BABINGTON & BABINGTON
[2019] FCCA 3029
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABINGTON & BABINGTON | [2019] FCCA 3029 |
| Catchwords: FAMILY LAW – Parenting – Mother alleged sexual abuse – no sexual abuse occurred – father alleged malicious fabrication of allegations – no malice rather pre-occupation and mistaken thinking – father’s mental health issues requiring supervision – risk and unacceptable risk – parental responsibility – children living in separate households. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 65DA, 65DAA, 117 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 |
| Applicant: | MS BABINGTON |
| Respondent: | MR BABINGTON |
| File Number: | SYC 1927 of 2017 |
| Judgment of: | Judge Bruce Smith |
| Hearing dates: | 30 July 2018, 31 July 2018, 1 August 2018, 2 August 2018, 3 August 2018, 4 October 2018 |
| Date of Last Submission: | 4 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies SC |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr Loschiavo |
| Solicitors for the Respondent: | Go to Court Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Apelbaum |
| Solicitors for the Independent Children's Lawyer: | Blumberg Family Lawyers |
ORDERS
Y ("Y")
The father shall have sole parental responsibility for the child Y ("Y") born on … 2005.
(i)This sole responsibility does not extend to changing Y’s living arrangements in a way that make it significantly more difficult for Y to spend time with the mother.
(ii)This sole responsibility does not extend to changing Y’s current school without the written consent of the mother.
(iii)This sole responsibility is subject to the obligation to notify the mother in writing of any decision not covered by orders 1(i) and 1(ii) above with respect to a major long term issues 28 days prior to giving effect to the decision, except in cases where it is not reasonably practical to do so.
Y shall live with the father.
Y shall spend time with the mother at such times as the parties shall agree between themselves in writing, and failing agreement as follows:
(a)During school term:
(i)Commencing after the ICL has had the opportunity to explain these orders to Y and until the end of the 2019 school year, each alternate weekend from Sunday 10am to 5.30pm;
(ii)Commencing at the start of the 2020 school year and starting from the second weekend following the end of holidays, from Saturday at 10am until Sunday at 5:30pm and each alternate weekend thereafter;
(iii)Commencing at the start of term 3 of the 2020 school year and starting from the second weekend following the end of holidays, from Friday after school until Sunday at 5.30pm and each alternate weekend thereafter;
(b)In addition to the above, during school terms:
(i)Each alternate Wednesday evening in the alternate week from the weekends above, from after school until 6.30pm;
(c)In addition to the above, during school holidays:
(i)For the long school holidays starting December 2019, from Saturday at 10am to 5.30pm and Sunday 10am to 5:30pm each week of the second half of the school holidays and until school commences in 2020;
(ii)Commencing in the school holidays after the first term of 2020, in each week of the second half of each school holiday from Friday 10am until Sunday 5.30pm and continuing;
(iii)For the long school holidays, starting December 2020, 4.30pm on Thursday until Sunday at 5:30pm each week of the second half of the school holidays.
The alternate weekend Y spends with the mother is to be the weekend that X is also with the mother.
The above time with the mother is subject to Y being able to attend his scheduled weekend sporting activities, at which attendance the mother shall facilitate herself or through an agent or through the father, and which sporting activity shall take precedence over time with the mother should it be in a location which makes compliance with these orders otherwise impractical;
In addition, despite the above, commencing immediately Y shall spend time with the mother or the father on the following special occasions if he is not otherwise living or spending time with them:
(a)Y’s birthday, whichever parent Y is not with, for 3 hours after school, and as agreed or otherwise from 12pm-4pm on a non-school day, and with X being present if X is not with the parent Y is spending this time with.
(b)X’s birthday, with X and the parent X is with, if Y is not with that parent, for 3 hours after school, and as agreed or otherwise from 12pm-4pm on a non-school day.
(c)The mother’s birthday, for 3 hours after school or as agreed or from 12pm-4pm on a non-school day.
(d)The father’s birthday, for 3 hours after school or as agreed or from 12pm-4pm on a non-school day.
(e)Father’s Day, as agreed or from 10am-4pm.
(f)Mother’s Day, as agreed or from 10am-4pm.
(g)Christmas Eve with the mother from 3pm to 8pm in odd years and with the father in even years, so that Y and X shall be together.
(h)Christmas Day with the mother from 8am to 2pm and with the father from 2pm 8pm in odd years and the reverse in even years, so that Y and X shall be together.
Further, Y may spend any such additional time with the mother during term time or holiday time as Y shall determine up to equal time, and the father shall do all things reasonably required to facilitate that additional time.
Further, Y may spend any such additional time with X during term time or holiday time as Y shall determine and the father shall do all things reasonably required to facilitate that additional time.
From the end of school term 2022, when Y will be 17, the above orders as to time Y is to spend with the mother will cease, and from that time Y may spend such time with the mother and/or X, whether during term time or holiday time, as Y shall determine and the parties shall do all things reasonably required to facilitate such time.
If Y misses more than 1 day of time per month with the mother due to sport, or for any other reason, then the parties shall arrange make-up time for that time lost in excess of 1 day.
If Y has a sporting commitment that requires travel outside the A School region, the parties may swap weekends so the father can transport Y to this commitment.
X ("X")
The parties shall share equally the parental responsibility for the child X ("X") born … 2011.
X shall live with the mother.
X shall spend time with the father at such times as the parties shall agree between themselves in writing, and failing agreement as follows:
(a)During school term:
(i)Commencing after the ICL has had the opportunity to explain these orders to X and until the end of the 2019 school year, each alternate weekend from Saturday 10am to Sunday 5.30pm;
(ii)Commencing at the start of the 2020 school year and starting from the first weekend following the end of holidays, from Friday after school until Sunday 5:30pm, and each alternate weekend thereafter;
(iii)Commencing at the start of term 3 of the 2020 school year and starting from the first weekend following the end of holidays, from Friday after school until before school Monday and each alternate weekend thereafter;
(iv)Commencing at the start of the 2021 school year and starting from the first weekend following the end of holidays, from Thursday after school until Monday before school, and each alternate weekend thereafter and continuing thereafter;
(b)In addition to the above, during school terms:
(i)Each alternate Wednesday evening in the alternate week from the weekends above, from after school until 6.30pm, so that this is not the same Wednesday night that Y spends with the mother;
(c)In addition to the above, during school holidays:
(i)For the long school holidays starting December 2019, from Friday 10am to Monday 6pm each week of the first half of the school holidays and until school commences in 2020;
(ii)Commencing in the school holidays after the first term of 2020, from Thursday 10am until Monday 6pm each week of the first half of the school holidays and continuing;
(iii)For the long school holidays, starting December 2020, for the first half of the school holidays;
(iv)Thereafter for the first half of all school holidays in odd numbered years and the second half of school holidays in even numbered years and continuing thereafter.
The alternate weekend X spends with the father is to be the weekend that Y is also with the father.
In addition, despite the above, commencing immediately X shall spend time with the father on the following special occasions if she is not otherwise living or spending time with them:
(a)X’s birthday, whichever parent X is not with, for 3 hours after school, and as agreed or otherwise from 12pm-4pm on a non-school day, and with Y being present if Y is not with the parent X is spending this time with.
(b)Y’s birthday, with Y and the parent Y is with, if X is not with that parent, for 3 hours after school, and as agreed or otherwise from 12pm-4pm on a non-school day.
(c)The mother’s birthday, for 3 hours after school or as agreed or from 12pm-4pm on a non-school day.
(d)The father’s birthday, for 3 hours after school or as agreed or from 12pm-4pm on a non-school day.
(e)Father’s Day, as agreed or from 10am-4pm.
(f)Mother’s Day, as agreed or from 10am-4pm.
(g)Christmas Eve with the mother from 3pm to 8pm in odd years and with the father in even years, and so that Y and X shall be together.
(h)Christmas Day with the mother from 8am to 2pm and with the father from 2pm 8pm in odd years and the reverse in even years, and so that Y and X shall be together.
Further, X may spend any such additional time with Y during term time or holiday time as X shall reasonably request and the parties shall do all things reasonably required to facilitate that additional time.
If X has a dance event while with the father the mother be permitted to attend to assist X in setting up and getting ready, and in the event travel outside of the A School region is required, the parties may swap weekends so the mother can transport X to the event.
The mother shall not suggest to or convey to X, directly or indirectly either herself or by any agent or knowingly allow any other person to suggest or convey to X, that X was abused in any way by the father.
The father with his consent, and solely for the purpose of avoiding anxiety in the mother despite the Court finding that there is no basis for such anxiety, will be restrained from performing the following tasks for X:
(a)showering or bathing X or being present when she is showered or bathed,
(b)toileting or assisting in the toileting of X,
(c)completely undressing X or being present when X is completely undressed;
(d)applying cream to X’s genital, perineal or anal areas.
That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Ms Babington born … 1978 and Mr Babington born … 1977, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born … 2011 (female) from the Commonwealth of Australia for the period until 5 December 2025.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.
Both children
In the event that either child expresses a wish to speak to their sibling or the parent with whom they are not living, the parent with whom they are living shall facilitate the requested telephone communication; and in the event that either child is unavailable for the telephone call the parent who has the care of the child shall ensure that the telephone communication is returned as soon as possible.
On no more than one occasion each day each parent is at liberty to contact the child who is in the other parent's care by telephone at any reasonable time and the parent with care of the child shall do all things reasonably necessary to ensure that the child is available to take that telephone communication and afforded privacy to do so.
