Baird & Gillespie (No 2)
[2022] FedCFamC2F 1227
Federal Circuit and Family Court of Australia
(DIVISION 2)
Baird & Gillespie (No 2) [2022] FedCFamC2F 1227
File number(s): ADC 1635 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 22 August 2022 Catchwords: FAMILY LAW - parenting - concerning three children - where the children live with the mother and spend time with the father - review of registrars decision - where there is alleged sexual assault of the children by the father - whether there is risk to the children by the father - court not satisfied there is an unacceptable risk to the children. Legislation: Family Law Act 1975 (Cth) ss 60CC, 91B;
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r14.07
Cases cited: M & M (1988) 166 CLR 69 Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 22 August 2022 Place: Darwin Solicitor for the Applicant: Ms Bosko of All Family Law Counsel for the Respondent: Ms Lewis Solicitor for the Respondent: Jacqui Ion Lawyers Ptd Ltd Counsel for the Independent Children’s Lawyer: Ms Pangallo Solicitor for the Independent Children’s Lawyer: Legal Services Commissions of South Australia ORDERS
ADC 1635 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAIRD
Applicant
AND: MR GILLESPIE
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS UNDER FURTHER ORDER THAT:
1.The oral application made by the mother for an adjournment of today’s Review hearing be dismissed.
2.The orders made by Senior Judicial Registrar Best on 27 June 2022 do continue.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
3.The parties do all things necessary to obtain a Global Developmental Assessment with a paediatrician or child psychologist that assesses the child X’s current development needs.
4.A copy of the Global Development Assessment be filed and served by the mother under cover of an Affidavit upon her receipt of same.
5.Forthwith both parties do all things necessary to obtain a psychiatric assessment from Dr B at their sole cost, outlining the state of their current mental health, diagnosis, reflective functioning, recommendations for a treatment plan and their capacity to engage and maintain any treatment plan.
6.The Independent Children’s Lawyer, along with the parties’ legal representatives, jointly instruct Dr B to prepare the psychiatric assessments with the Independent Children’s Lawyer to provide Dr B with the following documents:
(a)Copies of all Court Orders, Affidavits and Judgments filed or published in these proceedings to date;
(b)Copies of all material produced to the Court by way of section 69ZW order, subpoena or co-located reports; and
(c)A copy of the Child Impact Report dated 1 August 2022.
7.The mother participate in a Carbohydrate Deficient Transferrin test to ascertain her level of alcohol consumption, with the mother to obtain an expert summary of the test results at her sole cost and the mother to file and serve the results of such testing upon her receipt of same.
8.Both parties be restrained and an injunction be hereby granted restraining them from consuming illicit substances or alcohol to excess during any period of time that the children are in their care.
9.The parties do all things necessary to forthwith enrol in and completed the Kids Are First and Banana Splitz parenting programs through Anglicare or such other equivalent organisation.
10.Upon completion of the parenting courses referred to in paragraph 9 herein, the parties do file and serve a copy of their certificates under cover of an Affidavit.
11.The parties utilise a communicate application such as “Our Family Wizard” or “AppClose” with respect to matters pertaining to the care, welfare and development of the children with the parties to utilise such application at their own cost.
12.An external family assessment report be prepared by a clinical psychologist such as Ms C or Mr D of E Psychology who have availability to meet with the parties and the children as and from March 2023 and the cost of such report be at the parties’ joint expense.
13.The parties and their legal representatives participate in a Family Dispute Resolution conference at the Legal Services Commission on a date to be set by the Court not before late April 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Baird & Gillespie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE YOUNG
Adjournment Application
This is an oral application for the adjournment of an application for review set down for hearing before me today. The application for review was filed in the Adelaide Registry on 1 July 2022.
There are two grounds for the application for adjournment. The first ground is that on 11 July 2022, some 10 days after the review application was filed, an order was made by Senior Judicial Registrar (“SJR”) Best, who heard the original application, suspending the order she had made and making made some slightly different orders. Some of those orders were not stay or suspension orders but were intended to vary the orders that she made on 27 June 2022.
