Bandoni and Milic

[2016] FamCA 956

FAMILY COURT OF AUSTRALIA

BANDONI & MILIC [2016] FamCA 956

FAMILY LAW – CHILDREN – Best Interests – Where the father has not seen or communicated with the child for three years – Where there are allegations of sexual abuse perpetrated by the father – Where the disclosures made by the child are ambiguous – Where the father is acquitted in criminal proceedings – Where the Single Expert does not reach a conclusion on whether sexual abuse occurred –  Where there would be a benefit of the child having a meaningful relationship with both parents – Concluded there is an unacceptable risk to the child while in the father’s care – Where supervised time would not transition to unsupervised time – Ordered that the child spend no time with the father.

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Mr Bandoni

RESPONDENT: Ms Milic

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Sydney

FILE NUMBER: SYC 4953 of 2013

DATE DELIVERED: 11 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 30-31 May; 1-3 June 2016; 18 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Clayhills Escobar Solicitors

COUNSEL FOR THE RESPONDENT: Ms Beck

SOLICITOR FOR THE RESPONDENT: Freedman & Gopalan Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Sydney

Orders

1. That all prior parenting Orders relating to the female child M born … 2007 (“the child”) are discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4. That the mother keep the father advised of the residential address of the child.

5. That the mother notify the father as soon as practicable if the child is diagnosed with a life threatening medical condition or suffers illness or injury requiring hospitalisation.

6. That the father may communicate with the child by sending a card and gift for her birthday and at Christmas.

7. That any time spent by the child with the father shall be as agreed between the parties in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4953 of 2013

Mr Bandoni

Applicant

And

Ms Milic

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect to the parties’ only child, M (“the child”), a girl aged eight and a half years at the time of final hearing.

2. The father is the applicant. He is aged 46 years and is a visual artist by occupation. He has his own business premises. The father is an Australian of Mediterranean heritage.

3. The mother is the respondent. She is aged 44 years and is presently a student. The mother is an Australian of Central European heritage.

4. The child has, since birth, lived, together with the mother, in the home of the maternal grandmother.

5. Until August 2013 the child regularly spent time with the father in his home.

6. After 12 August 2013 this pattern of regular time with her father ended dramatically. The mother raised concerns of inappropriate conduct by the father with the child. The mother feared sexual abuse had been perpetrated by the father.

7. The father has at all times denied abusive or inappropriate conduct with the child.

8. The child had a series of supervised visits with her father in October/November 2013 and daily telephone calls. Since then, other than for report interviews, the child has not seen or communicated with her father at all.

9. Both parties live in Sydney, about 30 kilometres apart.

History Of Relevant Events

1. The parties met in Australia in 1987 as teenagers.

2. In 2003 after a period of years in the United Kingdom the mother returned to Australia. The parties formed an intimate relationship but did not ever live together.

3. At different times each of the parties wanted the relationship to progress to something committed and exclusive. That progression did not occur. They maintained a friendship, which was often fractious, and occasional intimacy.

4. In March 2007 the mother learned she was pregnant with the father’s child. The father had been open with the mother about his preference not to have children. Whatever her ideas had been previously, once the mother knew of her pregnancy she was committed to having the child.

Birth of the Child

1. In late 2007 the subject child was born.

2. The father was present at the birth. He had accepted that he had a role to play in the life of the child.

3. The father spent sporadic time with the child during the first two years of her life, less than the mother considered he should. The parents differ about actual time spent.

4. It must have quickly become apparent to the parties that their ideas about how to raise the child were quite different. The mother favouring structure and routine; the father favouring flexibility and spontaneity.

5. As a result the mother came to regard the father as unreliable, immature and selfish. She certainly sent bitterly critical and insulting emails to him. The father came to regard the mother as rigid, critical and controlling of him. He resented her comments on his female partners from time to time and consulted a psychologist about establishing boundaries with the mother.

6. Sometimes however the parties got on well, ate dinner together, slept-over at each other’s house.

7. One thing the parties did share was a common intention to raise the child very differently to the way each of them was raised. They agreed that the rules around personal modesty and religious observance which had applied to their own respective childhoods would not apply to their child. This decision has had ramifications.

8. It appears to me that although the parties agreed on the parenting practices they both rejected, they never agreed on the parenting practices which should apply. Caught in this philosophical conflict between her parents, the child, who is intelligent and observant, developed behaviours which probably set her apart from her class mates. For instance, she became fascinated by her own genitals which she was taught by her mother to call her “xxx”. She regularly rubbed herself, perhaps for genital stimulation, perhaps to reduce anxiety, on the legs of family members. She was encouraged not to cover up and to be proud of her naked self. Her father showered with her especially to wash her hair. The mother was supportive of his doing so. She slept in the same bed as each of her parents.

9. From about age two the child began spending overnight time with the father, usually on a Saturday night. By August 2011 she was spending two nights per week with her father, a pattern which continued for approximately two years.

Events of August 2013

12 August 2013

1. On the morning of Monday 12 August 2013 the father took the child to the home of the mother after the child had stayed overnight with him. The mother dressed the child for school, the father made himself breakfast in the mother’s kitchen. Together the parents walked the child to school in an amicable manner.

2. During the early afternoon there was a friendly email exchange between them about obtaining goods from a supermarket.

3. That afternoon the mother collected the child from school. In the car the child made certain statements which worried and distracted the mother.

4. According to the mother the child had been talking about her ‘xxx’ for at least four months and rubbing herself against the mother’s leg. The mother had seen the child doing the same thing to the father’s leg. The mother was hoping this was a phase which would pass. She discussed the matter with the father. They were both hopeful that she would just stop doing it.

5. The father said the child had been behaving that way for a lot longer than four months but otherwise agreed.

6. In the car that afternoon the child was sitting in the back seat. The mother reports that the child was rubbing her vagina/genital area on her seat belt saying and singing “xxx rubbing, xxx rubbing.”  She then said, “Mummy, [xxx] needs a kiss.”  The mother responded,

   No, it doesn’t, what do you mean?

   ChildYes it does, women all over the world like it.

   MotherWhat do you mean?

   ChildYou can kiss [xxx] and lick it because saliva makes it soft,               it tickles [xxx].

   MotherWhy did you say that? Where did you hear that? Have you     heard this at school? Did you see Daddy doing that to           someone?

   ChildNo. Daddy does it to me.

7. The child further commented, “Mummy, you need to look at [xxx] in the mirror and admire [xxx]. Saliva makes it soft. [Xxx] smells nice. You have to look for hairs.”

8. The child then climbed through from the back seat, the car was parked, and sat in the mother’s lap.[1]

   [1] Affidavit of the mother filed 20/08/2015, pars 135-142

9. The mother had intended that she and the child would spend the afternoon with the paternal grandfather. Instead she cut that meeting short and returned home, turning over what the child had said in her mind. The mother contacted her counsellor and repeated the child’s statements to her.