Both parties are restrained from:
(a)denigrating the other parent or a member of their household or family in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third party who does so; and
(b)discussing these proceedings with either of the children except to advise them of the contents of any order that has been made about the time that they are to spend with each of the parents.
To facilitate the child/children spending time with each of the parents in accordance with these orders (and where time does not commence or end at a child's school) the changeover shall occur at the front door of each party's home. The parent wishing to spend time with the child/children shall collect them from the home of the other parent.
That each of the mother and the father must authorise any school that either of the children might attend from time to rooms to provide to both the mother and the father:
(a)Copies of all reports of the children;
(b)Copies of newsletters and announcements of all school activities or other material about the education of the children to both the mother and the father;
(c)Copies of all order forms for school photographs.
Each of the parents must authorise staff members of any school that the children might from time to time be enrolled in to discuss the child's progress with both parents.
A copy of these orders may be given to any school either child attends and shall be sufficient authority for the parties:
(a)to contact the schools attended by the children from time to time for the purpose of speaking to the teachers about the academic and sporting progress of either child.
(b)To contact the schools attended by the children from time to time for the purposes of obtaining school reports, notices and photographs relevant to either child.
In the event that either child is hospitalised, or receives medical attention for other than minor ailments, whilst they are in that parent's care, the parent with the care of the child / children shall notify the other parent, as soon as practicable in writing of the following details:
(a)The name, address and telephone number of the attending medical practitioner.
(b)The condition for which they were consulted;
(c)Diagnosis;
(d)Treatment rendered;
(e)Prognosis;
(f)Copies of any referral letters.
That each party shall keep the other informed as soon as practicable of:
(a)Any medical problem or illness suffered by either child whilst in their care, other than minor scrapes of colds.
(b)Any prescribed medication given to either child while in their care.
Each parent shall give all necessary authorisations required to permit any medical practitioner who treats either of the children to provide information to both parents about the health and welfare of the children.
These orders may be given to any medical practitioner upon whom either child attends and shall act as any necessary authority to permit either parent to obtain information from any medical practitioner who has treated either of the children about their health and welfare.
Both parents shall ensure that they facilitate the children attending their required school and extracurricular activities during time that they are spending time with that parent.
Each parent shall keep the other parent advised, in writing, of their current address, contact telephone numbers (including landline and mobile telephones), email addresses and advise the other parent, in writing, of any change to those details within 7 days of that occurring.
The father
Within 7 days of the date of these orders the father shall attend upon a general practitioner and:
(a)arrange to provide that general practitioner with a copy of;
(i)these orders;
(ii)a copy of the report of Dr B dated 31 May 2018.
(b)obtain from that general practitioner:
(i)a mental health care plan; and
(ii)a referral to a consultant psychiatrist.
(c)comply with that mental health plan until that general practitioner advises that no further treatment including monitoring is required.
Within 7 days of receiving the referral to a consultant psychiatrist outlined in above the father shall ensure that he makes and attends the first available consultation with the psychiatrist that he is referred to and shall thereafter:
(a)arrange to provide that consultant psychiatrist with a copy of;
(i)these orders;
(ii)a copy of the report of Dr B dated 31 May 2018.
(b)Attend upon all scheduled appointments;
(c)Comply with all reasonable treatment directions including acting on referrals to third party treatment, course and therapy providers;
(d)Take all medication that might be prescribed from time to time in accordance with the treatment directions;
(e)Remain engaged and attending upon appointments for as long as is provided for by the treatment providers.
Within 7 days of these orders the parents are to facilitate the children meeting with the ICL for the purposes of the ICL explaining the orders to the children.
Within 28 days of these orders the parties are to engage a family therapist with the prime focus of assisting the family to adjust to the orders made and in particular to assist Y to repair his relationship with his mother.
Within 6 months of these orders the mother is to pay the Legal Aid Commission of NSW the sum of $7,298.
NOTATIONS
(A)
Where these orders require notice or agreements to be evidenced in writing the sending of a text messages or emails between the parents reaching agreement is sufficient to discharge that requirement.
(B)The definition of "major long-term issues" means issues about the care, welfare and development of a child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)Y’s education (both current and future); and
(b)Y’s religious and cultural upbringing; and
(c)Y’s health; and
(d)Y’s name.
(C)The intention of these orders and the way in which they are to be interpreted is that the alternate weekends, Wednesday nights and holiday periods for Y and X to spend time with the non-resident parent will be in in alternative periods so that X and Y spend time with each other when either of them is spending time with the parent they are not living with.
(D) Pursuant to ss.65DA(2) and 62B 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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Babington & Babington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1927 of 2017
| MS BABINGTON |
Applicant
And
| MR BABINGTON |
Respondent
REASONS FOR JUDGMENT
1. Overview and summary
i. Introduction
The Applicant mother (“the mother”) is 41 years of age. She works part-time as a health care worker and lives in a three-bedroom home in the Suburb C area.
The Respondent father (“the father”) Mr Babington is 42 years of age. He works full time as a public servant and also lives in a three-bedroom home in the Suburb C area.
The parties met in 1994 when they were in year 11 at the same school. They began dating in about 1998. They were engaged in … 2001, married in … 2003 and commenced cohabitation in Suburb C.
They had the two children the subject of these proceedings. They are Y who is almost 14 and X (or “X”) who is almost 8.
They separated on about 22 February 2017 when the mother left the matrimonial home with the children because she had become concerned that “one or both of the children had been sexually abused by” the father.
The father denies these allegations.
Y is in year 8 at A School in Suburb C. Y self-placed with the father on about 11 March 2017. Y has continued to live with the father since then and spends time with the mother and X one day each alternate weekend from 12pm to 7.30pm.
At hearing the mother stated she no longer believed that Y had been sexually abused by the father. The parties and the Independent Children’s Lawyer (“ICL”) all agreed that Y should continue to live with the father on an interim basis.
X is in year 2 at Suburb C Public School. X lives with the mother and pursuant to orders of the Court, spends time with the father each Sunday from 9:00am until 5:00pm with such time supervised by the paternal grandmother.
Given the agreement concerning where Y should live, the majority of the hearing dealt with the appropriate orders for X, with each parent seeking to have X live with them.
The only witnesses were the parties and the single expert Dr B (“the expert”) who is a qualified psychiatrist.
ii. Major issues and findings
For reasons set out below, the major findings I have made are that:
a) the father did not sexually abuse X and does not pose any risk of sexual abuse to X;
b) the mother, though wrong, was not malicious in the making and maintenance of her allegations of sexual abuse;
c) while the mother poses some risk to X because of her pre-occupation with her false belief that X was sexually abused by the father, as the mother has never conveyed these belief’s to X, the risk that she will convey them in future is small and is not an unacceptable risk;
d) the father has mental health issues which also pose a risk to X because of the father’s reluctance to have psychiatric supervision and treatment given X’s young age, and that the father’s condition is manageable by treatment and the father is likely to comply with orders for treatment in this context;
e) the father did not undermine Y’s relationship with the mother;
f) Y should live with the father, with the father having sole parental responsibility, subject to certain caveats, and spend some time with the mother and X at the mother’s house; and
g) X should live with the mother, with the parties having equal shared parental responsibility as despite their difficulties in communicating they have managed so far and as it is protective for X, with X to spend unsupervised time with the father and Y at the father’s house.
2: What is the standard of proof?
The civil standard of proof on the balance of probabilities applies to these proceedings. That includes the requirements of s140 Evidence Act 1995 (Cth) to take into account the nature of the proceedings and the subject matter and gravity of the conduct alleged, which is the statutory successor to the common law requirement for “comfortable satisfaction” in Briginshaw v Briginshaw (1938) 60 CLR 336.
While the Court will not make a positive finding that sexual abuse occurred, or that a malicious allegation was fabricated, unless satisfied to the requisite legal and factual standard, in parenting proceedings the resolution of those issues though important remains ancillary to the paramount issue of determining what is in the child’s best interests.
Even in the absence of positive findings of abuse or malicious fabrication the Court will nevertheless proceed to determine whether there is a risk to the child, the magnitude of the risk and the consequences of the risk eventuating, and then to weigh the various required factors, including both the benefits of maintaining and costs of losing a relationship with a parent. (See M v M (1988) 166 CLR 69)
3: What was the background to the allegations?
Father’s mental health and family violence background
The mother advised the expert that the father had never hit her nor the children, but had abused her emotionally, mentally and verbally. She relied on two specific incidents about which evidence was given by both parties at hearing but which were not substantially denied by the father.
The first incident occurred in 2007 when the father attacked his push bike with an axe. The second was in about 2010 when he punched a hole in the kitchen door. The mother could not explain the first incident and presumed the second arose out of anger. Other than this, she said that the father would sometimes pick on her for not being good enough or put her down in a disrespectful way in front of the children.
In addition to these incidents and his general disrespectful conduct the mother set out in detail the father’s long history of intermittent mental health concerns, including a provisional diagnosis of type I bipolar disorder for which he had been prescribed medication and he had later unilaterally decided to cease taking.
The mother described her experience to the expert as being on the “rollercoaster” of “highs” and “lows” of life with the father.
In particular she described his behaviour at times as being “Gothic”, by which she meant Mohawk haircuts, wearing a black trench coat, listening to music with themes of death, suicide and depression. She said these episodes could last for weeks to months.
The mother also said that the parties had a satisfying sex life prior to Y’s birth, but afterwards things changed when the father wanted to try “strange things” including anal sex, sex with multiple partners and watching pornographic videos together.
