr Ainsley noted that his mother formerly had a close relationship with the children but has not seen them since January 2019. He denied that his mother had ever tried to undermine Ms Ainsley’s parenting, as alleged.
28. Mr Ainsley denied fearing that Ms Ainsley would attack or neglect the children. He expressed fears for her mental health and welfare: “if Ms Ainsley lost the kids, she might kill herself because she would think that she’s lost, and I’ve won”. He referred to an incident when he had seen a noose in the garage. Apparently, he did not believe that this rope on display indexed a serious suicidal intention but rather suspected it was a prop in a histrionic scene to manipulate him in the context of their relationship difficulties at that time.
29. Q: How would the mother react if the residence of the children was changed? A: “ I hope that she could go along with it”. He did not explain what the basis for this hope might be, or why he had ever imagined Ms Ainsley would be amenable to 50:50 care if she was as uncompromising and as driven by a vengeful, win-lose mentality as he claimed. His thinking on this topic seemed specious and contradictory. In justification of his original proposal Mr Ainsley said he had thought it unfair to assume he was not the better parent and also felt that he deserved more than weekend time with his children. It was explained to him that research findings show that shared care does not work well for high conflict parents. He has not attended any post-separation parenting courses and was advised to do so.
I have had regard to the other interviews, particularly with Mr C, the maternal step-grandfather, and Ms Randall, who is the Paternal Grandmother.
In relation to Ms Randall, in particular at paragraph 36, Dr J records that the Paternal Grandmother conceded a number of things. Firstly, she conceded that Y could be difficult. But, importantly, she conceded that occasionally her son, that is, the Father in this case, may have been abrupt, yelled or smacked Y. This sort of comment is very reassuring for the Court because it means that she did not have a rose-coloured view about her son and was able to identify his weaknesses.
Dr J spends quite a bit of time discussing the children, how they presented, what they said and what happened when they interacted with others so I will incorporate paragraphs 39 through to 47.
39. X (4,8) presented as pretty little girl with hair the same colour as Anne of Green Gables-which was nicely braided. Y (3,6) was observed to be a cheery, sturdy little fellow with light brown hair and blue eyes. Both children were appropriately groomed and provisioned for the occasion. They looked clean, healthy and well-cared for. They were observed initially with their mother and maternal grandfather (whom they call Poppy Mr C). The children were well-behaved and friendly during the initial conjoint interview. X and Y were easily engaged in talking about topics of interest (such as what kind of birthday cake Poppy might get each of them for their birthday, when X would go to big school, Y’s interest in toy cars, X’s beautifully neat colouring-in using sparkly pens.) We adjourned to the back garden to allow them more freedom of movement. Y and his grandfather played with toy cars. X settled at the table and became absorbed with her colouring book again. Ms Ainsley was observed to interact with her children appropriately, providing guidance, structure, limits and praise as required without directing their play or conversation unduly.
40. When Ms Ainsley withdrew (on my cue) the children did not protest at being left with their grandfather in a strange place with a stranger. This was as Ms Ainsley predicted as Poppy Mr C is a trusted familiar. The children knew that their mother would return and that they would go to a play centre afterwards. Y showed age-appropriate activity levels, hedonism and the curious exploration of a novel environment which is usual in a young child who feels safe in the presence of an attachment figure. His grandfather played with him very appropriately, monitoring the environment for hazards but letting the child explore within safe limits.
41. While Y and Mr C were playing, I spoke to X. Her preferences for residence and contact were not canvassed directly as this would have been too confronting. Equally, and for similar but not identical reasons, previous CSA disclosures were not probed. As will be discussed in a later section, no joy could be expected from re-visiting that topic at this stage.
42. X indicated she was looking forward to going to big school with her friends from dance class. X’s responses to a series of attachment-related questions (such as “Who is the best person to …. look after you when you are sick, take you to your first day at school, say Good girl! when you do a good job, cuddle you when you have a bad dream, make your birthday cake, fix your toys if they break) indicated that she sees her grandfather, mother and to a lesser extent her maternal grandmother as the people who will reliably meet her dependency needs. For most questions she immediately answered “ Poppy and Mummy” adding “Nanny Ms L” after several replies. For fixing broken toys she answered, “Poppy and Daddy”. Overall, X’s discourse indicates that she values all her family ties – although she seemed reluctant to acknowledge her paternal kin at first. I suggested we count the people in her family. How many brothers ? (1) Cousins? (4) Mummies? (1) Poppies ? (1) Nannies? (1) Daddies ( no reply).
43. X’s omission of “Daddy” was not probed. I waited silently while X continued colouring-in. Then X added “I have lots of family” explaining that she had “another Poppy, Daddy and Nanny Ms Randall.” Her initial reluctance to name paternal kin presumably indexed a degree of anxious uncertainty about those attachment relationships - or perhaps apprehension about publicly acknowledging those family ties. Her maternal grandfather was playing with Y and did not seem to be monitoring our conversation, but X had her back to him so could not know that he was not as close by as he had been. As X did not turn her head to check on her grandfather’s location before listing the paternal relatives whom she had initially disowned, I inferred that she was not afraid of Poppy Mr C’s disapproval.