In addition, on 11 July SJR Best made an order pursuant to section 91B of the Family Law Act 1975 (Cth) (“the Act), requesting the Minister to intervene. A request to intervene under section 91B is not an order to intervene but, as the terminology of the section makes clear, simply a request which may or may not be acceded to by the relevant child welfare authorities, in this case the Department of Child Protection in South Australia. It is the experience, I think, of most of the Judges sitting in the family law jurisdiction of this Court that it is unusual and probably rare for the Minister to accept such an invitation. Be that as it may, I do not give any weight to the history of other past matters in determining the likelihood of intervention in this matter.
While the order was made on 11 July 2022, I was told by Ms Pangallo, who appears as the Independent Children’s Lawyer, that she had caused inquiries to be made of the co-located officer of the Department of Child Protection. The co-located officer informed Ms Pangallo’s instructing solicitor that the order requesting intervention had not been served on the Minister until 16 August 2022, nearly five weeks after it was made. Further, the co-located officer said that in view of the very late service of the order requesting intervention that the departmental processes had not been completed. In other words, the department was considering whether or not it would accede to the request.
The background to the department’s involvement is set out in great detail in the reasons of SJR Best given on 27 June 2022. It is the orders of that date that are under review today.
Briefly, the background is that a four year old child, Y, is said to have made a complaint to her mother that her father tickled her on the vulva and it is said by the mother that similar statements were repeated at least one more time by the child. The mother reported that to the Department of Child Protection and a Child Protection investigation undertaken. That Child Protection investigation, which appears to have been thorough, involved forensic interviews of the child and the child’s two older brothers, who are six and nine. There were also interviews of the mother and the father and a psychological assessment of the father with a view to giving him a score on the scale of likely sexual offenders or, in other words, whether he illustrated traits that might be associated with child sexual offenders.
He was rated very low on that score and it was found that his presentation was inconsistent with a history of or a profile of a child sexual offender. There was no evidence to substantiate the concerns raised and there was significant material that was inconsistent with those concerns. There was, however, some other material that the Child Protection Service noted. It appears there was some avoidant behaviour by Y when she was asked questions about the father. The Child Protection Service report speculated about various reasons why that might be. As the father had been excluded from the household at that point that may have been a factor which explained Y’s reservation, as she was expressing concern about where the father might be.
It is speculative, as I think was recognised in the report, to offer any reason about why the child might have been avoidant. It seems that at the end of that process the letter from the Child Protection Services recommended that there be some continued supervision of the children’s time with the father. As SJR Best pointed out in her reasons, there would not appear to be any basis whatsoever for supervision regarding the father’s time with the two older children and SJR Best questioned whether there was a basis for the recommendation of continued supervision of the father’s time with Y, having regard to the results of the investigation.
I should also say that there was a concern raised about the father allegedly threatening self‑harm or suicide around about the time the allegations were first raised and in response to the allegations. He was assessed by a psychologist as part of the process of investigation by Child Protection Services and the result of that was set out in paragraph [109] of SJR Best’s very extensive reasons. The father was found to be at somewhat elevated risk of harm to himself but not a significant risk of harm to his family. Having regard to that summary of the background, I consider that the prospects of the Minister or of the Department of Child Protection accepting the request to intervene in the proceedings is not high.
If it were the case that the department did decide to intervene it appears to me that that is simply a factor that would need to be taken into account when and if it occurs. As I say, my assessment is that there is not a high likelihood of intervention and, in the circumstances, I do not consider that the simple fact of the order of 11 July 2022 having been made is a proper basis for adjourning this review hearing.
The second set of grounds related to an assertion by Ms Bosko, counsel for the mother, that there was a necessity to put new information before the Court. Having discussed the matter at some length with Ms Bosko, I am not satisfied that there is any significant relevant information to be put before the Court.
The three categories of new information were said to be the Child Protection Service subpoena materials, which have been available since 24 May 2021. I am told by my associate the subpoena materials were returned to the Court on that date. That being the case, there has been a period of almost three months for those subpoena materials to be attached to an affidavit and put before the Court if need be. If there are relevant subpoena materials that are relevant to the review application there is no reason why they could not have been annexed to an affidavit and an application put before me so that I could see what the relevant material is. Of course, in a trial it may be that subpoena material from Child Protective Services would be relevant.