January to February 2017 before the mother developed her belief X was being sexually abused
The mother gave evidence that in January 2017 the father again started dressing in “Gothic” clothing, and told her he was going to get “permanent screw in vampire fangs” and “a hook in my back for suspension”, and that on three occasions she found him sobbing.
At about this time the mother said the father told her that “I’m clinically insane. I’m not right in the head” and that he “couldn’t do normal”. She said that he was having mood swings, from very angry or agitated to very cheerful in a short time without external influence.
The father’s evidence was that he spoke to the mother about taking a “step back in the marriage” in late January or early February 2017.
The father told the expert that he raised with the mother the:
way he was feeling, explaining that he wanted to take some time away from the family in order to find himself again. He believed that he would be a better father and husband if he were able to feel better about himself. Mr Babington had hoped they would have a discussion about this, but he stated that Ms Babington was very upset and brought up the topic of separation.
16-17 February 2017
On 16 February 2017 the father got a stud piercing in the area below his bottom lip and above his chin and told the mother he had been faking being happy in the relationship.
On 17 February 2017, the mother saw her GP Dr D and told the doctor the father had bipolar disorder, he was refusing to get treatment, also he was trying to distance himself from her and the children, and finally that she was concerned that he may be having an affair. This was 2 days before the mother first began to suspect the father of sexually abusing X.
4: What is the evidence that the father sexually abused X?
i. Introduction
The mother set out the material on which she based and bases her belief that X had been sexually abused by the father under the heading “Sexual Abuse of the Children” in her trial affidavit. That included material which subsequently lead her to believe Y had also been sexually abused by the father.
Prior to preparing her trial affidavit the mother was aware of all of the matters raised by the father and the ICL, as considered in the following section, to argue that there was no reliable evidence that X had been sexually abused, including the expert’s opinion that she was not persuaded that sexual abuse had occurred.
The mother maintained her allegations of sexual abuse in evidence at hearing knowing this contrary information.
In her final submission the mother did not rely upon all of the evidence set out below. The mother also gave evidence at the hearing that she no longer believed that Y had been sexually abused by the father.
The evidence not ultimately relied upon needs to be and is considered below as it was relevant to the formation and reliability of the mother’s belief. The evidence not relied upon will be identified in due course.
The essence of the mother’s case is that there was a “constellation of events”, each of which may not carry great weight, but which, considered as a whole, either establish that X was sexually abused by the father or require the Court to find that the father poses an unacceptable risk of sexual abuse to X.
That “constellation” is to be viewed, on the mother’s case, against the background of the father’s mental health concerns, and his abnormal behaviour and statements in the lead up to the formation of her suspicion on 19 February 2017 as set out above.
The mother relied upon the following specific events in forming her belief, although not all of these were relied upon in closing submissions made on her behalf.
ii. Specific evidence
a. X’s drawings – 19 February 2017
The mother’s evidence in chief was that it was February 2017 when she first became concerned that X had been sexually abused.
On Sunday 19 February 2017 X was in the care of the father during the afternoon. On returning home the mother noticed X had done two drawings primarily in black. She said that from her experience as a health care worker:
It is my understanding that when children use a lot of black in their drawings it is an indication that they have been abused.
The mother flipped through X’s scrapbook of drawings and found a “greenie-yellowy” coloured drawing. The mother’s evidence was that “I perceive this to be a drawing of a man’s genitals”. For ease of reference, I will refer to this as “the drawing”.
Finding that X had drawn what she perceived to be an adult male’s genitals, as well as black drawings that she took to be indicative of abuse, the mother became concerned.
b. Cut in X’s vagina – 19 February 2017
That evening X told the mother “I have a cut inside my vagina" and complained while being bathed that the cut stung. The mother inspected the area and saw what she took to be a 2-3 cm cut on the right inside of X’s vagina. The mother said that X said to her “I didn't make the cut, I wasn't looking.''
c. First medical examination – 20 February 2017
The following day, Monday 20 February 2017, the mother took X to a GP because of the cut. The GP took a urine sample and a swab and told the mother that “X has a bacterial infection.”
d. Father’s first non-response and gulp
The mother says that evening she said to the father
I'm very concerned about X. She has thrush and she has a cut in her vagina. Was she riding her bike outside or climbing a tree while I was out on Sunday? She said that the father did not respond in words; he made a loud gulping sound.
The mother apparently interpreted the alleged non-response and “gulp” as evidence of the father’s consciousness of guilt about the cut.
e. “Semen” on X’s pillow – 21 February 2017
The mother’s evidence was that the next day, Tuesday 21 February 2017, she observed marks on X’s bed sheets and on her “froggy” pillow pet toy.
She asked X about the marks and X responded “wet feet”. The mother said they didn’t look like wet feet marks to her.
The mother then smelt the pillow toy. Her evidence was that the “pillow pet toy smelt to me as though it had semen on it. I also observed two spots on the toy which I perceived to be dried blood.” In cross-examination the mother confirmed that “it smelled very strong of semen” and that she was very sure it was semen.
There is no doubt that smelling semen on X’s pillow was, unsurprisingly, significant evidence in the mother’s mind of sexual abuse.
f. Father’s second non-response and disgusted face
The mother’s evidence was that she then asked the father if he knew what was on X’s sheets. She said that the father “did not respond but made a disgusted face, looked down at the ground, then walked off.”
She says she told the father “go sleep in the back room. I do not want you to sleep in the bed with me”, and that the father then agreed to leave the marital bedroom while X slept with the mother.
The mother took the father’s non response, “disgusted face”, walking off, and possibly his agreement to leave the marital bed, as further evidence of consciousness of guilt in the context of her belief there was semen on X’s pillow.
g. Second medical examination – 22 February 2017
The next day, 22 February 2017, in view of all of the above the mother took X for a medical examination at the local hospital and reported her concerns.
She took the “toy” pillow and the sheets to the hospital for testing. No testing was done, but they were packaged for forensic integrity purposes and then returned to the mother.
At the mother’s request a doctor conducted an examination of X’s genital region. On the mother’s case it was an external examination of the vulva first and then a non-invasive vaginal examination. She said that the doctor said to her words to the effect of “this could be a cut, that area heals quickly. If you look at her hymen you’ll see that it is not bruised.”
It was not suggested that X made any disclosures. The discharge summary recorded “vaginal thrush but nil other abnormal findings.”
The mother says that she was told by hospital staff that “"JIRT are not coming" and that ''It has all come from the mother; we need more, like a disclosure from the child. We can't just go on your gut instinct”, and gave her a phone number for sexual assault counselling. [TA x AM at para 48, 52 and 56]
I note that “JIRT” is the acronym commonly used for the “Joint Investigation Response Team”. This is the multi-disciplinary team co-ordinating investigations of child sexual assault. The hospital as a mandatory reporter would have been required to notify the mother’s allegations of sexual abuse.
The mother told the hospital that she was going to stay at a safe house that night rather than returning home.
h. Separation
The mother’s evidence was that separation occurred on 22 February 2017 when she took the children to stay with her friend “Ms E”. The mother did not return to the family home until the father had vacated it.
As the hospital and JIRT would not further investigate her concerns, the mother made arrangements for the children to see a school counsellor the following day.
i. School counsellor – 23 February 2017
The children saw their school counsellor for about 2 hours on 23 February 2017.
The mother’s evidence was that after spending two hours with the children and her the school counsellor said words the effect of “I’m very worried about X but not about Y.”
j. Curious George and the “monkey toy”
On the 23 February 2017 whilst at Ms E’s residence, the mother said that X was watching the “curious George” cartoon, which is about a monkey, and that X started calling the main character “Penis George”.
Later that day while X was holding a monkey toy, which Ms E had given her, the mother said that X said “this monkey’s name is Mr Babington. Mr Babington is my daddy” and then “moved the toy with both hands and said words to the following effect “I do this till Daddy gets hard.”
The mother interpreted this as X identifying the toy as her father and indicating that she used her hands to masturbate the father’s penis until it became erect.
k. “midnight” and “thrusting” whilst asleep
The mother’s evidence was that “after this (monkey George incident) X behaved unusually at night time.” This included asking “is it midnight yet?” … “because daddy trains people late and I’m scared.”
The mother’s evidence was that later that night, “at about midnight”, X began to move around in the bed and talk in her sleep saying “Y wait it’s not your turn”, noting the mother took as the reference to Y as being to Y, and apparently to X having nightmares during which she “began thrusting her pelvis and moving her arms in a pushing motion” for 45 minutes before waking up crying and distressed.
The mother apparently interpreted X’s reference to midnight and to the father training people and to being scared as being a reference to being scared of the father abusing her at midnight, and then the fact that “at about midnight” while asleep X moved about in the bed in the manner described as evidence that X was dreaming of the father and acting out recollections of or struggles against sexual abuse by the father.
l. Community health centre
On an unknown date after separation the mother said that she “gave an account” of these events to an independent team manager at a local community health centre when trying to arrange services for the children. The manager said to her words to the effect of “it sounds like your daughter has been raped.” This mother apparently relies on this as independent expert confirmation that X was sexually abused.
m. Giving police the evidence – 5 March 2017
The mother gave evidence that on 5 March 2017 she attended Suburb C Police Station, made a report, and provided them with X’s stained sheet and pillow toy for testing in order to confirm the presence of semen. At that time she also provided the picture and the two dark pictures and made arrangements for X to be interviewed by police.
n. No disclosures to mother
The mother gave evidence that the mother’s brother, X’s uncle, told the mother that X had told him that “she only tells Y their secret”.