44. As instructed, Mr Ainsley was waiting nearby and came when called on his mobile. He and Mr C exchange polite greetings. Y seem delighted to see his father and ran to greet him affectionately. X was more aloof. She responded to her father’s greeting but did not give him the welcome embraces he asked for. He did not press her. Mr Ainsley had brought toys for Y and colouring books and stickers for X which were well-suited to her interests. Y immediately claimed his father’s attention. They played with some of the toy vehicles Mr Ainsley had brought. Mr C withdrew to allow this 1:1 interaction. I sat with X while she continued to colour. She asked me quietly: “Will Mummy come back soon?” After a time, Mr Ainsley said he needed to share his attention and took my place sitting with X whereupon Mr C resumed his role with Y’s play, and I moved over to join them. Mr Ainsley engaged X in a task with a sticker book he had brought her, praising her efforts. When Y made a bid for attention Mr Ainsley re-engaged with him. Mr C stood back quietly and then came to help X with her sticker task. He was gently, and non-directively supportive, giving her hints about how to proceed without taking over.
45. Mr Ainsley’s interaction with both children was similarly positive. He took his cues from their play interests and did not assert himself against their appropriate self-direction. X had written her name and Y’s on her book. Her father invited her to spell out the names tattooed on his right forearm – X and Y. She reached over the table and traced the letters on his arm, spelling them out correctly with some prompting from him. When it was time for Mr Ainsley to leave X resisted packing up. She wanted to complete another sticker picture. Mr Ainsley reassured her she could do so on the next visit. She confirmed with him that he would bring those materials to the next visit so they could do them together.
46. Y farewelled his father very affectionately, but X declined to embrace him. He took her refusal calmly. Mr Ainsley wished the children a nice time at V Play Centre and advised them to “ Be good for Mum.” They separated from their father without fuss or tears but seemed rather fractious and hyped up while awaiting their mother’s return. They wanted to go out the front to watch for Mummy, which Mr C naturally did not want as the Clinic is on a busy road. He headed them off at the pass when they tried to run around the side of the building. I engaged first Y then X in hiding - behind bushes, then behind the shed- jumping out to say “Boo” to their mother. They greeted her happily and went off to their promised treat. Mr C saw them off, then came back inside to be interviewed.
47. Summary of family observation: All three adults were observed to treat the children tenderly and appropriately. Y was observed to be on affectionate, trusting terms with his mother, father and maternal grandfather. X displayed affectionate, trusting bonds with her mother and grandfather. She was aloof with her father although she displayed no fearful aversion towards him and indicated an expectation that he would provide for her needs as requested (books and activities). The children separated without fuss from their mother while in the care of the grandfather in a strange place with a stranger. Y moved easily between his father and grandfather. The maternal grandfather was sensitive and non-intrusive in facilitating the children’s engagement with their father.
Dr J administered a number of personality and psychological tests. I am just going to cherry‑pick some of the paragraphs here rather than cut and paste all of it so that, for example, paragraph 49 and 50 will be included, paragraphs 53 and 54, paragraphs 56, 57 and 58, paragraphs 59 and 60.
49. Mr Ainsley tended to portray himself as exceptionally free of common shortcomings. This defensive response style suggests that he will be reluctant to admit to minor faults, perhaps not even to himself, with an accompanying tendency to minimize the negative impact that his actions may have on himself and others. Given this high level of defensiveness, his entirely trouble-free clinical scale profile is likely to reflect significant distortion and minimization of difficulties. Despite this apparent tendency to “fake good” Mr Ainsley described more problems in certain areas that most defensive respondents acknowledge. These areas include suspiciousness; physical signs of depression; and compulsiveness or rigidity. Further enquiry is likely to be impeded by his unwillingness to frankly self-disclose. No diagnostic hypotheses are generated by his clinical profile, but as noted above these results are unlikely to be valid. On the normal personality scales, he reports reasonable self-esteem, good social aplomb, warmth and extraversion. He describes himself as meek and unassertive: someone who has difficulty with the appropriate expression of anger. He reports average environmental stress and good social support. He has little interest in treatment as he is not experiencing marked distress and reports self-satisfaction. This seems a very unruffled profile for someone accused of child sexual offending, suggesting either deliberate dissembling or poor self-awareness.
