Allan & Sacco
[2022] FedCFamC1F 120
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allan & Sacco [2022] FedCFamC1F 120
File number(s): BRC 15354 of 2020 Judgment of: BAUMANN J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW – PARENTING – Discrete hearing as to risk – Where the Court finds the father does not pose an unacceptable risk of harm to the child by way of sexual abuse Legislation: Family Law Act 1975 (Cth) ss s 69ZQ, 69ZR Cases cited: Blann & Kenny [2021] FamCAFC 161
Briginshaw v Briginshaw (1938) 60 CLR 336
Deiter & Deiter [2011] FamCAFC 82
M v M (1988) 166 CLR 69
Rodelgo & Blaine (2019) FLC 93-897
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 41 Date of last submission/s: 17 August 2021 Date of hearing: 24 May 2021 Place: Brisbane Counsel for the Applicant: Mr Bolovan Counsel for the Respondent: Mr Drysdale Counsel for the Independent Children's Lawyer: Ms Wardle ORDERS
BRC 15354 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLAN
Applicant
AND: MS SACCO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS:
1.That these proceedings be adjourned for Interim Hearing at 9.30am on 30 March 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.That each party shall have leave to file and serve one (1) affidavit by 4.00pm on 23 March 2022, setting out any further evidence of relevance since the proceedings were “re-opened” in a limited way in August 2021, with such affidavit to also contain a minute of interim orders they seek for the next six months.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), or to record a variation to the order pursuant to r 10.13 of the Rules.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Sacco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
X (born in 2014 and now aged seven years) is the only child of a relationship between the father Mr Allan (“the father”) and the mother Ms Sacco (“the mother”) that commenced with cohabitation in 2008 and ended with final separation in 2015.
X was 12 months old at separation and earlier parenting proceedings commenced in the Federal Circuit Court of Australia (as it then was called) resulted ultimately in final consent Orders made by a Judge of that Court in September 2018 (“the final parenting Orders”). By the time of the final parenting Orders the father had re-partnered with Ms B, who herself is the mother of two daughters, Y (now aged 14 years) and Z (now aged eight years). Those two children were having an equal time arrangement with their father, but have clearly at times been a part of the father’s household. The father and Ms B married in 2019.
The final parenting Orders for X relevantly provided, inter alia, that:
(a)the parents have equal shared parental responsibility with an obligation to consult;
(b)the child live with the mother and until 1 January 2019, the time the child was to spend with the father would incrementally increase (Orders to 6 to 10);
(c)for the period from 1 January 2019 to 1 September 2019, further incremental increases in time with the father were to occur (Orders 11 to 15);
(d)from 1 September 2019 and relevantly, the child was to spend time unsupervised with the father from midday Friday to 8.30am Monday on week one and from 3.00pm Wednesday to 8.30am Friday in week two (2) (Order 16), with further block time in school holidays ordered as well as time on special occasions such as Christmas, birthdays and Mother’s/Father’s Day; and
(e)at Notation B it was suggested that the parents should review the ordered arrangements by exchange of proposals no later than the conclusion of the Easter school holidays in 2020.
Although there is no evidence that the regime of time was interrupted between September 2018 and October 2020, the parties’ inability to agree on where X would attend school caused the mother to commence proceedings in October 2019 which resulted, after an interim hearing before a Federal Circuit Court Judge, in an Order made on 13 November 2019 permitting the mother to enrol X in F School for the 2020 preparatory school year. Subsequently in February 2020 the father was ordered to pay the mother’s costs of the interim application fixed in the sum of $10,516.
It seems clear that the communication and relationship between the mother and the father was put under more pressure as a result of these earlier legal disputes, however greater tensions arose after the father spent time with X, pursuant to the final parenting Orders from Friday, 21 October 2020 to Sunday, 23 October 2020.