It is not entirely apparent how the mother relied on this. It may be that she was of the view that X had not made disclosures of sexual abuse to her, or anyone else, because X only tells Y her secrets, so that the absence of disclosures can be discounted. The mother said that she has told X that X can tell her anything.
The mother gave evidence that
X has not made any direct disclosures to me. However, the comments she has made as outlined above, her behaviour, and the items I found in her room have caused me to believe she has been sexually abused.”
The placement of this evidence in her trial affidavit followed the matters set out above and precedes the matters set out below, however, the matters below were also identified by the mother under the heading “Sexual Abuse of the Children” and so are also relevant to the mother’s belief.
o. The “Joker”
The mother’s evidence was that on “on at least two occasions in about January and February 2017” X had said words to the effect of “I had a nightmare and the Joker was killing me” and that on 7 March 2017, in respect of her nightmares, X said “… A joker is scary and tries killing me. He has Joker on his undies. It scares me lots of times”.
It was common ground that the father had a pair of underpants with a picture of the “Joker”, from the Batman comic series, on them which he received for Father’s Day in 2016. The father gave evidence he threw out the underpants “just after Christmas” of 2016, whilst the mother’s evidence was that he continued to own and, by inference, wear them until February 2017.
The mother’s case is that this was evidence that X was scared of the father, inferentially because of conduct that occurred when he was wearing only his Joker underpants and connected to his sexual abuse of X.
p. X’s challenging behaviour in 2016 and 2017
The mother gave evidence that between about 2016 and 2017 X exhibited some challenging behaviour including having bitten Y and the mother, sleeping on the floor with a sheet wrapped around her, and spreading the toys out on a bed in the space where she would normally sleep. She gave evidence that the father said that X would “end up in Juvie by the age of ten for biting” in the tone which did not cause mother to think the father was being humorous.
It is not clear how this is said to be evidence of sexual abuse of X by the father.
q. X’s history of thrush
The mother gave evidence that
X has repeatedly contracted thrush. I do not know what is because these repeated thrush infections. However, Mr Babington has also repeatedly complained of having itchy genitals.
The mother seems to be seeking that an inference be drawn that X’s thrush was caused by genital contact with the father who also had “itchy” genitals, further supporting the allegation of sexual abuse.
r. Y’s red anus
The mother gave evidence that on three separate occasions before Y was nine years old he had an “unexplained red anus” to which she applied cream. She stated that “I do not know what caused this redness. I now hold concerns that may have been the result of abuse by” the father.
The mother stated that in 2016-17 Y was withdrawn and sad and that she “repeatedly tried to engage him in conversation about this, without success” and also sent him to school counselling, noting that he was also being bullied at school at that time.
s. X’s sexualised behaviour in 2016 and 2017
The mother gave evidence that X continued to “display what I would characterise as sexualised behaviour. I have observed her insert her fingers in her vagina in a manner which I perceive to be masturbating…”.
The mother continued that
X has been diagnosed with genital psoriasis which affects the outside of her vagina but not the inside, and I therefore say that inserting her fingers into her vagina is not done to scratch.
The mother seeks an inference that this behaviour cannot be explained by X discovering positive sensations from inserting her finger in her vagina while in the process of applying cream to the vulva, but must have been something X learned during the process of being sexually abused by the father.
The mother also said that X’s school teacher had said to her that
“If a boy hugs X at school she kisses him in response. There’s been a problem with the class in general with girls holding boys down and kissing them, and X has been involved in this.”
The mother apparently seeks an inference that this conduct by X, but presumably not by the girls at her school in general, is evidence of sexualised behaviour resulting from her sexual abuse by the father.
5: Does this evidence establish that the father sexually abused, or is an unacceptable risk of sexual abuse to, X?
i. Introduction
Despite her beliefs, the mother opened the case with written submissions that:
“the mother concedes that it is unlikely that the court would be able to make a positive finding that sexual abuse had taken place. Finding that X is at an unacceptable risk abuse in her father’s care would still be open to court in those circumstances.”
The father’s and ICL’s, case is that this evidence does not establish that there was sexual abuse of X by the father, nor raise a concern that he may be an unacceptable risk, because upon careful analysis no piece of the constellation stands up.
In effect, that while there are cases when many small and even apparently insignificant pieces of evidence can, when taken together, have significantly greater weight than the apparent sum of the individual pieces, this is not such a case.
ii. Specific evidence to date of separation
In her final written submissions the mother relied upon: the uncontested evidence that the father was having a mental health episode and saying unusual things and having a facial piercing inserted; the fact of the cut to X’s vagina occurring when in the father’s care and his ability to provide an explanation for it at the time; the Joker events; the nightmare and thrusting; and the Monkey George event.
Although the mother’s final case was refined in this way, given the seriousness of the allegations and the manner in which the mother formed and it appears in her mind has maintained these beliefs, it is appropriate to go through all of the mother’s “evidence”.
a. Mental health episode
The father having a mental health episode of itself, and in the absence of any evidence of any prior sexualised conduct towards his children or any children when in the midst of such an episode, is of no weight in establishing X was sexually abused by the father.
b. X’s drawings
The mother agreed that X had been asked what the picture was of, including when subsequently interviewed by police on 14 March 2017 about the 3 drawings, and had never said that it was a picture of a man’s penis or genitals.
In cross-examination when asked of the drawing whether “that could be anything?” the mother said “Possibly”.
Having reviewed the drawing, while it might be possible to interpret it in abstract art terms as a man’s genitals, that is not an obvious interpretation. It is equally consistent with a 6 year old’s scribblings.
The mother is not qualified to give expert evidence that a child using a lot of black in a drawing is an indication of abuse. No such expert evidence was called.
The expert stated in oral evidence that the drawings were “equivocal’ and that “the literature shows us that children’s drawings are not really reliable, and there’s no evidence base … that they have any scientific validity.” The expert conceded that psychologists do use drawings to elicit information from children, but stated that if at the time of the drawing it was not being done in the context of someone eliciting information in that manner these drawings could not be relied upon in the way the mother sought to. The expert placed no weight on this evidence.
Given that X when asked did not identify the picture as a picture of a penis, as well as my own observation that the drawing is consistent with a scribble, and the expert’s opinion, I am satisfied that no weight at all can be given to these drawings as evidence that X had been sexually abused.
I note that in placing weight upon X not describing her drawing as being of a penis, I take into account what I have determined further below when considering X’s disclosures to the school counsellor, and also that the expert placed considerable weight upon the reliability of X’s statements to her that the Joker not being X’s father, as also set out below.
This is not relied upon in the mother’s legal submission.
c. First medical examination
The results of this examination do not provide evidence to support the allegation of sexual abuse.
This is not relied upon in the mother’s final submission.
d. Cut in X’s vagina
The mother conceded in cross-examination that X told the police, when questioned on 14 March 2017, that the cut occurred when she was riding her bike. X told the police she “got the cut when she was riding her bike” and the police noted “[w]hen speaking about her father and brother … her face would light up and she was only too happy to speak about them”, and also that no disclosure of sexual abuse was made to police.
Interestingly, “Was she riding her bike” was the first options for how the cut might have occurred when it was put to the father. The mother did not give evidence as to whether or not she had questioned X about the cause of the cut beyond the statements set out above, and the cross examiners were not required to cross examine the mother in the dark.
The alternative hypothesis for the cut, which was put to the father in cross examination and rejected by him, i.e. that the cut was caused by the father’s chin piercing when he placed his face against X’s genitals, has no evidence to support it.
I accept X’s evidence to police that she suffered a cut when she was riding her bike, noting my comments above and below about the reliability of X’s evidence.
The fact that this cut occurred on a Sunday while under the father’s care and that he could not provide an explanation to the mother “at the time” are irrelevant to the issue of sexual abuse, but may be relevant to the question of whether or not the mother’s allegation was malicious.
Accordingly no weight can be given to the cut to X’s vagina.
e. Father’s first non-response and gulp
In cross-examination, the father denied the alleged “gulp” when asked about the cut. His evidence was that he thought he had said that X might have been climbing trees.
In light of my findings regarding the cause of the cut, even if it were accepted that the father “gulped”, it cannot be evidence of consciousness of guilt for causing the cut by reason of performing acts of sexual abuse.
Accordingly no weight can be given to the cut to the alleged first non-response and gulp.
This is not relied upon in the mother’s final submission.
f. “Semen” on X’s pillow
The “semen” samples were tested by police. The mother was advised by police on about 22 March 2017 that the tests were negative.
The police summary reported that:
“presumptive and confirmatory semen tests conducted, both negative for the presence of semen. Ms Babington, mother of Y/P contacted and appraised of outcome in forensic examination. Ms Babington also informed as forensic results found were negative on both items the matter will be suspended and no further investigation be conducted."
The mother did not include this fact in her trial affidavit.
This is despite the fact that not only was this information conveyed to her in March 2017, but also that she knew at the time she prepared her affidavit that this police material was available to all parties and that the above text was specifically quoted in the expert’s report, which the mother had read.
In cross examination the mother first said that she had provided both the sheet and the pillow toy to the police but that she believed that only the sheet had been tested, but on being shown the police material set out above conceded that both the sheet and the toy were tested.
Later in her evidence she stated of this testing: “I don’t believe the police make mistakes when they test things”, but continued that “just because it came back negative, in my opinion, it doesn’t mean that abuse did not happen.”
This is not relied upon in the mother’s final submission.
To the extent that it may remain in issue, I prefer the objective evidence of scientific testing by independent police forensic officers, the scientific validity of which was not contested at trial, over the mother’s subjective perception that she was very sure she smelled semen on X’s pillow toy.