Having regard to the fact that there are reports of an investigation, notwithstanding it appears that a section 69ZW order has not been made for some reason, before the Court, and the reasons of SJR Best canvass the results of the investigation in great detail, I am not satisfied there is further important material available to justify an adjournment. There was no specific material identified that was relevant and significant that would necessitate an adjournment.
It was also said that there should be subpoena materials from the psychology service, F Psychology, which should be put before the Court. There is, however, a letter from the relevant psychologist that was before the Court and was considered in the earlier hearing. In brief, the psychologist assessed the mother as raising her concerns about the alleged sexual abuse in a way that was somewhat different to other concerns raised by her. The mother had psychological concerns, particularly about anxiety and intrusive thoughts that were identified by the psychologist. I am not satisfied that that material is of any real significance. It was said that as the father had consulted that psychologist, who apparently recorded threats of self-harm being made by the father that was relevant to the overall assessment of risk.
I agree it may be relevant but it would have been a straightforward matter to give a subpoena to the psychologist and have that material produced before me today to make an assessment about its significance. That has not happened and I am entirely in the dark about the specifics of that information or material.
It was also said that the mother should be given the opportunity to reply to the father’s affidavit filed earlier in the proceedings. It was said that the mother was unable to file that material because she had not been given leave. The father’s affidavit was filed on 6 May 2022 and there has been abundant opportunity to reply to that material. Even if leave had not been given by the SJR in the interim hearing before her, under rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, on a review hearing I can consider any further affidavit. It would have been open to the mother to have drafted an affidavit, served it on the father and the ICL and sought my leave orally to rely on it. That did not happen and, while there is no real indication before me of what further she might have to say, I am satisfied there has been the opportunity to say it. The application for adjournment is dismissed.
Review Application
This is a review of a decision of a Senior Judicial Registrar made on 27 June 2022. The orders under review relate to three children: X, who is nine years old, Z, who is six years old, and Y, who is four years old. The orders sought to be reviewed by the mother are, in summary, orders providing for there to be shared parental responsibility until further order. There are also orders that children live with the mother and spend time with the father each Wednesday night through to Thursday morning and on alternate weekends from Friday to Monday before school. In addition, there is an order concerning the youngest child, Y, that the paternal grandmother, with whom the father lives at the moment, attends to the dressing, bathing, toileting and bedtime routine of Y.
There were some other orders made, but I do not need to pay particular attention to those at the moment. The review application arises out of a notification the mother made to the Department of Child Protection Services in or about March of 2022. The mother says in her affidavit filed on 14 April 2022 that the mother and the father have a habit of tickling the children on their feet or their skin to settle them down at night, and this is something that has always occurred with the children from when they were babies. The mother says that there is nothing inappropriate about that, as is obviously the case.
However, the mother says that in October 2021 she and Y were playing tickles and wrestling on the bed. She said Y asked, “Should I take my clothes off?” The mother said that she thought that was odd but said “No”. Sometime between 17 and 20 January 2022 the mother was again giving Y a bedtime tickle, and Y lay on her back and pulled down her pyjama pants. She did not have underpants on but asked her to tickle her while pointing at her vulva. The mother said that she would not tickle her there because families do not touch each other on their “private parts”.
Y said, according to the mother, “Daddy does.” The mother said she said that was not okay, and she left it at that because one of the other children was in the room but the mother said she was shocked. She said the next day she was sitting on the bed chatting and she asked Y, “Where does Daddy tickle you?” Y pointed to her bottom and then to her vulva, and the mother said she asked if the father tickled her “once or lots of times?” Y is said to have replied, “Lots of times.” The mother said that she said to Y, “It’s not okay for adults to touch there, even daddies.” The mother claims Y replied, “It’s ok. I like it.”
The mother said she explained again that that was not okay. The mother then called a helpline and spoke to a friend about what she had heard. A few days later, she spoke to the psychologist whom she was seeing and told her what had happened. She also told the father what had happened on the same day.
She said the father denied touching Y’s genitals and the parties agreed that they should talk to someone about what had occurred. The mother said that again a few days later on 26 January 2022 she and Y were playing and the child again asked her to, “tickle me here” pointing to her vulva, and the mother said “No”. She said Y jumped off the bed saying, “I want to get naked.”