I will shortly, in these Reasons, analyse the events from that weekend, but it is sufficient for context to record that:
(a)as a result of the mother hearing, she says, concerning comments made by X after her weekend with the father, the mother ceased time between the child and the father. Investigations by authorities in respect to the “disclosures” commenced almost immediately;
(b)the father commenced fresh parenting proceedings on 30 October 2020 seeking, inter alia, that X live in a week about arrangement. The father also commenced contravention proceedings, however they were subsequently withdrawn;
(c)the mother’s Response filed 5 January 2021 raised her concerns that the father posed an unacceptable risk to the child, and if so found by the Court, X should spend no time with the father;
(d)ultimately Orders 6 to 31 of the final parenting Orders were suspended; the proceedings transferred to the Family Court of Australia (as it then was called); an Independent Children’s Lawyer (“ICL”) was appointed and the matter was designated a Magellan matter;
(e)the matter was listed for a discrete hearing as to risk, which took place on 24 May 2021 with all parties represented by experienced Counsel, after which a decision was reserved. Although a limited re-opening, on the Application of the mother filed 19 July 2021 resulted in further evidence (paragraphs 1 and 3 to 17 of the mother’s affidavit filed 19 July 2021) being admitted for consideration, the decision has now been reserved since 17 August 2021. The Court expresses its regret to the parties for the delay in delivering these Reasons and is acutely conscious that as a result of the orders to spend time being suspended, X has now not spent any physical time with the father for nearly 17 months.
PRINCIPLES TO BE APPLIED
By final submissions, the ICL through his Counsel Ms Wardle contended for a finding that the father does not pose an unacceptable risk to X by reason of sexual abuse. Such a finding was supported by the father’s Counsel Mr Bolovan. Mr Drysdale of Counsel for the mother expresely, as recorded on instructions, submitted the Court should make a finding that the father does pose an unacceptable risk by reason of sexual abuse to the child X.
In determining that the matter should proceed in part by way of the discrete hearing – pursuant to the power to do so under the Family Law Act 1975 (Cth) (s 69ZQ and 69ZR) and the Family Law Rules 2004 (Cth) as then applied, and as considered by the Full Court in Rodelgo & Blaine (2019) FLC 93-897, the Court was well aware that both parents raise other issues in the parenting proceedings, yet to be determined, on allegations, yet to be tested.
I now propose to consider the evidence and factual findings relevant to the allegation of unacceptable risk of sexual abuse. Before doing so, none of the experienced Counsel who appeared before me sought a “positive finding” that the husband had sexually abused X – no doubt conscious of binding authority that a Court should refrain from making a positive finding unless compelled by the evidence to do so (M v M (1988) 166 CLR 69 at 76-77).
However with the consequences that flow to the child (and of course the father) from a finding of unacceptable risk being so serious, the Court is required to carefully analyse and give real and substantial consideration to the facts of the case and decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk of harm (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34]-[38] and the further authorities mentioned in that discussion of principles).
Before leaving the topic of the legal principles to be applied, I accept some attention to the questions of how the existence and magnitude of risk of future sexual abuse is assessed has been given by the Full Court recently (see Blann & Kenny [2021] FamCAFC 161 at [83]-[86]) however I am content to observe that the assessment of risk involves first the prediction of the likelihood an event will happen, and secondly, consideration of the severity of the impact of that event if it does happen (Deiter & Deiter [2011] FamCAFC 82 at [61]).
The mother, to be fair to her, under cross-examination conceded that she did not know whether the events she says the child described and mimicked to her on 26 October 2020 actually occurred, but she remains concerned that they may have. The process of investigation by authorities and the different opinions she asserts that were given to her (particularly by Police Officers), has caused in her mind some confusion.
I have had the opportunity to see, albeit briefly, both the mother and the father under cross-examination. My impression of the mother is that she is a highly intelligent person; hyper vigilant towards X and her personality demands an outcome from a proper analysis. In circumstances where she is unable to explain the words spoken by X to her – she finds it difficult to not accept what her child (then aged six years) said was other than true. The mother does not assert that the father has any history that would indicate a vulnerability towards developing a deviant sexual interest in children. To the extent the father believes the mother may have fabricated “the story”, the evidence at this stage does not support such a finding.
The father could do no more than give his evidence denying anything inappropriate occurred between him and X. It is not open, in my view, having seen him under cross-examination, to ignore his complete and consistent denials. In that regard, his position being clear, when unable to offer under cross-examination, any explanation for why his young daughter would (on the mother’s case) make the allegation that she does, he resorted to asserting the mother had “fabricated” the allegations. I do not accept the submission of Counsel for the mother that the father was “overly defensive”, although he feels he has been unfairly attacked and deprived of precious time with X without justification.