50. Ms Ainsley's PAI responses show no evidence of faking good, indeed if there is any distortion it is in the other direction. Her PAI clinical profile is marked by a significant elevation on the ANXIETY scale. She reports a discomforting level of anxiety and tension, primarily manifested physiologically (prominent symptoms include sweaty palms, trembling hands, complaints of irregular heartbeats, and shortness of breath) whereas common cognitive and affective signs of anxiety are not prominent. This pattern suggests that she might not recognize these symptoms as signs of heightened anxiety and stress or that she may be repressing the experience of anxiety to some extent. She indicates some mildly maladaptive behavior patterns aimed at controlling anxiety. She reports experiencing a disturbing traumatic event in the past which continues to distress her and produce recurrent episodes of anxiety (NB. the item content of the PAI does not address specific causes of traumatic stress). She acknowledges relatively mild or transient depressive symptomatology but denies any thoughts of self-harm.
53. Normally-nurturant parents usually obtain very low Child Abuse Potential scores – although some groups of non-abusers score more highly than others (for example parents with a childhood history of being abused, single mothers, battered wives, alcoholics, spousal abusers). Like all such tests, the CAPI is prone to misclassification error, but is much more likely to misclassify a potentially abusive parent as normally nurturant (false negative) than classify a normally nurturing parent as abusive (false positive). The CAPI tests response distortion. When someone consistently exaggerates their virtues then they obtain a high “faking good” index. A high faking-good Index invalidates a low CAP score but not a high CAP score. In fact, a high faking-good index combined with a high CAP score probably identifies the “true perpetrators” – i.e. parents with the most unrealistic expectations of their children and of themselves. This is especially the case if the parents describe their children as very badly behaved at the same time as they completely disavow any personal or parental imperfections.
54. The father obtained a very low Child Abuse Potential score. The mother’s CAP score was higher but well below the cut-off score which divides the population at the 95th percentile. (The top 5% of the distribution is deemed likely to contain active child abusers, based on the assumed prevalence of child abuse in the general population and the fact that the rate of false-positives has been found to be very low for this self-report inventory). Her score was slightly lower than the cut score which divides the distribution at the point where false negatives and false positives are equal. Most of the elevation in Ms Ainsley's CAP score came from the subscales tapping personal distress rather than those probing rigid parental expectations. Neither parent can be classified as normally nurturant as their CAP scores were invalidated by high faking-good indices in both cases.
56. Mr Ainsley’s ratings were in the problematic range (14th percentile) when compared to the norms for fathers. In other words, 86 percent of fathers rate their co-parenting teamwork more highly than Mr Ainsley rates his. Whereas Ms Ainsley’s scores were in the dysfunctional range (<1%) compared to the norms for mothers. She did not positively endorse any item, and was not sure whether they would describe their child in the same way, whereas he positively endorsed 6 items: stating confidence in the mother’s enjoyment of time alone with the child, her prior confidence in his parenting, their ability to solve child rearing problems jointly and to agree on goals for a child. These results contraindicate substantially shared care and augur poorly for shared parental decision-making in general.
57. Parental reflective function - PRF is the capacity to mentalize about child-parent interactions and children’s motivated behaviour, as tested on an instrument such as the Parent Development Interview or PDI ( cf APPENDIX I). In layman’s terms, PRF includes the ability to see things from a child’s point of view, including in those situations in which there is a conflict of interests between a child and a parent. It was not possible to administer the PDI in a standardised manner under the operating constraints for this type of assessment, but the discourse analysis methodology of the PDI was applied to parent’s spoken and written discourse. Neither displayed the hostile or delusional misattributions about their children’s motivated behaviour which predicts grossly pathological parenting (i.e. forms of abuse and maltreatment). Ms Ainsley responded to probes about the children’s needs and motivated behaviour in more specific detail and vivid, recent recall than Mr Ainsley, whereas he was vague and platitudinous.
58. In terms of appropriate plans for the children’s care the mother seemed more realistic and practical than the father, and more willing to prioritise the child’s needs above her own convenience. However, in both cases their ability to maintain a child-focus in extended discourse was deemed to be compromised by cognitive distortion (reflected in the propositional content of their responses) and dysfluency (reflected in the quality and quantity of responses). In the father’s case this seemed to reflect his rights-focus (such as unhelpful, ideas about a parent’s entitlement to parity in time/input). In the mother’s case this seemed to reflect anxiety related to situational threats to security including those triggering trauma responses.
59. Deception - In clinical interviews and self-report questionnaires some people will answer frankly and fearlessly, others will deliberately dissemble to make a good impression and others will consider they are answering honestly but in fact over-exaggerate their virtues due to self-enhancing self-deception. The Paulhus Deception Scales (PDS) are useful to inform decisions about the accuracy of self-descriptions, as well as the validity of scores on standardised measures which lack in-built validity scales. The PDS probes both positive impression management (IM) and self-enhancing self-deception (SDE). An elevated IM score suggests a respondent who is deliberately deceptive for tactical reasons and/or who is highly dependent on social approval. (Naivety or defects in perspective-taking capacity might also be implicated) Elevations on SDE indicate an over-valuing of one’s own ideas. If IM scores are above the invalidation identity cut-off any self-reports which cannot be confirmed from other sources should be mistrusted, especially if the PDS Total is high. This applies to both parents.