Again the mother told Y that families do not touch each other’s “private parts”. She said that Y jumped back onto the bed with her underpants on, laid on her back, opened her legs and touched her vulva through her underpants and again asked the mother to tickle her there. The mother said that was not okay, and the mother said Y then replied, “Why? Daddy does it.” The mother said she ended the play.
The mother said she was distraught and, after telling the father what had happened on 30 January 2022, she called the Department of Child Protection and made a report. A safety plan was entered into around about 30 January 2022 and it seems the father then left the home and relocated to his mother’s house.
Following this, according to the reasons of SJR Best at paragraph [61], the mother was interviewed on 9 February 2022. On 14 February 2022 a forensic interview of the child took place. Y was observed by an officer of the police child and family investigation section. The mother was given feedback on 14 February 2022. On 22 February 2022 the father was interviewed. I might say that a further step occurred in that on 4 March 2022 Dr G was retained by the department for the purpose of preparing a psychological report about the father’s child abuse risk. I will return to that.
Some reference must be made to the results of the forensic interview described at exhibit ICL1, which is the assessment report relating to Y. I do not propose to refer to all of the report but the forensic interview is of significance. It is unclear who conducted the interview as the name is redacted but it was a psychologist, presumably trained and qualified to undertake a forensic interview. It is unnecessary to identify precisely who completed the report. The interview was also observed by a police officer.
The child protection service clinician satisfied herself that the child was able to provide a narrative of events relating to a kindergarten, that is other than the events themselves and that she seemed to understand the difference between truth and lying. The clinician was satisfied the child was able to demonstrate a capacity to respond to open ended and specific questions and provide detail as necessary of a narrative. The clinician began the interview with a series of open ended and non-directive questions intended to elicit if the child wished to make a disclosure. The child did not make any disclosure whatsoever. The clinician then went on to provide some prompts, as she described. She said to the child that she had heard something had happened to her and that her mum had told her that something had happened about tickles and so on. The child made no response to these promptings to disclose.
The clinician having obtained essentially nothing from the child, consulted with the observing police officer and it seems that a decision was taken to conduct some rather more targeted questioning. The child was asked where her mother tickled her and the child explained by pointing out various parts of her body not including her vulva or her genitals. The child was then asked where her father tickled her and the child, again, pointed to various parts of her body not including her genitals. The clinician noted that the child had dropped her soft toy at this stage and appeared to be attempting to distract the clinician from such questions. The clinician then noticed that the child’s behaviour was becoming dysregulated and her play was becoming silly in nature. The clinician concluded that the child was increasingly reluctant to engage in any conversation about where her father tickled her and the child then expressed a wish to conclude the interview.
However, the interview did continue and with the assistance of diagrams the child was invited to indicate on the diagram where her mother tickled her and then where her father tickled her. Again, the child did not indicate that her father had tickled her in the genital or anal area. The clinician then decided to ask pointed questions and she said whether anyone had tickled her bottom or her vagina and the child in both cases shook her head or said “No”. After consulting with the observing police officer the clinician then brought the interview to an end.
Under the heading Opinions and Recommendations the report made a number of observations:
Despite her struggle to engage in the interview process, [Y] was provided with many opportunities to disclose experiences of abuse, but consistently denied being tickled or touched on her vagina or bottom, or having spoken to her mother about being tickled. Furthermore, [Y] expressed knowledge in the interview that tickles to her vagina and bottom were not allowed as they were private areas which reflected [Ms Baird’s] (very appropriate) response to [Y’s] previous request to be tickled on her vulva.
However, of some concern, the CPS noted that [Y’s] presentation changed when asked about her tickles by her father, compared to when asked about tickles by [Ms Baird]. In this regard, [Y] easily identified multiple body parts tickled by [Ms Baird], whereas she identified far fewer body parts when asked where [Mr Gillespie] tickled her. Moreover, [Y] spoke in a quieter voice and was more avoidant of questions when asked about her father, sometimes placing her soft toy between herself and the clinician, seemingly as a barrier to the conversation. In considering this response by [Y], the CPS was mindful that [Y] had been separated from her father without contact for a number of weeks and that she may have noticed [Ms Baird’s] tension regarding [Mr Gillespie], leading her to feel unsure about discussing her father. The CPS also considered that if [Y] had experienced tickles to her genitals by her father she may be reluctant to discuss them for a number of reasons, such as her (relatively new) knowledge that tickles to her vulva and bottom were not appropriate or that the experience was traumatic.