These completely polarised positions generate what Mr Drysdale described as a “dilemma” in a “very difficult case”.
It is appropriate to note that in testing the evidence as set out above, the Court is mindful of the Briginshaw v Briginshaw (1938) 60 CLR 336 test, now effectively enshrined in s 140(2) of the Evidence Act 1995 (Cth) which provides that:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The effect of the finding the mother seeks is to inevitably lead to a consequence likely to significantly reduce (if not as she seeks forever cease) X’s contact with her father. Furthermore, such a finding will have a significant effect upon the father’s reputation and standing – including possibly as the step-father to the two daughters of Ms B, his wife.
With a proper understanding of these principles and findings as to the parents’ (the only witnesses relied upon) honesty and reliability, I now turn to the evidence that was offered to this Court.
THE FACTUAL CHRONOLOGY
Statements of fact which follow should be construed as findings of fact.
The mother at the discrete hearing relied upon the following paragraphs of her affidavit filed 16 April 2021, namely 1 to 5; 19 to 26; 43 to 88; 90; 104; 114 to 116; 120 and 155 to 161. Mr Drysdale, for the mother, made a proper concession in final submissions that events after the “disclosure” on 26 October 2020 could not corroborate the asserted allegation of sexual abuse having occurred prior on that weekend. The father has, beyond his testimony of denial and that nothing occurred, no evidentiary onus to establish the “negative”. In these circumstances a careful analysis of the mother’s evidence is critical and now follows:
(a)When the mother responded to the father’s recent Application, she filed a Notice of Child Abuse, Family Violence or Risk on 5 January 2021, and at Part I stated briefly what happened in these terms:
On 26 October 2020, the child made concerning disclosures to the mother in relation to being sexually abused by her father while in his care. The timeline of abuse is unclear, though since the child has been spending overnight time with the father, she has been coming home with a sore and red vagina.
For context, under the final parenting Orders, overnight time was prescribed from at least the date of those Orders (see Order 6) or over two years before the “disclosure” made on 26 October 2020 but the evidence suggests overnight time had commenced years earlier;
(b)If the mother’s evidence of a consistently “sore and red vagina” for over two years is correct, no adequate explanation (other than the type of normal infections young girls often experience) is asserted by the mother. There is no evidence she had, over that two and a half year period, sought to connect that likely uncomfortable condition for the child with any actions of the father. The father himself admitted that over the period of time since separation when he has cared for the child, he applied, as necessary, cream to the child’s vaginal area. In my view, the mother’s evidence that in some form this consistent “sore and red vagina” supports a finding of sexual abuse, carries no weight;
(c)At paragraphs 43 and 44, the mother says during a discussion she had with X on 26 October 2020 (approximately three days after the child returned to the mother from a contact visit with the father), about having a bath the mother deposes to the following exchange occurred:
[X]: “Mumma when I have a bath at my daddy’s he washes and touches me.”
[Mother]:‘Is that to make sure you’re nice and clean?’
[X]:“Yes but he also touches my private and my bum.”
[Mother]:“How does he touch you?”
[X]:“Like this” in a calm and collected voice, and the mother described “with her right hand she rubbed her vagina over her underwear as though it was natural and normal.”
[Mother]:“Do you want him to touch you there?”
[X]:“No”.
[Mother]:“Do you tell daddy that you don’t want him to touch you there?”
[X]:“No, I get too nervous’ in a soft reply.
[Mother]:“Can you show me how he touches you?”
[X]:Taking off her underwear (she was it seems on a bed at the time) she said “like this”, with the mother observing that “she put her fingers into her vagina and inserted the tip of her finger into her vagina opening… down to her middle knuckle”, and “moved her fingers up to her clitoris and moved them up and down her clitoris and side to side, and then back to her vagina opening where she inserted her finger back in and out of her vagina opening”. She then looked again at the mother and said “…and then he touches my bum like this” demonstrating by inserting “her index finger into her anus and then she started moving her finger around and around the outside of her anus…”
[Mother]:The mother says she wanted to know how long all of that lasted and asked the child “how long does he touch you for?”