| 27.9.2019 | H Day Care’s childcare records note that the children came to school hungry with no bags or jumpers. When the Mother dropped the children off it was noted that she pushed X through door and said to the supervisor “take her”. [178] |
| 29.9.2019 | H Day Care’s childcare records note that X and Y were dropped at school with no bags and that X was upset because she had court on that day. [179] |
| 01.10.2019 | F Contact Report noted that the Children spent supervised time with the Father at Suburb DD. It is alleged by the Caseworker that both Children were happy when they saw the Father. The Father brought a scooter, helmets, football, toys and colouring in materials. Y mentioned that “mummy cut up the drawing” and X said, “mummy threw the drawing in the bin” but then quickly said “mummy was just joking”. It is alleged by the Caseworker that the Father and Children were engaging well with each other during the visit. Both Children kissed and hugged the Father goodbye.[180] |
| 02.10.2019 | F Contact Report notes that the Children spent supervised time with the Father at the Library. It is alleged by the Caseworker that the Children were happy and content with the Father. The Father brought two games to play during contact and appeared to enjoy the time spent with the Father. As the MGF did not bring any food or drinks to contact the Father was asked by the children if they could go to “Maccas”. This was agreed with the MGF. The worker, the Children and the Father went to McDonalds and the Father brought the children a happy meal with apple juice each and watched the children play on the equipment once they had finished eating. It was alleged by the Caseworker that Y happily said goodbye to the Father but X did not want to hug the Father goodbye today. The Caseworker further alleged that X disclosed to her that “Daddy plays with my private parts and sleeps with me”. The Caseworker has said that X did not appear, or sound distressed when saying this to the caseworker and was smiling and giggling after the disclosure. [181] Child abuse Unit case was reviewed. It was noted that:[182] - “This matter was reported by: Ms Ainsley.” - “Family Law Court is still continuing as X has disclosed that she was sexually assaulted by her Father though Solicitors have stated that she is being couched to say these things by her Mother.” - The reporter spoke to X and X's Pre-school. The Reporter stated that the pre-school have stated that the children are not allowed at the pre-school on certain days and there is a written contract that if the children’s behaviour escalate and staff cannot address the behaviours that the mother has to come and pick them up immediately . Y's behaviours include: hitting, kicking and biting both teachers and students, pushing peers, encouraging peers to do naughty things with him. …X's behaviours include defiance, struggling to regulate her behaviours, aggression, shutting down and not talking to anyone, struggling to maintain focus on simple tasks.” - “She (the Mother) is struggling to pay bills and also provide basic needs for the children” - “JRU note that the Father has not had unsupervised contact since this investigation therefore the current report does not contain new information or indicate another incident has occurred.” - “This referral has been rejected as it does not meet the following JRU criteria for sexual abuse: · Prior PAC/PD involvement · Reported information has previously been investigated.” Report was made to NSW Police Child Abuse Unit by Mr EE (H Childcare Supervisor):[183] - “ the caller reports that the Mother spoke with a supervisor at the children’s day care centre when she dropped the children off…The Mother was upset because contact (with the Father) had gone well. Apparently, the children were really happy and excited and came home and spoke positively about the contact… The Mother said she doesn’t want the contact to go well because he will get unsupervised contact….the Mother said to the supervisor this morning, “ I am my wits end, I feel as though I want to kill myself and take my children with me”.” |
| 08.10.2019 | F Contact Report notes that the Children spent supervised time with the Father at the Library. It is alleged by the Caseworker that both children were extremely excited to see the Father that they ran outside to greet him. The Father was well prepared and brought healthy snacks, cares, colouring materials and games to play with the children. It is alleged by the Caseworker that the Children and the Father were very engaged with each other and the Children did not want to leave when contact had finished up and looked visibly disappointed. [184] |
| 11.10.2019 | The Mother and Father attended upon Dr J for interviews. The ICL received an email from Dr J advising the Mother had provided to her a letter from Dr R and a letter from H Childcare dated 26.9.2019. Dr J advised that the Mother had told her that the letters would be brought before the Court as evidence. Dr J confirmed that the material in the letters was important and must be referred to in her report. |
| 14.10.2019 | The Mothers Solicitor provided the ICL and Father’s Solicitor a copy of the letters provided to Dr J on 11.10.2019 |
| 16.10.2019 | The Children attended upon Dr J for interviews. The Mother alleges that a “Ms QQ from JIRT” contacted her to arrange a meeting with X and Y on 23 October 2019 following recent reports made to FaCS.[185] |