10. On the advice of the counsellor the mother contacted a child psychologist.[2]  The psychologist advised the mother to contact the Department of Family and Community Services (“the Department”) and soon after, the mother did call the DOCS Helpline repeating the information about the child’s statements to an officer, Ms R. The mother did not provide identifying information.

    [2] Affidavit of the mother filed 20/08/2015, par 145

11. At 7.00 pm that evening the mother rang the father and told him she needed to speak to him urgently.[3] The mother told her own mother and the child that she had to attend a meeting at school and said nothing of her proposed meeting with the father or her concerns to either of them. The mother then drove to the father’s home. The advice from the Helpline had been not to speak to the father about it, but to make a formal report. The mother’s impulse was otherwise. In my view, her impulse to speak to the father was consistent with genuine concern about the child and was an indication of trust, that is, to give the father the opportunity to know what had been said and to say anything that he knew or felt might be an explanation.

    [3] Affidavit of the mother filed 20/08/2015, par 149, and Affidavit of the father filed 10/07/2015, par 73

12. When she arrived at the father’s home he was waiting and she repeated to him what the child had said. It is not in dispute that the father became immediately upset to the point of tears and hysterical yelling. The mother asserts, and I accept, that she was quite confronted by the father’s response, both by what he did say and by what he didn’t say. The  versions of each parent are not too different, but the father reports[4] that he said,

    You know there is no way I am capable of saying or doing anything like that. Why would I say that shit, why would I do that shit. You have to be sick and demented to do that shit. I don’t want to go to prison. Why would I do that, that is the greatest fear in my life. I would kill myself before going to prison.

    [4] Affidavit of the father filed 10 July 2015, par 75

13. The father says that the mother responded “I don’t know what you are capable of. Stop being so dramatic.”

14. The mother’s version is close but somewhat different. She reports that the father as shouting,

    I can’t go to prison. Do you know what they do to paedophiles in prison? I’ll get butt raped. They put barbed wire up their bums. I can’t go to prison, I’ll kill myself before I go to prison. I have lived my life so that I don’t cross the law and I end up in prison.

15. The mother says these statements made her angry and she responded to him as follows:

    I wish you hadn’t said that. What about our baby?  You’re an adult. If you have problems you can get help. You need to be a good Dad to our baby. You need to do the right thing. We need to take [the child] to a child psychologist. We need to find out where she got this language from. [5]

    [5] Affidavit of the mother filed 20 August 2015, pars 165 and 166 

16. The mother said she began to feel uneasy and wanted to leave the house, however she remained long enough to discuss the possibility both of a psychologist and of supervision. The mother was undoubtedly confronted by what she perceived to be the self-protective response of the father.

17. The mother was challenged in cross-examination with having come to the meeting with a document for the father to sign agreeing to supervision. Further that this scene was orchestrated as an exercise of attempted control over the father’s relationship with the child. Although supervision was discussed on that night I do not accept that the mother was intent on control. I conclude that her motive was to find out facts and act protectively of the child.

18. I accept that the mother was shocked that the father said nothing of concern for the child. I asked the mother if she agreed or not that the father’s lack of comment about the child’s safety was consistent with both guilt and innocence; guilt because of his fearful focus on imprisonment and innocence because he had seen the child that morning and knew she was her usual self. The mother readily agreed and said she had reflected on those things herself.

19. The conversation ended with the mother telling the father that the child could not stay with him anymore and that any further time would have to be supervised, and the father responding “You can’t just expect me to trust what you are telling me.”

20. At 9.17 pm that evening the mother rang the Department again, spoke to the same officer she had spoken to earlier and told her of the conversation with the father. The mother then learned that the child would be interviewed.

21. The father sent texts asking what the mother had said to the Department. I interpret this action as one of trust by the father that the mother would tell him the truth.

22. At 10.34 pm the mother made a formal report to the Department, that is, she was no longer an anonymous inquirer, but gave identifying details of the parties and the child.

13 August 2013

1. On the morning of the following day an officer from JIRT rang the mother and asked for the child to be brought in for interview. The father also rang the Department and was told that he would be contacted when needed.

2. The mother collected the child from school and took her straight to the office of JIRT at Suburb H. The mother instructed the child that she was going to talk to “[xxx] doctors” and further “you can tell the [xxx] doctors what you told me what Daddy does to you”. The child is reported to have said, [6]

   No. I only told you.

   MotherDon’t worry, it’s ok.

   ChildNo. It’s not true. I only told you.

   [6] Affidavit of the mother filed 20/08/2015, par 180

The first JIRT interview

1. On 13 August 2013 the child was interviewed by a JIRT team.[7] She was then five years and eight months old. The child made no relevant disclosure. She answered that there was nothing about either her mother or her father that she didn’t like. She was asked “does anybody touch you there [indicating the vaginal area]?” the child said “no”.

   [7] Exhibit 4

2. At Question 133, of the approximately 35 minute interview, the questions moved from being open to leading, based on information supplied.

3. The child was confronted with the fact that she had said to her mother “the [xxx] needs a kiss”. The child at first simply responded “no” and then clarified “well I did say that but I don’t really do that”. She repeated that she was “just playing around, didn’t really mean it. I told her that I was just playing around”. The child denied that she knew what the phrase “[xxx] needs a kiss” meant.

4. Further,[8] the child denied that she knew what her mother had been talking about, she said she “didn’t really know what she was talking about and couldn’t remember what she was saying”. She repeatedly said that she had just been “playing around” or that she “couldn’t remember” the statements made as they were presented to her.

   [8] Exhibit 4, interview transcript of 13/08/2013, questions and answer 154-158

5. She was then taken in a leading question to the fact that she had said to her mother that her Daddy had done that to her. The child again said “No. I was just playing”. She denied that anyone had licked her “xxx” and said she didn’t know where she had heard about it.

6. The child again confirmed that the mother had been telling the truth in repeating the statements about “xxx licking”.[9]  The child also said that if anybody touched her on the “xxx” the person she would tell was her teacher, and as a next priority Mum and Dad.[10]

   [9] Exhibit 4, interview transcript of 13/08/2013,question and answer 295

   [10] Exhibit 4, interview transcript of 13/08/2013, question and answer 308 and 309

7. The interview was concluded. The mother reports that the child was anxious and agitated after the interview.[11]  She said “Didn’t want Daddy to get in trouble. I don’t want the police to shoot Daddy dead.”

   [11] Affidavit of the mother filed 20/08/2015, par 182

8. On 14 August 2013 the father was interviewed by JIRT. He was told there had been no disclosure of wrongdoing by the child. The father attended with his brother and sister and reports himself as “could not stop crying”.[12] 

   [12] Affidavit of the father filed 10/07/2015, pars 85-86

9. Also on that day the mother rang the father and told him that the child had been seen by a psychologist at JIRT.[13]

   [13] Affidavit of the mother filed 20/08/2015, par 186

10. The mother sent an email to the father expressing her shock at what the child had told her. There is no doubt in reading the email the mother believed at that point that the child had been sexually abused by her father.