I am satisfied that there was no semen on X’s sheets or pillow toy and that no weight can be given to this evidence.
The mother’s insistence in relying upon her perception of the smell of semen, even at hearing, despite being aware of the exclusion of that evidence by police forensic testing, is relevant to the questions of her motivations and mental state, and to the way in which she has apparently continued to seek to consider the “evidence” in to, without considering whether each piece of evidence is reliable. That will be considered further below.
g. Father’s second non-response and disgusted face
Given the above finding that these were not semen stains, I find that no weight can be given to the mother’s perception of the father’s reaction to her questioning as evidence of consciousness of guilt when faced with a question about what these stains were.
It may be that he did make a disgusted face or that may have merely been the mother’s perception. However, if he did it may have been disgust at the inference that he was sexually abusing X and had left semen stains on her bed.
This is not relied upon in the mother’s final submission.
h. Second medical examination
The hospital and the examining medical practitioner were on notice of the allegations of sexual abuse. No disclosures were made by X.
No evidence of sexual abuse was recorded by the examining medical practitioner. No further inquiries were considered necessary. The medical examiner told the mother in this context that “…If you look at her hymen you’ll see that it is not bruised”. The expert noted in her report that if such bruising was present it “may be indicative of sexual intercourse”.
The absence of intercourse does not, of course, exclude other sexual abuse. Nevertheless, this second medical examination does not provide any positive support for the allegation of sexual abuse of X by the father.
Further, the absence of disclosures by X here is relevant, particularly when considered in context of the disclosures made to the school counsellor as set out below.
This is not relied upon in the mother’s final submission.
iii. Separation and mother seeking evidence of sexual assault
In cross-examination the mother candidly agreed that it was fair to summarise her actions from 19-22 February 2017 as “for consecutively four days, you have made or sought to obtain evidence of sexual assault.”
The mother concluded on 22 February 2017 that X had been sexually abused by the father. She took the children and separated from him and made notifications of sexual abuse, based on her perceptions:
a)that a drawing which X does not say is a penis and which does not appear to be a penis was of a penis; and
b)that some black drawings which no expert evidence supports as being indicative of abuse in this case, were evidence of abuse; and
c)that the cut to X’s vagina was caused by the father’s chin piercing rather than by X having an incident with her bike, noting X’s subsequent evidence being that it was caused by her bike and there being no evidence from the mother of what X told her had caused the cut; and
d)of the father’s response when asked about the cut to X’s vagina; and
e)that there was a strong smell of semen on X’s sheets and pillow, despite X telling her that it was wet feet stains, and noting the subsequent exclusion of semen through forensic testing; and
f)of the father’s response when she asked about these stains;
and despite
g)the absence of disclosures by X to her; and
h)two medical examinations finding no evidence to support her concerns and the absence of disclosures by X.
For the reasons set out above, and taking into account subsequent events including the exclusion of the stains as semen which were not known to the mother at that time, I am comfortably satisfied that at the time of separation there was in fact no evidence that the father had sexually abused X.
I accept, as did the father in his oral evidence, that if the mother genuinely, albeit wrongly, perceived that the stains on X’s pillow toy strongly smelled of semen it was reasonable for her to act protectively and to have X medically examined and to have the sheets and pillow toy bagged by the hospital and provided to police for testing.
iv. The reliability of the mother’s perceptions
The father relied upon the mother’s concession that she was looking for evidence of sexual abuse during that period, and on the inaccurate nature of her subjective perception of the “evidence” up to that point in time, and that in her search for “evidence” during this time, to call into question the reliability of the mother’s subjective perceptions and to submit that the mother was predisposed if not determined to interpret everything she saw to confirm her belief that X had been abused.
I accept that submission. The question of whether this was conscious or unconscious behaviour will be considered further below.
The father relied upon these events to put in issue the reliability of the mother’s perception of subsequent events which she relies upon in support of the allegation, particular where the Court is solely dependent upon the mother’s report of her observations of the event. The father also relied upon the expert’s opinion, detailed later, that the mother has a pre-occupation with the allegation to support this argument.
Given the above findings, which show that the mother’s perception of events including her sense of smell appear to be impaired by her pre-existing view that sexual abuse did occur, I accept that the mother’s perception of events relating to the allegation of the father’s sexual abuse of X, and so the further evidence considered below, must be treated with caution when it is reliant solely on her evidence of her perceptions.
I am not satisfied that the need to treat this area of her evidence with caution applies to the mother’s perception of other events. This appears to be related primarily, if not solely, to the mother’s pre-occupation with this issue.
v. Specific evidence after the date of separation
I will continue the numbering of specific items of evidence from above.
i. School counsellor
In cross-examination the mother agreed that neither child disclosed any abuse to the school counsellor, although the mother put the caveat on her answer that the counsellor was a stranger to the children.
In cross-examination the mother agreed that she had read the expert’s summary of the FaCS records of 23 February 2017, which appeared to record information from a person at X’s school. The expert inferred that this was probably the school counsellor or a person acting on information provided by the counsellor.
I have reached the same conclusion as to the likely reporter, and therefore accept this as reliable evidence of what occurred during the school counselling session.
“X had remembered that she went to the hospital on Wednesday (22/02/17) and said that this had made her sad. The caller stated that X was shown a doll called F and when asked to show where on F the sad thing had happened, she pointed to the area between F’s legs. When asked who was with her at the time, X said "Mum" and also "the doctor".
In my opinion this is significant evidence.
It showed that X was willing to disclose to a stranger that she had been touched in the genital region in a way that made her feel “sad”. Further, that she was willing to make the disclosure when one of the people involved in the touching was one of her parents. It was also relevant that X did not include in her disclosure the touching of her genitals by each parent in the usual course of washing her or applying ointments to her genitals, which had previously occurred, but rather identified an unusual and unpleasant event.
I find that X, though only 5, was old enough and confident enough at this time, the day after the mother left the house with the children, to disclose inappropriate touching of her genitals to a stranger including by a parent.
From this I infer that the fact X did not make any other disclosure at that time, or to the hospital, or later to the police, in the context of her proven willingness to make such a disclosure, including about a parent, is significant evidence supporting the father’s case that he had not sexually abused X.
I also infer that it is likely that had the father performed cunnilingus on X as alleged by the mother causing her a cut, it is likely that X would have disclosed this, further supporting the finding above that the cut to X’s vagina was caused by her bike, as X has stated.
j. Suburb G community health centre
The mother could not identify the date of this consultation in cross-examination, but did confirm that it was post-separation.
The mother confirmed that the staff of the centre did not examine X but relied solely on the mother’s description. It is not known precisely what the mother told this manager, but the reasonable inference is that she told the manager about her perceptions as set out above, including about the drawing of a man’s genitals, the unexplained cut, and of the strong smell of semen on X’s pillow toy.
Whilst this opinion appears to have confirmed the mother’s beliefs, as it was given by an unknown person of unknown qualifications or experience, and appears to be based purely on the mother’s then perceptions, including the incorrect perception that there was semen on X’s pillow, no weight can be given to it as expert or lay opinion evidence that X was sexually abused.
k. The “Joker”
The expert asked X about her Joker dream in the context of asking about her good and bad dreams:
“X mentioned a dream in which she sees a ''joker". I asked her to tell me more about this "joker'' and she described him as a man with green hair wearing a purple shirt, a pair of black pants and a pair of pointy, black shoes. I asked X if she knew who this "joker" was and she said that she did not. I went on to ask if the "joker" was perhaps her father, to which she answered an emphatic "no" in a tone that indicated she thought my suggestion was silly or even ridiculous.”
The father’s case was that the children had access to a DVD called “Suicide Squad” which had a picture of the Joker on it which was as described by X. A copy was tendered. I note that in the DVD cover tendered the joker is not wearing black shoes but otherwise the description matches that given by X to the expert.
Although the mother in cross-examination initially denied that this DVD cover was where X could have become scared of the joker, when shown a copy of the movie cover with a picture of the Joker on it she agreed she had given that to Y and that X could have seen it.
Eventually when asked about X’s statements to the expert, she said:
“…On reflection, do you still have concerns that the Joker nightmare X had is related to sexual abuse by Mr Babington?” Not necessarily the nightmare, but there are many types of sexual abuse.
So you don’t have that concern related to the Joker nightmare? No…”
The mother agreed that she had read the expert’s report before preparing her affidavit and further that after reading the expert’s report no longer had concerns that the Joker was the father, but included this material in her affidavit:
“…So why do you refer to the Joker nightmare in your trial affidavit?
Everything helped paint the picture.
But the Joker nightmare is referred to under the chapter “Sexual Abuse of the Children”, yes?
Yes.
So did you put it under that chapter because it related to sexual abuse or possible sexual abuse by Mr Babington?
Well, I still believe that X has been abused by her father. There has been too many situations that I can’t explain. Does that answer the question? …”
Whilst this was relied on in the mother’s final submission, given the mother’s concession and X’s statement to the expert, I give no weight to the evidence of the joker dream as being evidence that X was sexually abused by the father.
This was the second time the mother agreed that something she included in her affidavit as evidence of sexual abuse was not in fact evidence of sexual abuse, but stated that she thought it should be considered because disproving one piece of evidence did not disprove that there had been sexual abuse.
l. X’s statements about “midnight” and “thrusting” whilst having nightmares
The expert stated in oral evidence that not much could be drawn from watching a child shake at night.
The mother’s interpretation of X’s “thrusting” at midnight has a number of logical difficulties.