| 22.10.2019 | F Contact Report notes that Y mentioned sleeping in the Mothers bed and X said that they take turns sleeping in the bed of the mother and on the floor. Throughout the contact the Father was observed to encourage the children in there drawing and both children referred to the Father as “dad” and “daddy”. [186] |
| 23.10.2019 | The Mother alleges that Mr FF from FaCS and Ms GG from JIRT attended her home as there had been a report made to the helpline from the children’s day care. The Mother alleges that the appointment was to discuss supports for the children. [187] F Contact Report notes that X said that she doesn’t like her current day-care. The children were running away and yelling in the library and the Father tried to deal with this by coercing the children to return to the area where they were playing with toys and threatened to pack up. Apart from this behaviour the worker noted that the children enjoyed the visit and that they interacted positively with the Father. [188] |
| 25.10.2019 | The Single Expert Report of Dr J was released to the legal practitioners. |
| 28.10.2019 | F Contact Report noted that only X attended due to Y being unwell. The Father attended with a range of activities and things to engage in with X. Overall the contact was noted to be positive and X was comfortable and engaged. [189] |
| 31.10.2019 | F Contact Report noted that Y yelled and was aggressive in his tone towards the Father and the Father asked him not to speak to him like that. The Father noticed that Y had a bruise on his leg. He asked Y where this came from which caused Y to become more “defensive, dismissive and aggressive”. Y told the Father that he had been place into his room the night before for hitting children at school. The worker noted again that this topic made Y very defensive. A few moments after the Father asked about Y’s behaviour he had an out burst and aggressively stated, “you touched my bagina!’ and that he would not talk to his Father. Y walked over to the worker and face away from the father and disclosed, “Daddy touched my bagina… he took off his shirt and his shorts and jumped onto X’s bed, I heard daddy jump on X’s bed and then he went downstairs and ate all the food.”. The worker thanked Y and Y said to her, “I’m getting a lolly pop from mum now from her car!” smiled and ran off to the MSGF. Y later asked the Father to play a game of connect four with him. The worker noted that she had not facilitated contact in the last 3 sessions and was shocked by Y’s significant difference in behaviour. The worker commented that X appeared happy and in a good frame of mind however found it unusual that she didn’t want the MSGF to leave the area which has not been an issue during previous visits. Neither the children appeared to want to leave the Father at the end of the visit but there were no challenging behaviours when the children were placed into the MSGF’s car. [190] |
| 4.11.2019 | The Mother’s Solicitor sent correspondence to the Father’s Solicitor alleging that the Father had posted images of the children while at the spend time and alleged that the caption posted with the images was in breach of 121 of the Family Law Act. The Mother’s Solicitor sent correspondence to the Father’s Solicitor details the 3 different day care’s that the children currently attend due to the changes required by H Day Care’s. |
| 5.11.2019 | The Mother alleges that the PGM was intimidating her at the HH Restaurant and that she was motioning towards her and staring at her.[191] F Contact Report notes that Y was again displaying difficult behaviours including aggressive tones, not doing what he was asked and running around the Library. The Father was noted to attempt to explain why the behaviours were not appropriate however Y did not appear to listen. Y became demanding of the Father and demanded that the Father go and get him paper to draw on. The Father was noted to encourage and be persistent with Y and eventually he went and got his own paper. Y was noted to resort to tantrums and yelling to get what he wanted and ran off. The Father tried to engage with him again before the worker suggested that Y have some alone time. Y eventually returned to the table with the Father and X. It was noted that X said to the Father “Nanna showed us the photos you sent us” the Father said he had not sent any photos. Y began aggressively telling the Father, “you hurt mum, you pushed her over!”. The father did not respond to this comment. X announced that she would have a baby sitter tonight because the Mother was going out and made a further statement about not being allowed to tell the Father. Overall the worker noted that the Father tried to redirect Y’s behaviour and ask that he be respectful or behave appropriately. X remains focused on holding all of the Father’s attention. [192] |