11. On 15 August 2013 the mother let the child’s teacher know that she was in the process of applying for a court order to restrict the father’s access to the child and that the child would be seeing a child psychologist. She asked the teacher to keep an eye on the child and advised that she would be taking a short break.[14]  The mother then went away with the child for five days to friends in Melbourne.

    [14] Affidavit of the mother filed 20/08/2015, annexure DD

12. On 19 August 2013 the solicitors for the father emailed the mother about organising some supervised time.[15]

    [15] Affidavit of the mother filed 20/08/2015, annexure FF

13. On 20 August 2013 the mother met with a psychologist at the Sydney Child Protection Unit.

14. On 23 August 2013 the father ceased paying child support.

15. On 26 August 2013 the father made an application to this Court for an order that he have sole parental responsibility for the child and that she live with him. [The father maintained this position before the Court for more than 2 years. He then changed his proposal to equal shared parental responsibility and residence with the mother].

16. The project between the parties of raising the child in an environment of personal freedom and parental co-operation/friendship had ended.

17. On 28 August 2013 the mother raised with the Department further statements made by the child to her and behaviour of the child with her which aggravated the mother’s fear that the child had been sexually molested by the father.

18. The evidence of the mother about that was that on the morning of 27 August 2013 the child was lying in the bed beside her as the mother lay on her back. The child climbed on top of the mother, straddled her with her legs and started to rub her vagina on the mother’s stomach. The mother’s evidence was as follows:[16]

    I was shocked and I said, I said, “Honey, I don’t like that”, and [the child] said “Everyone likes it.” And I said, “Well I don’t like it”, and she said, “Daddy likes it.” And I said, “Daddy likes you rubbing your [xxx] on his belly like that?” And [the child] said, “And on his face too.” And I said, “Well, I don’t like it” and I asked her to get off. And then she picked up her toy and she said big toy to the little toy, “You like it don’t you?” and she said, “You are so cute, you are so cute, you like it, you like it.”

The Second JIRT Interview

[16] Exhibit 21 – 5/03/2015, page 41

30 August 2013

1. On 30 August 2013 the child was interviewed for a second time by JIRT, at her school. Her teacher was present. The child did not make any relevant disclosure. She was not particularly open or responsive.

2. The child denied remembering what had been discussed at the first interview just over two weeks before.

3. When asked why she had been worried that “the police might shoot Dad” the child said she had forgotten the reason.

4. Unbelievably she said she had forgotten what xxx rubbing was. She did not want to discuss the topic and said so, “Can you please stop talking about that.” She explained that she felt “a little bit embarrassed”.

5. She said she felt good about not seeing her father but missed him.

6. In time she agreed that she did remember the previous interview. She also conceded that she had said she had “[xxx] rubbed on Dad’s face” but had been “just playing around” when she said it.

7. To the extent that it was submitted that the child had been pressured by her mother to make statements of complaint about the father, I do not accept that she was. The child appeared uneasy, conceding the fact that her mother had truthfully repeated what she had said to her, but her tone was one of minimising and withdrawing the significance of those statements. She did not appear to be a child trying to please anyone by what she said.

8. On 1 September 2013, Fathers’ Day, the mother contacted the father for the child to speak to him.

9. On 4 September 2013 there was a meeting at the home of the mother with the Department.

10. On 6 September 2013 the child began counselling on the basis of “[The child] has a secret”.

11. On 12 September 2013 the Department completed a Family Safety Risk Assessment and the child was considered safe in the mother’s care in accordance with the safety plan.

12. On 21 September 2013 the child used her mother’s phone to send a message to her father “I love you Dad”. The father responded in kind using two wise monkey emojis “speak no evil” and “hear no evil”. Such a message, also filled with hearts and balloons, could be entirely innocent and loving, or a message that a child could understand to mean not to talk and not to listen to what was being said.

13. On 3 October 2013 the mother filed two documents:

    i)A Response to the father’s Application .She proposed sole parental responsibility, that the child live with her, and for the child to have no contact with the father. [The mother has maintained this position since the filing of that document].

ii) A Notice of Risk setting out all relevant statements made by the child to her in relation to sexualised conduct and alleged abuse.

1. On the same day interim Orders were made by a Registrar (with ex tempore reasons delivered) for the child to spend time with the father as follows:

   a)On two occasions per week for periods of not less than three hours. Such time is to be supervised by a professional contact service including P Contact Service… costs of those sessions to be paid equally between the parties;

   b)A further session of supervised time, one time per week at the nomination of the father and at the sole cost of the father. (This option of a third weekly visit was not taken up).

   c)By telephone each evening at a time to be agreed between the parties.

2. Of the remaining 12 Orders two are significant in the analysis of events:

   10) The mother is restrained from taking the child to any psychologist/psychiatrist or like therapist without the consent in writing of the Independent Children’s Lawyer and the father or by order of the Court.

   11)The parties are restrained from discussing these proceedings and the allegations raised by the mother either with the child or in the presence or hearing of the child.

3. On 4 October 2013 the mother advised the child’s counsellor that she would no longer be bringing the child to counselling in accordance with the restraining order.

4. One week later on 10 October 2013 the mother contacted a senior health clinician at the Child Protection Unit and as a result of their conversation bought two books called ‘The huge bag of worries’ and ‘Some secrets should never be kept’.[17] The mother read through the books with the child. Those books were supplied after the trial in response to my request and became an exhibit. ‘Some secrets should never be kept’ is the story of a young boy having his genitals touched by an adult friend and being fearful of the consequences of telling his mother.

   [17] Affidavit of the mother filed 20/08/2015, Annexure JJ and Exhibit 25

5. On 12 October 2013 the mother had a conversation with the child and told her that she would be seeing her father the following day and “There will be a lady there with Daddy who will be watching over you”.[18]

   [18] Affidavit of the mother filed 20/08/2015, par 211

6. When the child asked why, the mother explained that the lady would be there “because of what you told me what Daddy did to you”. The child responded “Daddy doesn’t want me to live with him”. This statement is a surprising one. The child had never lived with her father. I cannot exclude the possibility that the father told the child that he did not want her to live with him in a telephone conversation.

7. When the mother asked why, the child replied “because he did those naughty behaviours on me.”  The mother asked “what naughty behaviours?”  The child replied “[xxx] licking in the shower.” The mother asked “in the shower? What did he do? How did he do that?”  The child, “he would bend down”. At that point the mother says that the child covered her face with a toy dog that she was holding in her hands, her voice was muffled and the mother could not clearly hear what she said but it sounded like “on his knee or he would lift me”. The mother did not continue the conversation but reported it to the Child Protection Unit.