[X]:“I’ll show you” and she then started touching her vagina and bottom in the same way over and over.
The mother say she chose to continue to talk to X “in the hope she would stop showing me”. This makes no sense. During the course of these discussions the mother said she became “more distressed” and she “started to panic”. It is uncertain how the mother’s distress may have been apparent to the child during this continual questioning. When asked if it happens often she said “yes” before enquiring of her mother “what does often mean” and after an explanation X said “no, just when it’s me and daddy”;
(d)That night, when the child was asleep, she rang Police Link who directed her to attend Suburb C Police Station the next morning to report what happened, which the mother did at 10.00am. The Officer indicated the matter would be referred to the Child Protection and Investigation Unit (“CPIU’) at Suburb J, who would contact her quickly. Despite the mother contacting Police on 28 and 29 October 2020 she could get no information as the progress of her report;
(e)With the child due to commence contact with the father on 30 October 2020, solicitors for the mother informed solicitors for the father that pending a Police interview, the mother was concerned to facilitate the father’s time with X and was suspending time. The mother facilitated and clearly (as set out in paragraph 56) listened to a Facetime exchange between the child and the father during which the father enquired “where were you today?”, a question reiterated when Ms B, Z and Y all got on the phone;
(f)The mother decided to move from her home, which she did from Saturday, 31 October to stay at the home of her sister and brother-in-law Ms G and Mr G in City H. The mother told X they were going on a holiday;
(g)On Tuesday, 3 November 2020, at the request of Suburb J CPIU, the mother presented X to Police for interview. The mother says she did not question X or raise her disclosure with her at any time after 26 October 2020. The interview was conducted with an Officer of the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) present or observing. In circumstances where the Court has no evidence directly from Police Officers K and L or Child Safety Officer N, the Court will refer to the documents produced under subpoena. The mother says after the s 93A interview, at paragraph 68, for example, that Officer L said “Mr Allan will be charged over the disclosure and explained that once he is charged he would initially get bail”;
(h)Having listened to the recorded s 93A interview and the later pre-text discussion (recorded by Police) between the mother and the father, I will separately refer to those recordings (Exhibit 2) later in these Reasons;
(i)Although the mother, in her affidavit, gave evidence of other sexualised behaviour by the child, see for example:
(i)Paragraph 75 – grabbing her uncle’s penis with her foot;
(ii)Paragraph 85 – X grabbing her vagina saying “I think it’s [sore] from my daddy touching me”; and
(iii)Paragraph 86 – grabbing dog named “M’s” vagina,
the concession by Mr Drysdale means it is not necessary to explore those issues in depth. In any event, no evidence was called from Mr G, for example, as Mr Drysdale indicated his evidence (in light of the concession) would not assist. Furthermore, no reliable evidence about the events after 5 November 2020 (when the mother consulted the child’s General Practitioner) and where the mother says she was directed to attend O Hospital, was available, save it is clear that the mother elected for X not to undertake a forensic examination, but just wanted X to have a “general check-up” (see paragraphs 76 to 82). If, as the mother states, X only had a “minor cold” at the time, it is difficult to understand why she did not take the opportunity on 5 November 2020 to get X her “general check-up”, noting that the mother made the appointment with her General Practitioner “due to my concerns about X’s disclosure”. I find the mother’s behaviour confusing;
(j)After Police gave consideration to all the available evidence (particularly it seems the s 93A interview), the Police, on 2 December 2020, advised the mother they would not proceed further in relation to the allegations against the father. The Police also interviewed Z and Y at school. The Police advised the father about their conclusion, and also that they had given advice to the Department of their position;
(k)The Department formed the view by 21 December 2020 that the concerns were “unsubstantiated” and that there was no evidence to suggest X, Y and Z have experienced harm or evidence to suggest the children are at an unacceptable risk of harm at this point in time in the father’s care or household. It is appropriate to note that although the Department was aware of the Police’s intentions not to charge the father with an offence, the Department’s investigation could be seen as a very thorough and independent, including:
(i)an Officer being present at the s 93A interview of X on 3 November 2020;
(ii)interviewing the father on 8 December 2020;
(iii)interviewing the child on 9 December 2020 during which the child said the father uses a washer and soap; no one had tried to touch her private parts; she allowed him to wash her private parts on one occasion and put his fingers in her private parts when he was washing her butt; and that her dad’s fingers did not go in anywhere; and
(iv)interview with the father and his wife Ms B on 10 December 2020.