In considering [Y’s] initial statements, the CPS noted that the consistency of her statements over two separate occasions in addition to the simplicity of her statements and the lack of contextual detail she provided. In the absence of contextual detail, it was difficult for the CPS to understand what [Y] was trying to convey. Whilst [Y’s] statements could have reflected worrying experiences of abuse, the CPS also considered alternative explanations for her statements such as age appropriate body exploration or games. In the absence of further concerns or disclosures the CPS was unable to confirm that [Y] would be placed under significant risk if contact with [Mr Gillespie] was reinstated. In considering this risk, it was necessary to balance the possibility that sexual abuse had occurred, with the significant emotional and relational impact of [Mr Gillespie’s] prolonged absence upon [Y] and the family unit as a whole. Moreover, in reflecting upon [Y’s] ongoing protection and safety, the CPS was reassured by [Ms Baird’s] protective capacity and held the view that if further concerns arose that she would manage these appropriately.
It might be observed that the reasons offered for Y’s apparent reluctance to talk about her father tickling her or her avoidant behaviour could have its source in many things, a couple of which are touched on in the report. It appears to me that given the child’s failure to make any disclosure and the express denial by her that her father touched her vulva or her bottom that the additional comment in the report is speculation. There is no evidence beyond what the mother reported Y saying to her on a number of occasions in January and there is no evidence of indecent touching or abuse by the father.
The Child Protection Service wrote an email to the mother which was annexed to her affidavit of 29 June 2022. That was sent on 24 May 2022 well after the completion of the report that I have just read from on 4 March. The advice given to the mother was as follows:
The Department has finalised the assessment in relation to the concerns that were raised and wishes to advise that the allegation of “suspicious indicators consistent with sexual harm” has not been substantiated. Whilst the threshold for substantiation has not been met in this case, the Department would like to highlight that this does not mean there is no risk to the children. The Department remains concerned that the disclosures of [Y] could be indicative of the initial steps of sexual abuse and grooming behaviours. This concern is based on research and statistics around what is known of sexual offenders and this situation is very similar to early sexual abuse.
There is then a reference to a website before the advice continues:
The Department is recommending that any contact that [Mr Gillespie] has with your children is always supervised by another adult. The department will be closing this case as it has been assessed that no further statutory involvement is required.
That email is to be contrasted, in my view, with the substance of the report prepared following the forensic interviews of the parties and the report of the assessment of the father.
The report of 4 March 2022 is, in my view, a balanced report and offers alternative explanations for what is called in the report as ‘avoidant behaviour’ by Y when asked about her father’s tickling. What is absent from the report of 4 March 2022 is a statement such as the one contained in the email of 24 May 2022. That is:
…a concern that the disclosures of [Y] could be indicative of the initial steps of sexual abuse and grooming behaviours. This concern is based on research and statistics around what is known of sexual offenders and this situation is very similar to early sexual abuse.
There is, as far as I am aware, no statement like that in the initial report. Further, the paragraph in the email of 24 May 2022 recommending constant supervision of the children with the father is not a recommendation that is made in the report by the psychologist and it appears to me that they are quite inconsistent. It seems the statements made to the mother in the email of 24 May 2022, particularly that what is reported could be the first stages of sexual abuse or grooming behaviours, has no explicit basis in the materials before me or reference to how that conclusion was arrived at in relation to this particular child. Similarly, there is no basis in the materials before me or in the report of 4 March 2022 that would necessitate constant supervision of the children’s time with the father.
That is an unsatisfactory aspect of the matter. I do have to make an assessment of risk and it appears to me that the two positions of the Child Protection Service communicated in the first in the report of 4 March 2022 and the second in the email of 24 May 2022 are not consistent. There is a lack of any reference to evidence that would underpin the recommendations and suggestions contained in the email of 24 May 2022.