Nine supervised visits[19]

[19] Exhibit 1

1. Between 13 October 2013 and 10 November 2013 there were nine periods of supervised time, involving four different supervisors, as well as daily telephone communication at 8.00 pm.

2. On 13 October 2013 the first supervised contact visit took place in the home of the mother. The mother left for the duration of the visit.

3. The supervisor told the father that tickling was not allowed nor was the child permitted to sit on his lap (as she had just done). The father is noted as reacting with surprise to the prohibition but said “ok”.

4. The visit was obviously enjoyable for the child and uneventful.

5. On 14 October 2013, the next day, the father filed an Application in a Case seeking to vary the interim Orders such that the supervised time with him be at his home or the residence of his parents and that the mother be responsible for transporting the child to wherever the time was to be spent.

6. The mother did not support such a change and there was a stern exchange of correspondence between the parties’ lawyers over implementation of the orders for supervision.[20]

   [20] Affidavit of the mother filed 20/08/2015, annexures KK and LL

7. On 16 October 2013 the second supervised visit took place. At least in this visit, if not others, the father was not strictly compliant with the conditions of supervision. The visit took place at a park. The child ran ahead and the father chased after her. The supervisor notes that the father “realising they’d raced ahead of me, turned back and apologised waiting for me to catch up”.

8. Subsequently and more seriously, at the beach, the father picked a spot a few metres away from where the supervisor was to build a sandcastle with the child. This caused the supervisor to move all of the gear “and sit closer as I couldn’t hear them properly”. The father is reported as commenting on the supervisor moving and apologising to him, saying he understood they needed to be within earshot.[21]  This statement supports the inference that the father deliberately moved out of earshot.

   [21] Affidavit of the father filed 10 July 2015, annexure M

9. The child is reported to have sat on the father’s lap on occasions. Further the father had asked her to sit on his lap on the swing. The supervisor commented in his summary “this did not appear to be an inappropriate behaviour”. The supervisor for the second visit was a different one than for the first visit. The supervisor clearly made his own judgment call on the issue but the father knew what the first supervisor had said three days prior. Apparently the father was content to take a risk that ignoring the injunction of the first supervisor would not lead to doubt and trouble.

10. Two days later on 18 October 2013 the child made a statement to her teacher at school.[22]  The mother reports that the child ran out of the classroom towards her and whispered in her ear that she had told her teacher,

    Mother         You told her what?

    Child            About [xxx] licking.

    [22] Affidavit of the mother filed 20/08/2015, par 226

11. Soon after, the acting principal spoke to the mother and advised her that the child had made a disclosure to her kindergarten teacher which had been notified to the Department.

12. On the next day 19 October 2013 the mother reports that the child said to her, “now that I told Mrs [A] [the class teacher], can someone stop him?”  The mother replied “stop him what?” to which the child responded “stop him doing bad things, [xxx] licking” and the mother replied “I hope so”. The child said “I don’t want to see Daddy tomorrow.”

13. On 20 October 2013 the third supervised visit took place. The mother reported in her Affidavit with concern that the father was reported to have lifted the child onto his lap on eight occasions over the three hours supervision period. This was the same supervisor as for the first visit. There is no reference in her report to why she had said nothing this time to the father about the child sitting on his lap.

14. On the evening of that day the mother reports that the child said to her, after a conversation about what makes people get fat that “Daddy told me that [xxx] licking is healthy and good for you”. The mother responded “It isn’t”, gave the child a cuddle and said no more.

15. The mother was not challenged with having fabricated this or previous similar statements. Again the spectre of secret conversations between father and child arises.

1. On 21 October 2013 the proceedings were allocated into the Magellan protocol of this Court.

2. On 23 October 2013 the fourth supervised visit took place.[23] This was another new supervisor. During this visit the father tickled the child and she laughed but asked him to stop. Again the first supervisor had told the father that no tickling was allowed and the father had agreed.

   [23] Exhibit 1 - Report inaccurately dated Wednesday 24 October 2013; the visit took place on

   Wednesday 23 October 2013

3. The father asked the child for a kiss and she pulled away. He picked her up and she asked to be put down. The supervisor reported that the father kissed the child on the lips twice, lifted her skirt to check for injury after coming off the slippery dip and the child pulled away. These may have been expressions of natural affection by the father but he was certainly not containing his behaviour to meet the circumstances. When the child ran up the hill to go home the father ran after her rather than calling her back. There is no report of the supervisor running with them.

4. The behaviour of the father was perhaps simply exuberant. However his lack of concern about compliance with the rules of supervision, even if they were inconsistent between supervisors, is of some concern. He must have known that the child would innocently report events to her mother, with further suspicion and conflict a real possibility.

5. The mother reports this conversation with the child immediately after the fourth supervised visit. The child told her told her that they [she and her father] would be going to the home of the paternal grandparents on the following Sunday, and then this,

   Child            Daddy promised he would never do it again.

   Mother         Do what?

   Child            You know, [xxx] licking.

6. Given his overall attitude during supervised visits I cannot rule out the possibility that the father took the opportunity to have a private conversation with the child relating to past events.

7. Of greater significance is that the statement by the child is inconsistent with the coaching/pressuring allegation raised on behalf of the father. It is most unlikely that the mother invented or coached the child to make a statement exonerating the father.

8. On 27 October 2013 the fifth supervised visit took place.     On this day the child was not feeling well. The supervisor was as for the previous visit.        The child greeted the father with a hug. The father kissed the child and she pulled back. The father verbally pressed for a kiss. The child smiled and turned her head. The father asked for a kiss on the cheek. The child pulled away and began to walk away. The father took the child’s hand and said it was rude she would not greet him with a kiss.

9. The father did not let the issue go. They hugged and he again asked for a kiss. The child again turned her head.

10. This behaviour by the father is inconsistent with a sensitive appreciation of the child’s situation. It reads as persistent and slightly overbearing especially as the father later challenged the child on the topic yet again why she had not greeted him with a kiss and asked if she greeted other people with kisses.

11. Later, while walking, the father said he would give the child a shoulder ride and picked her up. She asked to be put down. Later he took her hand and she pulled away.

12. At home, the father told the supervisor he wanted to talk to the child about what was happening (but not about court). He told the child he would like to talk to her. She said “no”.

13. The father persisted. Apparently without opposition from the supervisor the father is reported to have told the child “everything was alright and when she spoke to different people just to tell them the truth”. He added “no one would get in trouble”.

14. At the end of the visit the mother arrived home. In the presence of the mother and the supervisor the father hugged the child, fell back with her, they kissed on the lips, they hugged again, fell back, the child turned away from a second kiss.

15. The mother is reported as having told the supervisor she felt “very uncomfortable with [the father] and [the child] rolling around at the front of the house”.

16. There is a defiance and self-indulgence to the father’s behaviour which was not considerate of his daughter. This is especially so when he had seen the mother’s reaction to his behaviour and must have understood that her feelings could impact on the child.