(l)There is no evidence of sexualised behaviour at the child’s school;
(m)The father has, in the pretext interview, and on two separate occasions in interviews with the Department, denied any inappropriate behaviour and asserts that he has not been involved in bathing X for some time – at least since the start of 2019 when “she had worms”;
(n)It is clear from the mother’s affidavit that she was disappointed in the ultimate conclusions reached by the Police and the Department, and that discussions between her and the child X continued to occur, for example:
(A)at paragraph 104, where the child said she missed her father, although the mother’s context is that, I infer, she missed her father touching her; and
(B)at paragraphs 114 to 116 on 17/18 January 2021 when discussions about X and touching her privates, seemingly all of a sudden arose;
(o)The mother gives evidence of the child’s “history of vaginal pain and redness” which the mother alleges began “around the time that Mr Allan began to have X overnight”, in late 2016 caused the parents to jointly attend the child’s General Practitioner on 16 December 2016 when medication, including Canesten cream, was prescribed. My interpretation of the evidence, and the father’s response (at paragraphs 23 to 28 of his affidavit filed 4 February 2021), does not amount to anything sinister than can be applied to the father’s conduct – although it was important for the mother in her affidavit, to time the occurrence of the child’s difficulties with the commencement of overnight time being spent with the father. This did no credit to the mother;
(p)at paragraphs 29 to 37 of the father’s affidavit he details the “care and routine at our home”. Despite the cross-examination by the mother’s Counsel (noting that the ICL did not cross-examination the father), there was little deviation from the father’s testimony. He made a proper concession that if the child did make “concerning comments” to the mother, it was proper for the mother to act protectively, but that as nothing happened he is unable to explain the child’s comments – save to speculate that the child was possibly referring to when, as a younger child, he would assist her with bathing and cleaning her – but always using a washer. The father conceded at times X “has walked into the bathroom while I was showering to ask me a question” but did not consider this unusual behaviour (paragraph 35). Frankly, neither do I.
To complete the factual matrix, on 17 August 2021 (for oral Reasons delivered ex tempore at the time), the mother’s Application to re-open was granted on a limited basis, and paragraphs 1 and 3 to 17 (inclusive) of the mother’s affidavit filed 19 July 2021 were adduced in this discrete hearing and were relied upon by the mother. That evidence related to new “disclosures” made by X on 23 June 2021, when the mother says after pointing to a small “statue of David” souvenir, X said, seemingly suddenly and without context, that:
(a)she could see his “willy”;
(b)“willies feel like slim but hard, like hard slime”; and
(c)when the mother asked her how she knows “what a willy feels like” she said she knows because she touches her daddy’s willy with her feet when she quietly gets into his bed at night.
The mother’s evidence at paragraph six reveals the mother continued to explore with the child – at times it could be said through leading questions – what happens next when similar comments were made to the mother to those made nearly eight months earlier.
Although the mother says she was “deeply disturbed and shocked’ by what X was telling her, she said she remained calm whilst engaging in more questioning of the child (see paragraphs 7 to 11).
The mother’s attempts to engage Suburb J CPIU did not result, at the time of re-opening, in any action by the CPIU although the mother says they said they would interview the child again.
In my assessment, considering the length of time since X had seen her father, and the manner of questioning, it is not possible to apply any significant weight to these comments if they are meant to act as some corroboration of an event, which at the hearing was uncertain as to time or place. Although the father did not wish to reply to the mother’s affidavit, little could be served by him doing so, where his earlier affidavit did refer to the child having seen him in the shower; to his evidence that the word “willy” not being used in his home; and to an acceptance that in times past (but not every night) this little girl has crawled into her father’s bed. I could not ignore the possibility, when doing so, that the child’s foot may have inadvertently come into contact with the father’s penis.