| 6.11.2019 | The matter was listed for directions. The Mother’s Solicitor notified the Court that the Mother had to leave early to take the children to interviews with JIRT. She advised the court that these interviews were the second interview following disclosures made 1 week after the family report interviews. The Orders made required the Mother to file and serve an affidavit setting out the recent JIRT involvement and her understanding of the reasons their involvement was necessary and her understanding of all the third parties that have been involved with the children and herself. Orders were also made for further 69zw Material for FACS and NSW Police. The Mother’s Solicitor sent correspondence to the Father’s Solicitor and ICL detailing the names of the persons that the Mother alleges facilitated the current JIRT interviews. The Mother alleges that Ms GG from JIRT, Ms QQ the caseworker and Ms RR from FaCS attended her home and said, “we are concerned that the ICL has put a stop to all therapy”. The Mother alleges that they would be further investigating the reports and were unable to state whether any reports would be substantiated. [193] |
| 11.11.2019 | The ICL sought leave from the Associate to Subpoena the persons that the Mother alleges facilitated JIRT interviews. |
| 12.11.2019 | F Contact Report notes that both children were excited to see the Father. It was noted that there was positive engagement between the children and the Father and were very settled throughout the contact.[194] |
| 13.11.2019 | F Contact Report notes that X was unwell and would not be attending today. It was noted that Y and the Father engaged very well, and Y displayed no aggressiveness towards the Father. Y said to the Father that he had been behaving at school and hadn’t hurt anyone. The Father was praising of this. When the worker dropped Y home it is noted that X walked out of the house and that she appeared to be well. The Mother is reported to have said to the worker that X was unable to attend because she required medical treatment from what Y had done to her. This was not expanded upon. Overall it was noted that the contact was positive, and that Y showed no signs of aggression or frustration. Y appeared to thoroughly enjoy the contact period. [195] |
| 19.11.2019 | F Contact Report notes that only Y attended today due to X being a dance rehearsal. The supervisor collected Y from school and upon changing him realised that there were no spare clothes in his school bag. The day care provided spare clothes for him. During the spend time a small toddler cam and played with Y’s toy cars. Y was noted to play gently and to share with the child. The Father praised him for this. The Supervisor noted that Y and the Father had a “Very engaging, happy contact” and that Y appeared, “settled, he displayed no aggression, frustration”. In the car it was noted that Y said to the supervisor, “ I not scared of Daddy, I lub him berry much, he not really scary, I wish I see him more.”. |
| 20.11.2019 | F Contact report noted that during the spend time X dictated the names of her family to the Father so he could write them under the figures she had drawn. X named, “Daddy, Nanny Ms Randall, Poppy, Mummy, Daddy Mr JJ”. During the car ride home, X said to the supervisor that she had a “new daddy” and that the “new daddy sometimes sleeps over in the toy room bed”. Overall, the Worker observed Y to be more aggressive with X present and X appeared dominant of the Father’s Attention. |
[1] Affidavit of Mr C filed 28.8.2019 [1].
[2] Affidavit of Ms L filed 28.8.2019 [1].
[3] Affidavit of Ms Randall filed 28.6.2019 [2].
[4] Affidavit of Ms Ainsley filed 22.5.2019 [2].
[5] Affidavit of Ms Ainsley filed 22.5.2019 [9].
[6] Affidavit of Ms Ainsley filed 22.5.2019 [2].
[7] Affidavit of Ms Randall filed 28.6.2019 [6].
[8] Affidavit of Ms Ainsley filed 22.5.2019 [5].
[9] Affidavit of Ms Ainsley filed 22.5.2019 [12].
[10] Affidavit of Ms Ainsley filed 22.5.2019 [7].
[11] Affidavit of Ms Ainsley filed 22.5.2019 [29].
[12] Affidavit Mr Ainsley (JA) filed 29.4.2019 [25-27].
[13] Affidavit of Ms Ainsley filed 22.5.2019 [30].
[14] Affidavit of Ms Ainsley filed 22.5.2019 [31].
[15] Affidavit of (Mr Ainsley) filed 29.4.2019 [28].
[16] Affidavit of Ms Ainsley filed 22.5.2019 [38].
[17] Affidavit of Mr Ainsley filed 29.4.2019 [87(v)].
[18] Affidavit of Ms Ainsley filed 22.5.2019 [21].
[19] Subpoena to O Group, Tab ICL 3.
[20] Affidavit of Ms Ainsley filed 22.5.2019 [39].
[21] Affidavit of Mr Ainsley filed 29.4.2019 [879(w)].
[22] Affidavit of Ms Ainsley filed 22.5.2019 [41].
Affidavit of Mr Ainsley filed 29.4.2019 [87].
[23] Affidavit of Mr Ainsley filed 29.4.2019 [56].
[24] Affidavit of Ms Ainsley filed 22.5.2019 [23].
[25] Affidavit of Mr Ainsley filed 29.4.2019 [57].
[26] Affidavit of Mr Ainsley filed 29.4.2019 [58-59].
[27] Affidavit of Ms Ainsley filed 22.5.2019 [24- 25].
[28] Affidavit of Ms Ainsley filed 22.5.2019 [33].
[29] Affidavit of Mr C filed 28.8.2019 [8].
[30] Affidavit of Ms Ainsley filed 22.5.2019 [46].
[31] Affidavit of Ms Ainsley filed 22.5.2019 [43].
[32] Affidavit of Ms Ainsley filed 22.5.2019 [44]
[33] Affidavit of Mr Ainsley filed 29.4.2019 para 7, Annexure B.
[34] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.2.
[35] Affidavit of Ms Ainsley filed 22.5.2019 para 46.
[36] Affidavit of Ms Ainsley filed 22.5.2019 para 47.
[37] Affidavit of Ms L filed 28.8.2019 [11].
[38] Affidavit of Mr Ainsley filed 29.4.2019 para 8.
[39] Affidavit of Ms Ainsley filed 22.5.2019 para 48- 49.
[40] Affidavit of Ms Ainsley filed 22.5.2019 para 48- 49.
[41] Affidavit of Mr Ainsley filed 29.4.2019 para 9.
[42] Subpoena to NSW Police, Tab ICL 1.
[43] Subpoena to Suburb E Community Centre. ICL 1(a), 3 and 5.
[44] Subpoena to NSW Police Sleeve 13, Tab ICL 13.