17. On the evening of that visit the child is reported by the mother as looking sad and anxious at bed time. The mother told her not to worry about anything. The child then said: “Mummy, I’m sorry for not telling the truth”, “For not telling the [xxx] doctors the truth about Daddy doing [xxx] licking …”[24]

    [24] Exhibit 21 – 5/03/2016, page 46

18. On 30 October 2013 the sixth supervised visit took place. This visit appeared uneventful and enjoyable for the child.

19. On 5 November 2013the seventh supervised visit took place.

20. During this visit the father asked the child if she missed anyone from his family and whether it was ok with her that she was not seeing them. She nominated a cousin and the father said he would try to arrange something.

21. The child and the father wrestled on the picnic rug and later she sat on his lap. There was no comment reported by the supervisor, being the first supervisor, who had announced the prohibition.

22. On 6 November 2013 the eighth supervised visit took place.

23. The mother asked the supervisor to be alert to the father talking to the child about seeing his relatives as he had done so during a telephone call.

24. The previous supervisor had recorded such a conversation in her report.

25. Again the father was very physical with the child in front of the mother and supervisor. The child ran to him arms open, he fell back, she hugged him falling on top of him.

26. The father lay on the picnic rug and the child “tried to jump on him”. He lifted her above his head. The child stood and then sat on his stomach.

27. During the visit the father challenged the child about lying to him about where she had been at the time of their telephone call the night before. He admonished her about lying.

28. During that period of contact the mother took covert photographs from a distance. The supervisor thought it was a tourist taking flash photographs of the sunset, but the notes reveal that the father knew it was the mother. One of those photographs became an exhibit.[25] It shows the father lifting the child up so her crotch was close to his face. The child was not apparently unwilling, although she may have been. It could have been innocent physical play.

    [25] Exhibit 12

29. The pose suggests that the father may have been mocking or teasing the mother by his actions. One week later the child made a statement in interview that her father lifted her up in just such a way in the shower and licked her “xxx”.

30. On 10 November 2013 the ninth and last supervised visit took place.

31. On this day the child was ill and upset. The mother had contacted the father to let him know and invited him to come to the house. The mother told the supervisor that the father had responded angrily on the telephone to the child when she rang and asked him not to come.

32. The father did come to the house; he treated the child gently and kindly but asserted his authority again in respect to display of affection. He hugged and kissed the child then asked for a kiss. The child kissed him on the cheek and walked away. He directed her back, hugged her again before leaving.

The third JIRT interview

1. On 13 November 2013 the child was interviewed again by JIRT. This was the third interview. This was a lengthy interview and the child ultimately made disclosures suggestive of abuse. The interview began with the child very reluctant to talk. She was asked whether it was ok for the interview to be recorded and the child responded “no thank you” with an embarrassed affect. The child said she did not know why she did not want the interview recorded but when prompted to “give it a try”, the child said firmly “maybe not”.

2. Importantly the JIRT officer then went on to say: “the recording is just for us to keep, nobody else will look at it. Just us”. The child, with obvious relief,[26] relaxed and responded “ok”.

   [26] Interview 3 JIRT tape

3. This was a misrepresentation to the child of how the interview would be used. It is extremely difficult to know the cause of the child’s relief. It could be that she felt free to tell the truth. It could be that she was confident that her parents and others would not hear about it if she repeated something that was true or untrue. There are other explanations.

4. [Ultimately it was the central reason for the father being acquitted in the District Court at the close of the Crown case. The trial judge was unable to be satisfied that the child knew that there would be consequences of telling the truth or not].

5. On this occasion the child was interviewed from 10.12 am to 11.01 am with a very short break half way through. The child asserted that her father licked her xxx, he did it in the bathroom, and that it happened “four months ago”, “I was in the shower and he was in the shower with me. He picked me up, question “Can I lift you up?” and he did it.” 

6. The child described the incident as having taken place after rock climbing with her father. She remembered what she wore and what the father wore. Her explanation for why she was able to remember what the father wore was that he had been behind her throughout the rock climbing to keep her safe and she had always been looking back at him, “he was helping me rock climb and I was always looking down to see that he was there”.

7. The child was able to draw a diagram of the bathroom and to describe that her father had lifted her under the arms until his face was level with her genitals. She described her feelings “it feels yucky” and “I don’t like it”. She described being licked by the father’s tongue in her genitals; that she had felt embarrassed and it makes me “worry”. She was clear to say that it only happened once, that the father had licked the inside of her xxx and that she knew that because “the inside feels stranger than the outside”. She demonstrated being held face to face with the father, her legs on his shoulders, his face level with her genitals.

1. She then described an ordinary night of being in her pyjamas, watching television and sleeping.

2. The child was also asked why she had initially, that is on 12 August 2013, said to her mother “[xxx] needs a kiss”. The child said the following words with startling clarity and intelligence “I did say that but I didn’t mean to say that, I was trying to tell my mum that he did that and I didn’t want anyone else to hear”.

3. There was an emotional truthfulness about what the child said and the way she said it that makes it difficult to attribute her statements to coaching or fabricating, especially as she had come to the interview with the intention of not saying anything revealing, and did not agree to the interview being recorded.

4. Although the evidence is too uncertain as to time place and exact events to  support a finding of sexual abuse  I cannot rule out the possibility of an abusive event or events  having taken place at some time, probably in 2013.

5. Dr B, the Single Expert, said that although such an incident would have been troubling to a child of five, it would not have hurt her at the time and may not have adversely affected her feelings about the father.

6. Of course, in the three months after the child first raised “xxx licking” with the mother, a wealth of information in relation to protective behaviour was delivered to the child by the mother through books, by counselling and at school and she may well have come to understand the context and or significance of something she  experienced.

Events after the third JIRT interview

1. JIRT sustained the disclosures on the basis that it was more likely than not that abuse had occurred. An application was made for a Provisional Apprehended Violence Order (“AVO”) against the father by police.

2. The father declined to be interviewed.

3. Later that day the Department received a report by the father raising allegations of coaching of the child and mental health issues against the mother.

4. The mother was served with an order for assumption of care and responsibility to the Director of the Department. The child was assumed into care whilst continuing to live with the mother.

5. On 14 November 2013 the Department filed an application in the Children’s Court seeking an emergency care and protection order. This application was discontinued on the basis that the Director General intervened in these Family Court proceedings.

6. On 18 November 2013 the mother filed a Response to the father’s Application in a Case about the terms of supervision and asked that time be suspended.

7. On 19 November 2013 a Single Expert was appointed and time was suspended pending further order.

8. On 20 November 2013 the Department filed their Notice of Intention to Intervene.

9. On 21 November 2013 an interim AVO was made by consent and without admissions by the father.

10. On 27 November 2013 the mother made a statement to police.

11. On 4 December 2013 the Department filed a Response to an Application in a Case proposing orders for the child to live with the mother, not spend any face to face time with the father or in the alternative, supervised time. The Department noted their concern that if the child spent any time with the father, even on a supervised basis, this may result in psychological harm to the child.