The other factor that is of significance is that as part of the forensic inquiry conducted in March 2022 the father was requested to undergo an assessment for sexual offender risk and he agreed to undertake that assessment. That assessment was undertaken by a clinical psychologist, Dr G, whose report is annexed to the father’s affidavit.
There are two particular matters that were addressed. The first matter was whether the father was a suicide risk or a risk for harming his family given that the mother had reported that at the time of their separation earlier in 2022, following Y’s report to her mother, the father is said to have said that he felt like killing himself. The other area of inquiry was his sex offender risk profile. Without going through the report in detail it was said that there were:
…some recognised scales for determining the risk of sex offending. It was concluded that the father’s scores “were not significant and none of the relevant indicators were significant”.
In other words, there was nothing in the sex offender risk assessment to indicate any significant indicators on the part of the father that he was a sex offender. In summary, Dr G concluded under the heading of Sex Offender Risk Profile that the father was “low risk” and that, “none of the relevant indicators were significant”.
In relation to suicide risk, compared to the “community” sample he was in, the “moderate to high risk” category and for the “clinical” normal sample he was in the “moderate risk” category. Dr G said:
On the basis of the current information, it is my opinion that [Mr Gillespie] does not pose a significant risk of offending towards his family. His elevated suicidal ideation suggested that he was more a risk of harming himself were he to be prevented from re-establishing his relationship with children and partner.
In relation to current suicide risk for the purposes of the Child Impact Report which was completed relatively recently, the father said that he had no intention of harming himself.
The parties and the Independent Children’s Lawyer agree that the task for the court in a situation such as this is that described by the High Court in the case of M & M (1988) 166 CLR 69, which is to identify whether a child or children are at risk of harm.
The task is to identify the relevant risk and then to identify whether that risk is unacceptable. Here counsel for the mother identified the relevant risk to be considered as, first, the risk of sexual abuse or assault of Y by the father and, secondly, the suicide of the father with the children present. She posited a third area of risk which is “psychological harm to the older boys”. I told counsel that I did not consider that to be a relevant formulation of risk in the context of this case because of its vagueness and I was not prepared in the circumstances of such a vague formulation to consider the matter as one of risk.
However, I do consider the other two matters to be appropriately precise identifications of risk. Turning to the consideration of that question, of course a court must have regard to all of the relevant matters in Part VII of the Act and, in particular, the matters in s 60CC, that is, the matters relevant to determine what is in a child’s best interests. The primary considerations are first, the benefit to the child of having a meaningful relationship with both of the child’s parents and second, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence, with the latter matter to be given greater weight.
Of course, there are additional considerations in s 60CC(3), however, in the circumstances of this case they did not loom as particularly significant. The real issue is whether there is a need to protect the child or the children from harm, and hence we must embark upon a calculus of risk and whether any such identified risk is acceptable or otherwise. I have referred to the background and the conclusions of the Child Protection Services investigation. The matters, to summarise, are that it does not appear to be challenged that Y has made statements to her mother which her mother has, not unreasonably, identified as evidence of improper touching or indecent touching of the child by the father. The truthfulness of the mother’s claims are not challenged. The father in an affidavit said that sometime in December 2021 Y said something similar to him.
Some criticism was made of him, by counsel for the mother, that he had not raised that with the mother at any relevant time. I do not believe there is anything I can make of that beyond that the father does not challenge the mother’s reporting of what Y said, indeed, he agrees that Y had said something similar to him. While I am not making findings in this interim hearing, I think it can safely be said that the fact of Y saying something to her mother does not appear to be in dispute. Even accepting that, the correct interpretation of what Y has said is far from clear. It may be that it refers to an indecent touching or it may be, as the Child Protection Service report speculates, that it is part of a child exploring her own body. It may be that what she said about her father tickling her bottom or her vulva is simply untrue.
Nevertheless, what was said was sufficient for the Child Protection Service to undertake an inquiry, and a thorough inquiry was made with interviews of the parents and of the children. I should say something about the older children. The older children disclosed absolutely nothing out of the ordinary in relation to the father, which is of some significance because the mother in her affidavit material referred to an incident some time ago where Z had had a spot of blood on going to the toilet. The mother referred to that in her affidavit, clearly with a view of implying that this may be the result of some wrongdoing by the father.