[45] Subpoena to NSW Police Sleeve 13, Tab ICL 13.
[46] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.1.
[47] Affidavit of Ms Ainsley filed 22.5.2019 para 50.1-2.
[48] Subpoena to NSW Police, sleeve 8, Tab ICL 8.1.
[49] Affidavit of Ms Ainsley filed 22.5.2019 para 50.3.
[50] Affidavit of Ms Ainsley filed 22.5.2019 para 50.4.
[51] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.3.
[52] Affidavit of Ms Ainsley filed 22.5.2019 para 50.5.
[53] Affidavit of Ms Ainsley filed 22.5.2019 para 50.6.
[54] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.4.
[55] Affidavit of Ms Ainsley filed 22.5.2019 para 50.6.
[56] Affidavit of Mr Ainsley filed 29.4.2019 para 10, Annexure E.
[57] Affidavit of Ms Ainsley filed 22.5.2019 para 50.8.
[58] Affidavit of Ms Ainsley filed 22.5.2019 para 50.9.
[59] Affidavit of Ms Ainsley filed 22.5.2019 para 50.10.
[60] Affidavit of Ms Ainsley filed 22.5.2019 para 50.11.
[61] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.5.
[62] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.5.
[63] Affidavit of Ms Ainsley filed 22.5.2019 para 50.12.
[64] Affidavit of Ms Ainsley filed 22.5.2019 para 50.13
[65] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.6.
[66] Affidavit of Mr Ainsley filed 29.4.2019 para 11.
[67] Subpoena to FaCS, Sleeve 4, Tab ICL 1.
[68] Subpoena to FaCS, Sleeve 4, Tab ICL 2.
[69] Subpoena to FaCS, Sleeve 4, Tab ICL 4.5.
[70] Subpoena to FaCS, Sleeve 4, Tab ICL 4.5.
[71] Subpoena to FaCS, Sleeve 4, Tab ICL 4.5.
[72] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.7.
[73] Affidavit of Ms L filed 28.8.2019 [12].
[74] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.8.
[75] Subpoena to D Early Learning Centre, Sleeve 3, Tab ICL3.9.
[76] Affidavit of Ms Ainsley filed 22.5.2019 para 50.14-16.
[77] Affidavit of Ms Ainsley filed 22.5.2019 para 50.14-16.
[78] Affidavit of Ms Ainsley filed 22.5.2019 para 50.14-16.
[79] Affidavit of Ms Ainsley filed 22.5.2019 para 50.17-18.
[80] Subpoena to NSW Police Sleeve 13, Tab ICL 13.8.
[81] Subpoena to NSW Police Sleeve 13, Tab ICL 13.8.
[82] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.7.
[83] Subpoena to Suburb E Health Centre, ICL Tab 3-5.
[84] Affidavit of Ms Ainsley filed 22.5.2019 para 50.19.
[85] Subpoena to Suburb E Health Centre, Tab ICL 14.
[86] Subpoena to Suburb E Health Centre, Tab ICL 14 (a).
[87] Subpoena to NSW Police Sleeve 13, Tab ICL 13.5.
[88] Subpoena to NSW Police Sleeve 13, Tab ICL 13.
[89] Subpoena to NSW Police Sleeve 13, Tab ICL 13.
[90] Subpoena to NSW Police Sleeve 13, Tab ICL 13.
[91] Subpoena to NSW Police Sleeve 13, Tab ICL 13.7.
[92] Subpoena to NSW Police Sleeve 13, Tab ICL 13.7.
[93] Subpoena to NSW Police Sleeve 13, Tab ICL 13.7.
[94] Affidavit of Ms Ainsley filed 22.5.2019 para 50.20.
[95] Affidavit of Ms Ainsley filed 22.5.2019 para 50.21.
[96] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.6.
[97] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.6.
[98] ICL 12 (a) ,ICL 12(b),ICL 12 (c)
[99] Subpoena to Suburb E Health Centre.
[100] Subpoena to FaCS, Sleeve 4, Tab ICL 4.8.
[101] Subpoena to FaCS, Sleeve 4, Tab ICL 4.9.
[102] Subpoena to FaCS, Sleeve 4, Tab ICL 4.10.
[103] Subpoena to FaCS, Sleeve 4, Tab ICL 4.11.
[104] Subpoena to Suburb E Health Centre.
[105] Affidavit of Ms Ainsley filed 22.5.2019 para 50.22.
[106] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.5.
[107] Affidavit of Ms Ainsley filed 22.5.2019 para 50.23
[108] Subpoena to FaCS, Sleeve 4, Tab ICL 4.12.
[109] Affidavit of Ms Ainsley filed 22.5.2019 para 50.24.
[110] Subpoena to Suburb E Health Centre, Tab ICL 9.
[111] Subpoena to Suburb E Health Centre, Tab ICL 5 and 6.
[112] Subpoena to Suburb E Health Centre, Tab ICL 9.
[113] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.4.