Interviews by Single Expert

1. On 13 December 2013 the parties and the child who was by then approximately six years old, attended for interviews with Dr B.

2. On 6 January 2014 the Department prepared a risk assessment in relation to the child; that there was insufficient evidence to substantiate the father as a person causing harm. To some extent this was a position paper by the Department in contemplation of the matter proceeding to criminal charges.

Report of Single Expert

1. On 24 February 2014 the Single Expert Report was released. The report of 71 pages was a very careful and detailed analysis of events of the parties themselves and their relationship to the child. The central issue was identified by the Single Expert as follows:

   The central concern in the current deliberations before the Court is whether or not the value and benefit of having an enduring relationship with both parents is in any way contraindicated by the potential harm to the child in the future if the allegations of inappropriate sexual behaviour by the father were substantiated or whether the mother’s behaviour could be construed as intentional and an attempt to turn the child away from her father.[27]

   [27] Single Expert Report dated 17/02/2014, page 68

2. Dr B reflected on the strong affection he observed between the child and her father:

   She appeared to have quite a strong, positive relationship and seemed secure with him. There was also mutual affection displayed between and they had a capacity to play and enjoy each other’s company. There was no overt anxiety and [the child] herself did not indicate that she was at all concerned about seeing him.

3. The Report went on to reflect that if the Court determined that the allegations of inappropriate sexual behaviour are substantiated they may represent a character flaw in the father, such that the benefits and value of maintaining the relationship would have to be weighed up against any risks. The risk would have to be balanced against what appears to be a very close relationship with mutual interests and concerns, as well as affection between the child and her father.

4. The Single Expert also noted the importance of the mother for the child and a recommendation against rupturing the relationship unless there was evidence of significant emotional abuse or neglect “… which does not appear to be true in this case.”[28]

   [28] Single Expert Report dated 17/02/2014, page 68

5. The Court was urged to take into account that if the allegations were unfounded and that there had been a conscious effort by the mother to influence the child’s statements to create a false impression, then that needed to be taken into account.

6. Overall, having sounded those warnings, my impression from the Single Expert Report was that the benefit of the child maintaining her two most important relationships, that is, with her parents, outweighed unsubstantiated fears by the mother of sexual misconduct by the father, and by the father of emotionally abusive conduct by the mother.

7. Subsequently, the doctor changed his view.

Father is charged

1. On 7 April 2014 the father was charged with offences in relation to the child:

   a)Section 66A(2) Sexual Intercourse with a person under 10 years under the authority;

   b)Section 61M(2) Indecent assault of a person under 16 years of age.

2. The father pleaded not guilty.

3. On 17 April 2014 the father requested that the proceedings in the Family Court be adjourned pending the outcome of the criminal proceedings. There was no opposition to this course.

Addendum to Single Expert Report

1. On 15 May 2014 a further report by the Single Expert was released by the Court to the parties. Dr B had reconsidered his position having had the opportunity to view the JIRT tape of the November 2013 interview of the child. He had previously relied on the written transcript alone. He said this,

   It is only after having the opportunity to view the third interview conducted on 13 November 2013 that I am more confident that [the child] has experienced and disclosed that her father had in her terms “xxx licked” her external genitalia whilst in the shower that she said occurred on one occasion. My opinion has altered primarily due to having the opportunity to view the non-verbal interactions that [the child] displayed in this interview. Her physical demonstration of how the actual incident occurred is much clearer from viewing the material than reading the transcript. She used her body to clearly show how this occurred and when. She also made facial gestures to indicate that her father may have used his tongue to lick her vulva and this was something she reported as made her feel “yucky”. She said “I didn’t like it …”

2. Further in the report,[29]

   Her demeanour and manner of speaking throughout this interview is convincing. I did not form the view that she was not telling the truth. In her previous statements she denies being afraid of her father and enjoyed going there and trusted him. The event must have thus been very confusing and troubled for her in view of her close relationship. From my observations she continued to show that she has a close attachment with her father. Her denials in the first two interviews in my opinion having seen the video material is that she must have wished to protect him from what she concluded would be legal consequences. She had been reported by her mother to say that she was worried that the police may shoot him. She was vague though about the details regarding this matter in the second interview.

   [29] Single Expert Report dated 5/05/2014, page 3

3. The Doctor went on to reflect on the fact that having to come to that different conclusion, the father’s style of interacting with his daughter during supervised contact visits where he was very physically affectionate and kissed her in a way that was “not sensitive to the situation that he finds himself in and the allegations made against him that he may have “crossed the boundary” with his daughter either through thoughtless, inappropriate play or for some other motivation, possibly a misguided idea about sexual education.

4. During his oral evidence in the Hearing before me in July 2016, two years after the second report, the Single Expert came to a different view once again, having read the evidence given by the child in the criminal trial. He was much less confident that sexual abuse had taken place. There is no criticism directed at the Single Expert, he was candidly expressing the difficulty he had in coming to a conclusion about what had happened to this child as each new piece of evidence was revealed. His candour has been helpful.

5. On 18 December 2014 the mother filed an Application in a Case seeking authorisation to be directed by the Child Protection Unit at the Children’s Hospital to arrange such support as it nominated for the child.

Criminal Trial

1. On the three days commencing on 3 March 2015 there was a criminal trial in the District Court. The child was by then seven years three months.

2. The mother, the child’s teacher and the child herself, over two days, all gave evidence and were cross-examined. The child described herself as tired by the end of the second day. She had also had a nose bleed to contend with.

3. The child was taken in detail to her reluctance to be recorded in the third JIRT interview fifteen months earlier. She was confronted with the fact that the interview had been recorded and not kept private as promised. Many parts of it were read to her.

4. She was challenged about her failure to make disclosures in the first two interviews. She defended herself as she was accused of lying by omission “… I was embarrassed”. She said she didn’t feel comfortable. When asked why, she gave a spirited answer, “Because I’d only just met them, that was the first time I’ve seen them and then I have to give away my secrets.”[30]

   [30] Exhibit 21 – 4/03/2015, page 23

5. The questioning of the child about her position when she had been “xxx licked” could equally be interpreted as the Prosecutor misunderstanding the evidence of the child as the child giving evidence inconsistent with prior statements.[31]  The child described being lifted up by her father so they were facing each other, her genitals were level with his face. Her legs then became the issue: She thought they were straight and she was standing up. She was asked was she sitting on his shoulders to which she answered “No how could I be …” When she was told that she had previously replied to that question “probably, I don’t remember”, she was content to be mistaken.

   [31] Exhibit 21 – 4/03/2015, page 46 and 47

6. That issue of position subsequently, in the final hearing, caused the Single Expert to be less convinced that an incident of sexual abuse had taken place.