Firstly, as X would have been asleep she would not have known it was midnight when she started moving. Secondly, X’s thrusting was apparently interpreted to indicate sexual activity of the kind involved in penetrative sex but there was no evidence of vaginal penetration on medical examination, thirdly, X has never indicated to anyone that her dreams or nightmares were sexual in nature and this was explored by the expert.
When asked about the dreams in cross examination the mother said:
“…Is it possible that she was moving about in a random motion during the nightmare?---
No. First, she started doing this like she was pushing someone away, and then her hand went like this like she was resting on someone’s shoulder and then the pelvic extensions started. She was laying flat on her back, pelvic full extensions for 45 minutes to one hour, and then she was very distressed when she woke up at the end of that nightmare. And I comforted her….”
This was relied upon in the mother’s submissions.
I am satisfied that no weight can be given to the mother’s interpretation of X’s random movements while asleep as evidence of sexual abuse by the father.
j. On X’s challenging behaviour in 2016 and 2017
This evidence was not relied upon or developed in submissions. I give it no weight.
k. X’s history of thrush
This evidence was not relied upon in submissions. I give it no weight.
l. Y’s red anus
This evidence was not relied upon in submissions. I give it no weight.
The fact that the mother subsequently developed this concern that the father sexually abused Y and included this as part of the evidence in her case, despite no disclosure from Y and based upon his having had a red anus occasionally some years previously, is also relevant to an assessment of the way in which the mother interprets “evidence” and to the father’s case that the mother’s perception of events relevant to sexual abuse must be treated with caution.
Whilst accepting that Y’s positive response to his father was suggestive that there had been no sexual abuse, the mother did not apply that reasoning to the evidence of X’s similar positive response to the father.
m. X’s sexualised behaviour in 2016 and 2017
In cross-examination the mother agreed that the only times she has seen X with her fingers in her vagina were times when she was observing X applying cream for the psoriasis.
Given the reasonable alternative hypothesis that X has discovered her vagina for herself in the course of applying cream to the vulva, I give this no weight as evidence of sexual abuse.
The evidence regarding X joining in the general conduct of “girls holding boys down and kissing them” was not specific to X.
This evidence was not relied upon in submissions. I give it no weight.
n. Curious George and the “monkey toy”
The other person who apparently saw this event was not called to give evidence.
The mother was asked in cross examination whether X would have understood what the adult concept of “get[ting] hard” meant:
“…Do you think that X when she was five understood what the word hard means in that sense?
Well, for her to say that with the monkey, I’m led to assume that she knows a male gets hard and she knows what to do to get a male hard.
So she understands what an erection is?
From what she said with the monkey, I think so, and she’s only five years of – she was five years of age then…”
The mother demonstrated the action she said she observed in the witness box which was noted by the Court on the transcript as:
“… [His Honour] So the witness has her hands together – and I don’t think it’s 20 centimetres. I would say it’s probably 10 centimetres, at most, apart and then she has got the hands opposed to each other and she is making a movement from her wrists with her forearms not moving but her hands moving through a range of motion - - -?
- - - Yes.
[His Honour]- - - Through the natural range of motion through the hands back and forth…”
The ICL’s submission was that the action demonstrated by the mother of lifting the toy up and down whilst holding the object steady in the hands was not indicative of the sexual action of stroking inferred by the mother. In effect what was demonstrated was just a toy being held while a child moved her hands up and down.
The ICL and the father also submitted that caution should be exercised given the words attributed by the mother to X as advised to police and FaCS were different to those in her affidavit.
In her affidavit the mother said X said:
this monkey’s name is Mr Babington. Mr Babington is my daddy… I do this till Daddy gets hard
The mother was recorded as telling police on about 23 February 2017 that X said:
“I wait for daddy to go hard”
The mother said that the police must have mis-recorded her because
“I’ve reported this to everyone using exactly the same words that my daughter used.”
The mother as recorded as telling the Department of Family and Community Services on about 1 March 2017 that X said:
“You have to wait until daddy gets hard.”
The mother maintained that her recent statement of what X said was correct and that the contemporaneous statements were incorrect.
The mother’s submission was that the father in evidence conceded that “…X appeared to be talking about him getting an erection when playing with the monkey”. The father was asked whether, when he read the mother’s affidavit, he inferred the mother was talking about him getting an erection. His answer was “I don’t know” When then asked whether if he had seen X doing what the mother described she perceived, he would have been concerned X might have been abused, he answered “Yes”.
The difficulty can be seen from considering the position if the father had been asked to assume that the mother had seen X draw an adult male’s genitals whether he would have been concerned. The answer would also probably have been yes. However, that would not be the same as agreeing that her perception of a picture he had not seen was accurate.
On my assessment at that time the action she demonstrated in the witness box was entirely consistent with a 5 year old child holding a toy and shaking it up and down. It was not, as the ICL noted, necessarily a sexual one, such as moving her hands along the toy in a stroking motion.
In the absence of the accompanying words nothing would arise. The next issue is that in her contemporaneous statements to authorities the mother did not state, as she does now, that X said that the monkey represented her father.
The father’s evidence was that X had never called him by his first name only daddy.
This evidence is reliant entirely upon the mother’s interpretation of what she perceived. In that regard I note the caution I believe must be applied to her evidence in this regard.
The fact that the action demonstrated by the mother was consistent with a child playing with a toy moving it up and down, and that the words ascribed to X contemporaneously do not specify the toy was her father, lead me to find that this is not reliable evidence of the facts sought to be inferred from it by the mother.
I give no weight to this event as evidence of sexual abuse.
o. The expert’s opinion
In her report the expert considered the mother’s sexual abuse allegations and the evidence the mother had relied on and highlighted many of the issues with the mother’s “evidence” noted above.
In the context of her assessment of the father’s psychological condition, referred to further below, the expert concluded:
“Mr Babington did not endorse any criteria necessary for the diagnosis of a paraphilia, specifically, there was nothing to indicate that he had paedophilic interests.”
Taking all of the evidence into account as well as her psychological assessment of the father, the expert concluded that:
“While I am not able to definitively state whether or not the alleged abuse took place, considering all the aforementioned factors, my observations of Mr Babington with his children and the interview with Mr Babington, am not convinced that the alleged abuse did occur.”
The expert agreed in oral evidence that which she was not convinced any sexual abuse of X had occurred, that did not necessarily mean that it did not occur.
I should note that whilst the expert was questioned about her experience in the process of giving oral evidence in Court as an expert witness in Family Law Act proceedings, she was not challenged on her expertise as a psychiatrist, including as a Staff Specialist Child and Adolescent Psychiatrist in the public health system working with children and their families in inpatient and community settings.
It is the latter unchallenged clinical experience that concerns this Court, and I accept without caveat that the expert had the requisite specialised knowledge based on her training, study and experience to give the opinions provided.
vi. Conclusion
For the reasons given above I am not persuaded that there is any reliable evidence upon which any weight can be placed that the father sexually abused X.
I am comfortably satisfied that X was willing to disclose unusual and inappropriate sexual conduct, and that had the father sexually abused her she would probably have disclosed the relevant facts to one of the interviewers including, if not the mother, then to either the hospital, school counsellor or police
Consequently, I am comfortably satisfied that the evidence does not establish any risk of sexual abuse to X by the father if she is to live with or spend unsupervised time with him.
6: Did the mother maliciously fabricate the sexual abuse allegations, and even if not, does or might her pre-occupation with them make her a risk to X?
i. Introduction
Given my finding that there was no sexual abuse it is necessary to consider the father’s case on malicious fabrication, and on whether the mother presents an unacceptable risk to X’s mental health and relationship with the father by reason of a risk that she will convey this false belief to X causing her significant psychological harm.
No one submitted that allowing X to become aware of sexual abuse allegations, if false, would not pose a serious risk to X’s psychological health and wellbeing.
ii. Expert’s opinion
a. What was the mother’s likely psychological state at about the time of separation?
The expert considered the mother’s history of treatment for stress and anxiety in 2007-2008, noting it as being a response to her husband’s then mental conditions and associated conduct, as well as the mother’s complaints of bullying in 2016, and her history to Dr D on 17 February 2017.
The expert stated that:
“While Ms Babington does not have an established psychiatric history and she denies current psychiatric symptoms, it is evident from her clinical records… that she is susceptible to experiencing mood and anxiety symptoms in the context of significant psychosocial stressors…”
In oral evidence when asked about the mother’s emotional state at the time of separation, being the time she developed her suspicions and beliefs as to sexual abuse, the expert said:
“…I think Ms Babington was emotionally upset. She was possibly surprised at having been presented with the option of Mr Babington taking some time out and I think she may have been angry and resentful…”
In context of questioning about the second medical examination the expert said:
“…Is it possible that her preoccupation with the sexual abuse claim may have overwhelmed her ability to understand the feelings of her daughter undergoing a medical examination?
Yes, I think it is possible.
Do you think that that’s likely?
I think – if a mother is extremely distressed because she is concerned that her daughter has been sexually abused I think it can impair her objectivity…”
The expert was asked by the Court:
“… [His Honour] are you able to provide any assistance with what you think may have been the psychological factors or psychiatric factors relevant to the mother’s conduct? - - -
- The mother’s perception of - - -
- Yes?
Yes. Look, I still stand by what I said earlier with the mother’s cross-questioning. The mother’s - - -
- - - Cross-examination?
Yes. But I also do think that if someone is stressed, possibly angry, has an idea that something is occurring, then it is more likely that certain things that get seen could be viewed in that light. There’s sort of a bias towards that belief. That is possible.
Does it become an overvalued idea?
Yes.