[114] Affidavit of Ms Ainsley filed 22.5.2019 para 50.25.
[115] Affidavit of Ms Ainsley filed 22.5.2019 para 50.26.
[116] Affidavit of Ms Ainsley filed 22.5.2019 para 50.28.
[117] Affidavit of Ms Ainsley filed 22.5.2019 para 50.29.
[118] Affidavit of Ms Ainsley filed 22.5.2019 para 50.30.
[119] Affidavit of Ms Ainsley filed 22.5.2019 para 50.31.
[120] Subpoena to NSW Police Sleeve 13, Tab ICL 13.10.
[121] Subpoena to NSW Police Sleeve 13, Tab ICL 13.10 &11.
[122] Affidavit of Ms Ainsley filed 22.5.2019 para 50.32.
[123] Affidavit of Ms Ainsley filed 22.5.2019 para 50.33.
[124] Affidavit of Ms Ainsley filed 22.5.2019 para 50.34.
[125] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.1 & 5.2.
[126] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.2.
[127] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.2.
[128] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.2.
[129] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.2.
[130] Subpoena to Suburb E Community Health Centre, Sleeve 5, Tab ICL 5.
[131] Subpoena to FaCS, Sleeve 4, Tab ICL 4.6.
[132] Subpoena to FaCS, Sleeve 4, Tab ICL 4.7.
[133] Subpoena to FaCS, Sleeve 4, Tab ICL 4.7.
[134] Subpoena to Suburb E Health Centre.
[135] Subpoena to Suburb E Health Centre, ICL 2.
[136] Subpoena to Suburb E Health Centre, Tab ICL 4.
[137] Subpoena to FaCS, Sleeve 4, Tab ICL 4.1.
[138] Subpoena to FaCS, Sleeve 4, Tab ICL 4.2.
[139] Subpoena to FaCS, Sleeve 4, Tab ICL 4.3.
[140] Subpoena to FaCS, Sleeve 4, Tab ICL 4.3.
[141] Subpoena to FaCS, Sleeve 4, Tab ICL 4.4.
[142] Subpoena to FaCS, Sleeve 4, Tab ICL 4.13.
[143] Subpoena to FaCS, Sleeve 4, Tab ICL 4.13.
[144] Subpoena to FaCS, Sleeve 4, Tab ICL 4.13.
[145] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.14.
[146] Affidavit of Mr C filed 29.8.2019 [9].
[147] Subpoena to Suburb E Health Centre, ICL 7.
[148] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.2.
[149] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.
[150] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.3.
[151] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.14.
[152] Subpoena to Town K Medical Centre, Sleeve 11, Tab ICL 11.1.
[153] Subpoena to Town K Medical Centre, Sleeve 11, Tab ICL 11.2.
[154] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.4.
[155] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.5.
[156] Affidavit of Ms Ainsley filed 27 August 2019 [65].
[157] Affidavit of Mr Ainsley filed 22.8.2019.
[158] Affidavit of Ms Ainsley filed 27 August 2019 [69-70].
[159] Affidavit of Mr Ainsley filed 22.8.2019 [11].
[160] Affidavit of Mr Ainsley filed 22.8.2019 [14].
[161] Affidavit of Mr Ainsley filed 22.8.2019 [16].
[162] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.8.
[163] Affidavit of Mr C filed 29.8.2019 [10].
[164] F Contact report dated 9.9.2019.
[165] Subpoena to H Childcare, Sleeve 10, Tab ICL 10.1.
[166] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.5.
[167] F Contact report dated 10.9.2019.
[168] F Contact report dated 11.9.2019.
[169] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.13.
[170] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.9.
[171] F Contact Report dated 18.9.2019.
[172] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.6.
[173] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.7.
[174] F Contact Report dated 24.9.2019.
[175] F Contact Report dated 24.9.2019.
[176] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.10.
[177] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.11.
[178] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.12.
[179] Subpoena to H Day Care’s childcare, Sleeve 10, Tab ICL 10.12.
[180] F Contact Service Report dated 1 October 2019.
[181] F Contact Service Report dated 2 October 2019.
[182] F Contact Service Report dated 2 October 2019.
[183] Subpoena to NSW Police, Sleeve 13, Tab ICL 13.4.
[184] F Contact Service Report dated 8 October 2019.
[185] Affidavit of Ms Ainsley filed 13 November 2019 [3].
[186] F Contact report dated 22.10.2019.
[187]Affidavit of Ms L filed 28.8.2019 [3-5].
[188] F Contact Report dated 23.10.2019.
[189] F Contact Report dated 28.10.2019.
[190] F Contact Report dated 31.10.2019.
[191] Affidavit of Ms Ainsley filed 13 November 2019 [12].
[192] F Contact Report dated 5.11.2019.
[193] Affidavit of Ms Ainsley filed 13 November 2019 [7].
[194] F Contact Report dated 12.11.2019.
[195] F Contact report dated 13.11.2019.
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