7. She was clear to say that her father had licked her “xxx” and that she had not wanted to tell police because she had never met them and was embarrassed.[32] She was cross examined about the state of her own memory at the time she was talking to JIRT Officers about earlier events.[33]

   [32] Exhibit 21 – 4/03/2015, page 20

   [33] Exhibit 21 - 4/03/2015, page 76

8. The father was not obliged to give evidence. The Trial Judge made a Prasad direction and the father was acquitted. The transcript of those three days of evidence became exhibits in these proceedings. His Honour the Trial Judge found that the interview conducted on 13  November 2013 suffered from “one very unfortunate flaw”:[34]

   I say unfortunate because the flaw is one that as a result this Court is in a position of not being able to regard that interview as any secure basis for assessment as to whether the Crown could indeed establish guilt beyond reasonable doubt on either the principal or the alternative count.

   [34] Exhibit 5 - 5/03/2015, page 2

9. The conversation between child and interviewer about whether or not the interview should be recorded was included in the judgment and then this conclusion:[35]

   An inescapable conclusion arrived upon on those interchanges is that whatever the good intentions of those engaged in crime interview process its effect was to lead the witness in a position whereby this potential and crucial conversation was conducted in a setting where there could be no basis for concluding that she felt that she was indeed under an obligation to tell the truth. This was not withstanding the interchanges that had taken place on each occasion as to truth or lies. If in fact there was some feeling that she should tell the truth there was nothing to suggest to her that there would be any consequences in the event that she did not do so.

   [35] Exhibit 5 - 5/03/2015, page 3

10. What I have described as the misrepresentation to the child by the JIRT interviewer that the interview would not be recorded and nobody but the interviewer and the child would know about it, lead to the acquittal direction. It cannot be said that the outcome of the criminal trial was one of acquittal after a testing of all evidence. The father did not give evidence.

Events after the Criminal Trial

1. On 7 March 2015 the matter came back before a Registrar of this Court and was listed on 27 March 2015.

2. The mother foreshadowed an application to discharge the Single Expert and to appoint another one. Other directions were made for trial.

3. On 18 May 2015 the child’s file with the Department was closed.

4. On 2 July 2015 the Department confirmed the decision to take no further action in relation to the child. It could not have been otherwise.

5. On 10 July 2015 the Department filed a Notice of Discontinuance in respect of their intention to intervene.

6. On 10 July 2015 in support of that Notice, there was an Affidavit by Ms Y, Casework Manager, on the basis that the child’s case had been closed and that the Department was not in a position to advance a case as a party to the proceedings, that is, the matter had simply become a contest between the parents about the appropriate parenting outcome.

Application for second Single Expert

1. On 15 July 2015 the father filed an Application in a Case and supporting Affidavit seeking the appointment of a new single expert.

2. On 30 July 2015 orders were made for the mother to file any application she had in respect of the report.

3. On 5 August 2015 the mother filed a Response seeking to have the father’s application dismissed but in effect, agreeing that a second single expert should be appointed. The father had nominated a proposed alternate expert. The mother now nominated in her Response a different alternate expert.

4. On 21 August 2015 both applications for alternate single experts were dismissed for the Reasons[36] given at that time. The hearing dates were confirmed.

   [36] Reasons for Judgment dated 21/08/2016

Father amends his Application

1. On 9 December 2015 the father changed his position before the Court. A Minute of Order was provided proposing that the parties share parental responsibility and that the child continue living with the mother.[37] There was also provision for therapeutic counselling to assist in the restoration of the relationship between father and child, followed by a regime of time ultimately to four nights per fortnight.

   [37] Exhibit 2

2. I infer from this change of position, to residence with the mother, that the father was confident about the capacity of the mother to meet the child’s needs as primary carer. This is so, whether or not the change resulted from a favourable outcome for the father from the criminal trial.

3. In his first affidavit[38] the father denied any inappropriate conduct with the child and said this:

   I am concerned about [the mother] and her mental health. I have held such concerns for a long time, but these allegations have now cemented my concerns.

   [38] Affidavit of the father filed 27/08/2013, par 52

4. Whatever concerns the father had, they were not sufficient for him to make any move to bring the child into his care prior to August 2013. His application for the child to live with him was prompted by the report to authorities of allegations by the mother of his possible abuse of the child.

Application to adjourn Final Hearing

1. On 14 December 2015 the matter came before me on the basis that there may be further charges against the father in respect of material said to have been found on the father’s computer by the mother. The proceedings were adjourned.

2. On 28 January 2016 the May 2016 hearing dates were confirmed, no further charges having been brought.

Final Hearing

1. The matter proceeded to hearing before me on the five days commencing 30 May 2016 with all evidence concluded during that period. An additional day, 18 July 2016 was allocated for submissions. My decision was then reserved.

2. The issue for the Court to determine was whether, on the balance of probabilities, the child has been sexually abused by the father and if there is no such finding, whether there is an unacceptable risk of abuse of the child, and if so, what orders should be made consistent with her safety.

Evidence

1. The documents relied on were as follows: 

   The Father-Mr Bandoni

   (a)Minute of Order 9/12/2015 (Exhibit 2);

   (b)Initiating Application filed 27/08/2013;

   (c)Affidavit of the father filed 10/07/2015;

   (d)Affidavit of the father filed 27/08/2013;

   (e)Affidavit of the paternal aunt Ms V filed 10/07/2015;

   (f)Affidavit of the father’s friend Ms L filed 10/07/2015;

   The Mother-Ms Milic

   (g)Minute of Order  14/12/2015 (Exhibit 3);

   (h)Response filed 3/10/2013;

   (i)Notice of Risk filed 3/10/2013;

   (j)Affidavit of the mother filed 20/08/2015;

   (k)Affidavit of the mother filed 3/10/2013;

   (l)Affidavit of the maternal grandmother Ms T filed 15/10/2015;

   Affidavit of the mother’s friend Ms U filed 15/10/2015;

   (m)Affidavit of the child’s teacher Ms A 25/11/2015;

   (n)Affidavit of the mother’s friend Ms N filed 19/11/2015;

   The Independent Children’s Lawyer

   (o)Minute of Proposed Order (Exhibit 24);

   Reports and Other Affidavits

   (p)Affidavit of Ms E - Acting Manager Casework D-FACS [characterised as Magellan Report pursuant to Orders 02/12/2013], filed 04/12/2013;

   (p)Report of Single Expert - Professor B dated 17/02/2014; and

   (q)Second Report of Single Expert dated 05/05/2014;

   (r)Affidavit of Ms Y filed 10/07/2015.

Oral Evidence

The Father

1. The father presented as an intelligent man who very much wants to restore his relationship with his only child. Other than for interviews for the Single Expert Report and in the District Court, he has not seen or communicated with his daughter for three years.