Because of the factual matrix set out above, the Police interview on 3 November 2020, shortly after the first alleged “disclosure”, is important evidence. It was viewed by the Court.
SECTION 93A INTERVIEW
Considering the child was nearly six years of age at the time of the interview, it was not surprising at times she seemed a bit uncomfortable, but the skilled Police Officers persisted sensitively with the interview, during which various (at times contradictory) statements were made during the over 30 minute interview, including:
(a)she feels safe at her dad’s house;
(b)Ms B and the father assist her to wash;
(c)the father “uses a special thing. He wets that”;
(d)he washes her butt (demonstrating the vaginal area) and the father uses his hand and sometimes he uses the special cloth;
(e)she was uncertain when the last time was that daddy used his hand to wash her butt and front privates, but said “no” when asked if it happened when at prep (which began in January 2020);
(f)she refers to sitting down with the water washing off soap and that her father’s hand goes “up and down”;
(g)by 10.50am (about 22 minutes into the interview), the child expressed a wish to stop the interview as she wanted “to go home”;
(h)attempts to ascertain if the child felt scared at her father’s home, the child gave a fairly clear response that noises “freak me out”;
(i)when the Police returned to the subject about daddy washing her, a question was raised about “does daddy do anything with his fingers”, after which the child demonstrated pushing around the vagina area;
(j)at this stage of the interview (from approximately 10.52am), the child’s comments refer to when she is “itchy”; and
(k)attempts to get clarification of when the incident (for the child says it only happened one time) occurred were unsuccessful, other than to respond to the suggestion by Police that it happened when she was six by replying “yes”.
The child’s response to Police questioning was vague and, as one might expect, lacking clarity or particulars as to time and place. The comments made by the child do not accord exactly with the comments the mother swears were made to her by the child on at least 26 October 2020.
Having said this, the child did say things, and did mimic actions, that could support, in my assessment, both vigorous washing (wherever) by the father or some inappropriate touching. This is not a case where it can be said no words of concern were uttered by the child to Police.
DISCUSSION
Sexual abuse allegations by young children, if made, are fraught with uncertainty due to their young age, developing verbal skills and diminished ability to link time and place with accuracy.
The child says to Police it happened on one occasion that she can recall, whereas the mother says the child says it happened “often”.
Yet this is a little girl who has a history of itchiness, soreness and redness; where the father did apply cream; where the father, when the child was younger, actively ensured she was clean by assisting with bathing her.
Mr Drysdale for the mother contends it is “entirely unlikely that X made up what she did in the bath”, and in circumstances where the father does not proffer any proper innocent explanation, he should not be believed when he says he has not bathed the child for two years or so.
However, if, as the child is said to have informed the mother, this inappropriate sexual behaviour by the father has been occurring regularly for some time, the lack of any hint of disclosure by the child to her primary carer (the mother) or to any other person since she has become more verbal developmentally over the last two to three years, makes no sense,
The father is in a household that includes three girls (when X is staying), and the older “siblings”, when interviewed by Police at school, raised no concerns at all.
I cannot accept that the father’s entire household have either turned a “blind eye” to repeated abuse of this little girl or would not be aware of it occurring.
On the evidence produced and tested, I am not persuaded, after giving careful consideration, that the father poses a risk at all (certainly not unacceptable) to X of sexual harm.
In making this finding, I have formed the view that there is not likely to be a future incident of sexually motivated behaviour of the father and, although I did not receive any evidence from the father’s wife Ms B, as the mother of two girls (and the step-mother to X), her interview with the Department Officers support her being seen as a protective factor. I do accept that if inappropriate touching or sexual abuse of X at the hands of the father was to take place it could have a significant adverse effect on X.
WHAT HAPPENS NEXT?
I propose to list this matter for an Interim Hearing before me at 9.30am on 30 March 2022.
Each party shall have leave to file one affidavit by 23 March 2022 of any further evidence of relevance since the proceedings were “re-opened” in a limited way in August 2021.
Their affidavit should contain a minute of interim orders for at least the next six months. I will expect to hear as well from the ICL as to any proposals for a family report and its timing. If the ICL is also prepared to offer an interim proposal for time between the father and X, that would likely be helpful.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 11 March 2022
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