The Child Protection Service interviewed the two boys. Absolutely nothing came of that apart from evidence of a close attachment of the boys to their father. As I have said, the Child Protection inquiry was thorough, it was conducted at a forensic level and the child denied that she was touched inappropriately by her father. She avoided discussion, to some degree, of her father, and she was avoidant about discussion of tickling by her father.
The father was assessed against a sex offender risk scale and found generally to have a profile that was inconsistent with that of a sex offender. In short, the allegations were not substantiated, and the inquiry was closed. Somewhat surprisingly, given the material, an email from the Child Protection Service recommended continuing supervision. As I have noted, I have not been able to find the basis for that expression of concern in the materials provided from the Child Protection Service.
Since that closure of the inquiry there has been another piece of information added which was the Child Impact Report completed on 1 August 2022. That does not take matters much further. Y was not interviewed, but the boys made it clear that they wanted to continue spending overnight with their father or overnights. In the view of the child expert, the boys appeared to be suffering from the separation of their parents and their conflict quite seriously.
In the preparation of that report the mother made some further allegations about the father. She said that while they had been in the car some eight years ago he had complained about their sexual relationship or lack of a sexual relationship and threatened her with rape. The father denied that. Having regard to the fact that the claim was made about an event many years ago, it does not appear to have a great deal of bearing on what I need to decide today. Similarly, the mother made a complaint that about seven years ago during sex the father put a pillow over her head. The father did not deny that. It was said that that was indicative of risk in some way, though Ms Bosko was unable to say exactly how I should consider that episode in relation to the calculation of the risk of sexual abuse of Y. There is also reference in the Child Impact Report to the mother’s history of mental ill-health which was diagnosed, according to a report from her psychologist, as postnatal anxiety and intrusive, obsessive thoughts. I am not satisfied that has any particular bearing on the reliability of what the mother said Y said to her. However, it may have some bearing on what appears now to be the case, which is the mother is thoroughly convinced of the truth of her interpretation of what Y said as evidence of the father’s sexual abuse of Y.
The report also discussed the father’s suicidal ideation with reference to what the father had said to Dr G. The report referred to the father as denying any current thoughts of self-harm. Having regard to the assessment of risk of sexual abuse of Y, I accept that Y said something that might be interpreted of sexual impropriety by the father. However, the child did not disclose any such complaint to the investigators, even on repeated prompting. The father scored a very low score on the sexual offender scale and Dr G considered him to be a very low risk of being a sexual offender. That evidence, in my view, barely raises to the level of suspicion.
I consider that, taken as a whole, the evidence is indicative of a low risk to Y. The father currently lives with his mother and under the orders made by SJR Best the children were intended to spend five nights a fortnight with the father at the paternal grandmothers home. That is, from Friday to Monday morning on alternative weekends and on Wednesday night. That time has been suspended pending the outcome of this review. SJR Best made an order that the paternal grandmother was to supervise or be present and to undertake any bathing, toileting or changing of Y. Prior to SJR Best’s orders of 27 June 2022 the paternal grandmother was an agreed supervisor for the children when spending daytime with their father. There is no criticism made of the paternal grandmother as a supervisor, certainly not before me, and I consider that SJR Best’s orders are protective.
In relation to the risk of suicide of the father in the presence of the children, I consider that is a low risk on the basis of Dr G’s report, the father’s discussion with the child expert and his disavowal of any intention of self-harming. Taking all that into account, I am not satisfied that there is an unacceptable risk of harm to Y or the children more generally. That being the case, it appears the orders that had been made were orders that are appropriate in all the circumstances.
I should say that this is a re‑hearing, and I am not inquiring into the correctness or otherwise of the SJRs reasons or conclusions but, having read SJR Best’s reasons, I consider that those are the appropriate orders. There are further orders that are not the subject of SJR Best’s orders but they are orders proposed by the ICL that will provide for various assessments, including an assessment of the oldest child. There is to be a psychiatric assessment of both parties and an assessment of the mother for her liver function. These orders did not appear to be opposed.
Otherwise the application is dismissed and the orders of 27 June 2022 will be reinstated.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 8 September 2022
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