All right - - -
- Well, I don’t think - - -
Well, maybe not that high? - - -
- - I don’t think it’s as strong, sorry.
Yes, sorry. Not as high as an overvalued idea, but - - -
- - Yes. But that’s why I used the word “preoccupation”. It’s not quite as – held as strongly as an overvalued idea, yes.
Actually, just for the transcript, since I’ve introduced that concept, could you just explain what an overvalued idea is?
Okay. So an overvalued idea is when you strongly believe something, even when there is evidence to suggest that it’s not the way you understand it, however you are willing to change your opinion if you are presented with the facts…”
b. Does the mother’s conduct suggest malicious intent?
The expert stated that:
“She was preoccupied with the sexual abuse allegations she had made against Mr Babington, despite evidence to suggest that, at least, some of her suspicions were unfounded (the analysis for semen had been negative, X's itchy vulva was due to psoriasis, X had told the female police officers that had interviewed her that the cut on her vagina had occurred while riding her bike).”
In cross-examination the expert was taken through the evidence relied upon by the mother regarding the factors in Re David (1997) 22 Fam LR 489.
The expert considering those factors stated “it was not my impression that she was doing it maliciously.”
c. Is the mother a risk to X’s mental health because of her pre-occupation with the sexual assault allegations?
The expert’s evidence was that the mother “…had a comprehensive and accurate understanding of each of the children's physical, developmental, and intellectual needs” and that on assessment her mood was “positive and stable”, and her thought form was “linear, and goal directed”.
However, the expert contrasted this with the mother’s “pre-occupation” with the sexual abuse allegations and the fact that she “appeared unaware of the impact her negative beliefs about Mr Babington may be having on both X and Y”.
The expert indicated in terms of capacity that:
“I formed the opinion that the children are not at risk of physical harm in the care of the Ms Babington. However, I am concerned that Ms Babington’s ongoing allegations of sexual abuse and her personal distress in this regard, place the children at risk of psychological and emotional harm.”
The expert expressed a concern that the mother failed to:
“…fully appreciate the potential impact it will have on her children's emotional and psychological well-being if their access to their father is significantly restricted.”
The mother was asked in cross-examination whether she accepted that the nature of the allegations she had made against the father may harm the relationship the children have with the father, and stated “I don’t believe so”.
The mother when asked about the expert’s opinion that her “preoccupation with the sexual abuse allegations… [m]ay impact on her ability to co-parent the children effectively…” pointed to the fact that she had never withheld X from a visit with the father despite her beliefs.
The expert agreed with the mother’s senior counsel in cross-examination that what she had interpreted as a “preoccupation” in terms of the mother’s presentation at interview could have been merely a concern to ensure the expert had all of the information.
However, given my finds of no sexual abuse the mother in effect relies upon the expert’s opinion as to pre-occupation because the mother relies on the expert’s opinion that there was no malice, and the no malice opinion is based on their being a pre-occupation.
The expert stated in her report that each parent:
“…may have limitations on their capacity to meet their children’s emotional and psychological needs without further support.
For Ms Babington to meet the [sic] X and Y's emotional and psychological needs appropriately, she may require additional psychological input…”
And
“I am concerned that [the mother] may be experiencing similar symptoms currently (understandably) but is either minimising them or not recognising them. Ms Babington may benefit from ongoing supportive therapy which does not focus on the sexual abuse allegations.”
The expert stated in oral evidence that the mother’s therapy was focussed on her concerns about the alleged abuse and that:
“…it’s maybe not that helpful to focus on that, but rather to focus on herself and… how she can get support for herself…”
Given that Y is enrolled in high school and that the parties managed to agree this, it seems unlikely that any issue will arise noting there is no evidence that any consideration has been given to Y changing school, and noting that neither party will be able to unilaterally re-locate in a manner which interferes with the children’s time with them.
The ICL seeks an order for equal shared parental responsibility as a protective measure and on the basis that the parents should be able to co-operate sufficiently to share this responsibility.
For the same reasons that Y is to live with the father, on balance I find it would be in Y’s best interests for his father to have sole parental responsibility for him, subject to the restrictions agreed to by the father and on the basis that the father will notify the mother of any major long-term decisions.
Within a year Y will be 16, and if any major long-term decision on which Y and the father agree is delayed or defeated by the mother there is a real issue as to whether Y would accept that decision, and such a dispute could further damage his relationship with the mother.
The parties and the ICL agree that Y should spend time with the mother to attempt to repair their relationship, and to increase his time with X should X live with the mother, and the expert agreed that this would be in Y’s interests.
It was clear from Y’s comments to the expert that although he is angry with the mother, he does want her in his life, noting that his 3 house drawing had the mother next door rather than in the house far away.
I find that it is in Y’s best interests to spend time with the mother, and additional time with X noting my findings below concerning X. The question is how to achieve this in a way that encourages rather than detracts from the attempt to repair the relationship.
The mother sought an immediate introduction of alternate weekends from Friday until Sunday and half school holidays together with special occasions, on the basis that there was no specific evidence that a transitional period was required. The father agreed to the special occasions in cross-examination. The ICL suggested a gradual increase of the current alternate Sunday day time, then to alternate Saturday to Sunday, then to alternate Friday, then to Sunday and alternate Wednesday evenings. This was on the basis that trying to force an angry, resistant, almost 14 year old boy to significantly increase time with the mother in one go was likely to be counter-productive.
I agree generally with the ICL. I do not require specific expert evidence to find that given the limited time Y has spent with the mother and the issues between them trying to force him to immediately move to spend substantial and significant time with her is highly likely to be counter-productive, and that there is a real risk that if he rejects such orders in the first instance he could rebel against spending time with her at all, in which case their relationship is likely to be further damaged if not severed rather than improved.
On that basis I will make orders broadly in line with those proposed by the ICL. I note that I will specifically prioritise Y’s sporting activity as any orders which subordinate Y’s weekend sport to his time with the mother are likely to fail.
Given Y’s age I will not place a restraint on the father applying for a passport for him nor placing him on the watch list.
iii. Re X
The mother made submissions in the alternative depending on whether or not the father was an unacceptable risk.
Given my findings, the mother’s proposal was still for her to have sole parental responsibility, noting the conceded family violence rebutted the statutory presumption and the lack of co-parenting capacity. However, in oral submissions it was conceded that there had been a co-parenting relationship that, with some dysfunction, had clearly worked to an extent given the good result X has achieved to date.
The father’s only proposal was sole parental responsibility to him, but that was in the context of submissions that the mother was an unacceptable risk to X because of her false beliefs and that X would live with him.
The ICL proposed equal shared parental responsibility because of the risks in both households, the protective factors, and the fact that despite all of the conflict there is sufficient co-parenting capacity given that X is a happy child who is secure with both parents and is unaware of the allegations and spends the ordered time with the father. The parents were also able to negotiate and agree on Y’s high school and despite the difficulties, Y has spent the ordered time with the mother.
I accept the ICL’s submissions that while the risk of parental conflict and miscommunication exists regarding X, and this may make the exercise of equal shared parental responsibility not as poor as in some cases, and the protective factor provided by both parents being involved, particularly if X is to spend substantial and significant time with the parent she is not living with, outweighs the risk of conflict and future litigation. On that basis, I will order that the parties have equal shared parental responsibility for decisions concerning the major long-term issues for X.
Each party sought that X live with them in the context of the mutual allegations of unacceptable risk. Even in the absence of unacceptable risk, both parties seek that X live with them. Having considered all of the arguments that the ICL submitted that X should live with the mother.
Summarising the main elements of the mother’s case, X should live with her because;
a) she has always been X’s primary carer;
b) the relationship between X and Y is strong and has been able to be maintained despite being in separate households and is likely to continue to be strong, particularly as they live so close and will each spend time in the other parents house;
c) Y will shortly be focused on peers and his future rather than his little sister;
d) even if the father is not an unacceptable risk to X because of his reluctance to address his mental health issues, there is still a risk which weighs in favour of X living with the mother, and, it is a greater risk than the risk of the mother telling X about the abuse allegations which the mother has not done to date and is less likely to do if there is a finding she was wrong;
e) given the father’s very reasonable concession agreeing with the expert that it was probably not appropriate for him to apply cream to X’s genitals or wash her etc. (solely to avoid causing anxiety in the mother) in practical terms it will be easier for X to live with the mother at least until she is clearly old enough to reliably take care of all these tasks for herself;
f) X has maintained a relationship with the father while living with the mother and that can be developed with more time;
g) there is a risk that X’s relationship with the mother would suffer if X is living in a household where neither the father nor Y have clearly positive feelings towards the mother;
h) the mother is practically more able to look after X given her limited work hours and familial support than the father who is working full-time and already caring for Y which takes up a lot of his spare time; and
i) relying upon the expert’s opinion, the Court would not have change X’s residence just for change sake.
Summarising the father’s main submissions, which were less detailed in respect of the factual basis I have found exists, X should live with him because;
a) the children’s relationship should be prioritised and this would be best achieved by the children living together;
b) the risk of the mother conveying her false belief’s to X if not an unacceptable risk is still a serious risk with grave consequences which would best be minimised by X living with the father;
c) the father was heavily involved in X’s upbringing;
d) X has an equal attachment to the father so there was no greater attachment to the mother;
e) each party had the same capacity to care for X’s physical, psychological and emotional needs and the practical aspects of his proposal were as good as the mother’s as accepted by the expert, noting the many single parents who juggle 2 children’s activities; and
f) the status quo, which was effectively put in place as a consequence of the mother making false allegations of sexual abuse, should not be maintained for the sake of maintaining the status quo.
Each party has cogent reasons for their position and I am satisfied that, subject to the father monitoring his mental health as agreed, each parent could provide a household for X to live in and spend time in.
I have considered and balanced the competing factors and risks and benefits to X. There is no precise calculus of risk and benefit that can be articulated as if a mathematical formula. On balance, noting the expert’s opinion with which I agree that it may be more practicable for X to live with the mother, and that the sibling relationship will survive the children living in separate households, and the somewhat greater risk from the father’s mental health issues, I am satisfied that X’s best interests will be served by living with the mother, so long as she is able to spend appropriate time with the father and with Y who will be spending time in both households.
The father agreed with the position adopted by the expert’s opinion that although he posed no risk of sexual abuse to X it would be better if he did not apply cream to her genitals or bath her or deal with her when she is naked in order to avoid re-igniting the mother’s concerns, even though they are unfounded.
This concession by the father was very sensible. It also took into account that as X is almost 8 she is generally capable of doing these things for herself, and that creating additional anxiety in the mother is likely to adversely impact on X and on the mother’s capacity to co-parent X with the father.
The mother seeks mutual restraints on the parties applying for a passport for X and that she be placed on the airport watch list. Whilst there is no real evidence of either parent being a flight risk, nor is there evidence that X is likely to travel overseas at any foreseeable time in the future, and the absence of such an order is likely to add to the mother’s anxiety, in the short term at least, and that would not be in X’s best interests. I will make these orders and the parties can vary them by consent if at some future stage they agree to.
In terms of the time X is to spend with the father, the father did not put in a detailed proposal on the basis of the factual findings I have made. I have considered the proposals of the mother and ICL and broadly adopted them, although I have allowed for more time with the father as X ages over the next few years.
I have sought to structure the time each child spends with the non-resident parent to increase the time the siblings spend in the same household.
iv. Agreed procedural orders
The mother and ICL did agree on a number of procedural orders and the father accepted these as appropriate in the witness box. These orders include such matters as telephone communication provisions, standard restraints on denigration and as to access to school and medical information and similar orders. I will make those orders.
The mother also proposed and the father agreed in his evidence, as part of his case that he will manage his mental health and is not an unacceptable risk, to a regime of seeking psychiatric supervision and compliance with that regime and I will make those orders.
v. ICL additional proposals
The ICL proposed that he should meet with the children and explain the orders and I will make that order.
The ICL also proposed that the parties should attend family therapy, in particular to assist the family to adjust to the orders made and to assist Y repair his relationship with his mother. While I have some concerns as to the viability of family therapy, I am satisfied that it in the best interests of the children and in particular of Y to at least attempt this process. Accordingly, I will make that order.
11: Best interests of the children
The paramount consideration is the children’s best interests taking into consideration the factors set out in ss.60CC.
i. Primary considerations
The two primary considerations, in order of weight, are the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence, and the benefits to the children of having a meaningful relationship with both parents.
For the reasons set out above there is a risk to X in living with her mother because of the risk that her mother may convey to X her false belief that the father sexually abused her, and a risk to X in spending unsupervised time with the father in that he may not pro-actively manage his mental health and have a mental health episode when is in his care.
However, neither of these is an unacceptable risk. The mother has managed not to convey that false belief to X to date, or to Y, and the father has agreed to psychiatric supervision and treatment.
Similar risks exist for Y when spending time with the mother and in living with the father, but his age further mitigates the risks.
Given that the risks can be mitigated and managed it is possible for X and Y to live or spend unsupervised time with and to have meaningful relationships with both parents.
ii. Additional considerations
The 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
Y wishes to live with the father. His wishes as to where he lives have been respected by the parties and ICL and will be given effect by the Court.
Given her statement to the expert that she would like her time with the mother to remain the same but to see her father more frequently, X’s apparent wishes are to live with the mother and spend more time with the father. Given her age only a small amount of weight has been given to this wish.
b) the nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child);
This is dealt with above. Y and X both have excellent relationships with the father. X has an excellent relationship with the mother. Y’s relationship with the mother is very strained. The relationships with the grandparents appear to be reasonable.
c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
I am satisfied that each parent has taken the opportunity prior to separation, and when available in the context of the family breakdown, to participate in making decisions about, spending time with and communicating with each child.
Whilst there was evidence that the father did not stay as engaged with X’s education and extra curricula activities to the extent he might have, in context this does not weigh against him spending time with X.
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;
I am satisfied that each parent has fulfilled their obligation to maintain the children.
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: either of his or her parents; or; any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is considered above. There is no requirement for either child to be separated from either parent or to change primary residence.
The increase in time for Y with the mother will need to be managed carefully, but will be in his best interests. Similarly, the increase in time for X with the father will also need to be staged but will be in her best interests.
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;
Given the location of each household in a similar neighbourhood and close to each child’s school there is no practical difficulty or expense involved in each child spending time with the non-resident parent.
f) the capacity of each of the child's parents; and 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;
I am satisfied that each parent has the capacity to provide for the needs of each child, including the physical, emotional and intellectual needs, on condition that the mother does not convey her false belief’s that X was sexually abused, and that the father pro-actively undertakes monitoring and where necessary treatment for his mental health.
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;
There is no issue with the maturity, sex, lifestyle and background of either child or parent which is relevant here, nor any other relevant characteristic of the child.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this Part will have on that right;
This is not applicable.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The experts’ opinion was that:
“I formed the opinion that both parents have taken, very seriously, the responsibilities of parenthood. … Both parents have been strongly focussed on their children and I believe they each love and care for each of their children very much.”
I agree.
j) any family violence involving the child or a member of the child's family;
The father’s historical family violence including the alleged controlling behaviour has been considered above. I am satisfied that so long as the father manages his mental health in accordance with the orders, as proposed by the mother and the ICL, this is not a reason for X not to spend unsupervised time with the father.
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:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
There is no family violence order applicable here.
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;
The possibility of further litigation cannot be ruled out except by having Y live and spend time only with the father and X live and spend time only with the mother. That cost to the children of the loss of parental and sibling relationships from such orders would outweigh the benefits of avoiding further litigation.
m) any other fact or circumstance that the court thinks is relevant.
The other relevant factors have been considered above.
12: Parental responsibility
Does the presumption apply or has it been rebutted? (s.65DA)
This is discussed above. The mother and ICL agree to the father having sole parental responsibility in respect of Y subject to certain caveats.
Each party seeks sole parental responsibility for X. The presumption is rebutted in respect of the father due to family violence. It would not be practicable for the father to have sole parental responsibility for X given my finding that X should live with the mother. The issue is whether the protective benefits of equal shared parental responsibility for X are achievable in the context of relatively poor prior communication and co-parenting or whether the mother should have sole parental responsibility for X.
If there is equal shared parental responsibility is equal time in the child’s best interest, and if not is substantial and significant time in the child’s best interests?
Equal time is not in X’s best interests at this time given her age as identified by the expert.
Is this substantial and significant time? Ie, Does the time include both days that fall on weekends and holidays and days that do not, and, time that allows the parent to be involved in the child’s daily routine and occasions and events of particular significance to the child and to the parent? (s.65DAA)
There will eventually be substantial and significant time with the father and X will be able to maintain a meaningful relationship with him.
Is it reasonably practicable?
The parties’ locations make time with each parent by each child, and overlapping time for the children in each house, practicable.
How far apart do the parents live from each other?
They live very close to each other.
What is the parent’s current and future capacity to implement an arrangement for the child to spend equal or substantial and significant time with each parent?
The parties have the future capacity to implement an arrangement which will allow X to spend substantial and significant time with the father.
What impact would this have on the child?
A gradual increase in time with the father will have a positive impact on X’s relationship with the father, and Y, without detracting from her relationship with the mother or creating significant inconvenience.
Are there any other matters that should be considered?
The other relevant matters are considered above.
If neither equal nor substantial and significant time is in the child’s best interests or is not reasonably practicable what time should the child spend with each parent?
This is dealt with above.
13: ICL’s costs
The ICL’s costs were $14,596.05. These were sought. The father has already paid his half. The other half were sought from the mother. The mother sought an order that she not be required to pay these costs.
Section117 sets out the relevant factors especially at (2A) and (4) and (5).
A letter from the mother’s solicitors to the ICL dated 13 September 2018 was tendered by the ICL. The letter indicated that the mother’s legal fees paid were approximately $115,000, with $2000 outstanding, $1500 of work in progress and a further $9000 of fees anticipated. The mother was said to have borrowed $29,885 and her parents for these legal fees which she says she is required to repay.
The mother’s submission was that having paid her own fees she is unable to pay more. There was, however, no evidence lead in support of that submission. There was a property adjustment between the parties. The mother did not lead evidence of inability to pay and her case is that she has the financial capacity to care for X.
The ICL relied on the observations of Justice Kirby in CDJ v VAJ (1998) 197 CLR 172, particularly the observations to the effect that generally one would expect that parents should be equally responsible for the costs of a child representative.
I do not consider the fact that the mother has spent a substantial amount of money conducting a case directed primarily, though not solely, to unsustainable allegations of sexual abuse as a basis on which the Taxpayer should bear her portion of the costs of the ICL in this case.
I am satisfied that it is reasonable for the mother to be required to pay her half share of the ICL’s costs, and absent specific evidence that she is unable to pay and noting the sum involved, I will order that she pay the sum of $7,298. She should have 6 months to pay.
I certify that the preceding four hundred and three (403) paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith
Date: 23 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Standing
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