2. He conducted himself with dignity. He suffers from hearing loss and used a hearing loop to fully participate in the proceedings.

3. He was inclined to blame the mother for his loss of the relationship with the child but not entirely.

1. The ultimate submission made on his behalf was that he had remained respectful of the mother’s ability to parent the child but that, to at least some extent, the reaction of the mother to the father to doing what was described as “creating boundaries” between the father and the mother, led to allegations of abuse of the child.

2. In his trial affidavit the father dealt with the allegations of abuse in four paragraphs[39]. He denied abuse of the child, nor having acted inappropriately. The father focused on the fact that the allegations made by the child in the third interview in November 2013 included a reference to abuse having taken place in the shower, on a weekend after rock climbing.

   [39] Affidavit of the father, filed 10/07/2015, pars 15-18

3. The father presented evidence that the last reported incident of rock climbing had been two months prior, annexing a copy of some records from the rock climbing venue. He asserted that the child had not stayed overnight on that day and presented evidence[40] to support that assertion. The mother having contacted him to complain that the child was trying to call him and that he had been unavailable.

   [40] Affidavit of the father filed 10/07/2015, Annexure C

4. To pin such a specific response to a reference by the child in November 2013 to an event having occurred three or four months before is understandable enough given what the father’s counsel referred to as “an horrific three years”. It is understandable that every possible explanation for the child’s statements was undertaken by the father.

5. The evidence suggests that the father had harboured an extreme fear of ever being put in prison well prior to these events. He had been locked in a prison cell as a child, “it freaked me out completely”. He has unsurprisingly continued to be cautious and appropriately guided by legal advice.

6. His denial was couched in these terms “I did not sexually abuse [the child] nor act with her inappropriately at any time”.[41]  The father did not specifically deny that he had licked the child’s genitals in the shower or at all; rather he focused on the impossibility of the timing of such an event.

   [41] Affidavit of the father filed 10/07/2015, par 15

7. There were odd aspects to the father’s evidence. He asserted that he had found it difficult to get the child to sleep in her own bed at his house. He attributed this to the fact that the child usually slept in the mother’s bed in the mother’s home. He asserted that he had always encouraged the child to sleep in her own bed in both houses, but it was difficult to have the child sleep in her own bed in his home due to his concerns about the height of the bed, an elevated loft style bed, and her active sleep. However the father did nothing to rectify that situation, for instance, by providing a bed on the ground. The child herself referred to being frightened of being up so high. There is nothing sinister about the child sharing a bed with each of her parents. It is simply what she did, but it is odd that the father, aware of his own fears and the child’s about the height of the bed, did nothing about it.

8. The father described himself as being in a perpetual state of powerlessness, frustration and fear in relation to the mother and that nothing he could do to change his behaviour appeared to be sufficient to meet her standards.

9. There was lengthy material tendered about the inability of the parents to understand each other or to please each other and long detailed emails to each other, complaining and apologising in equal parts on both sides.

10. In the same email in which he made the statement that nothing he could do met her standards the father apologised for the upset he had caused the mother “Speaking gruff and being mean making rude comments, all of it. I am sincerely sorry”.[42]

    [42] Affidavit of the father filed 10/07/2015, Annexure H

11. The mother certainly made some blistering attacks on the father, “ignorant, ego-driven” and worse.

12. Nevertheless, the parties spent a lot of time together to facilitate the child developing a full relationship with both of them, which she did.

13. The father represented the mother to his therapist as a woman with “a variety of personality disorders such as narcissistic, paranoid and obsessive compulsive disorders”, “very difficult to get along with, extremely rigid and critical of others”.[43] Given his contentment with the child living with the mother, I consider that these statements may have been made to elicit sympathy or praise from the therapist for his putting up with her behaviour rather than being the truth as he perceived it.

    [43] Affidavit of the father filed 10/07/2015, Annexure K

14. Having had the opportunity to reflect on the events since August 2013 the father gave the mother no credit for having taken the child’s initial statements straight to him as her first course of action despite advice that she should not. In my view it was consistent with the history between the two of discussing the child’s progress and needs, perhaps obsessively and often disagreeing but talking to each other as parents. It is what the mother did on this occasion. It was a courageous and child focused thing to do.

15. The mother was shocked that the father responded in terms of his own welfare without asking about the child or reflecting on whether a third person was involved. His response was not the reassurance the mother had looked for, rather it heightened her fears.

16. The father presented this highly emotional conversation as an attempt by the mother to control him and blackmail him into having supervised time with the child. The reason put forward for her behaving this way was that she was reacting to the father’s new approach of putting up boundaries so that he would no longer be controlled by the mother.

17. There may have been such a recent turning point in the parties’ relationship but I consider it is a farfetched explanation in this context.

18. The evidence of the father is that as early as 2010 he had sought assistance from a psychologist “to deal with the Respondent’s controlling behaviour towards me”.

19. On the day that the mother confronted the father with her fears the parties had together taken the child to school on Monday morning after what had apparently been an uneventful weekend.

20. It is improbable that the mother was simply biding her time before launching allegations in such a manner as a means of revenge for the father withdrawing from her.

21. It is an agreed fact that about 8.30 pm during the course of this conversation between the parties, where the father’s own evidence is that he was in shock, crying and screaming, that the father told the mother that he wanted to call the child to say goodnight to her and the mother said, “Ok, good idea. Call her but don’t tell her I’m here.”  The father rang the child who appeared to be her usual self. The child apparently had no inkling of trouble between her parents.

22. It could hardly be the case that if the mother was determined to punish the father  by  turning  the child away from him, that such a spontaneous event could have occurred in that way.

23. The father’s very reasonable position in his affidavit was that in his view the child had said something to her mother in August 2013 which was misinterpreted by the mother and which she had then used against him.

24. During cross-examination the father, through his counsel, postulated that possibly the mother’s actions were malicious. However despite submissions on the father’s behalf which were somewhat stronger in terms of the mother’s actions being malicious I concluded that the father himself maintains true respect for the mother as a parent. I am supported in this view by his expressed opinion that if orders were made for him to resume spending time with the child that the mother would be “big enough to put [the child] first”.

25. Another aspect of the father’s evidence that was odd was that he apparently failed to understand the likely impact on the child of having been interviewed, questioned, cross-examined, counselled and educated about possible sexual abuse.

26. There was a lack of empathy for the child in the father’s insistence during supervised time on maintaining exactly the same rough, physical, overtly affectionate hugging, kissing, tumbling, having the child on his lap, running after each other. It seems inconsistent with a fatherly understanding that her life had been made more difficult by events beyond her control.

27. The Single Expert assessed a strong loving bond between father and child and the father as having “a strong need for affection”.

28. I accept that he has a lot to offer the child. He encourages her curiosity about the natural world and is open to serious discussion with her. He is playful and exuberant, enjoys running, climbing, swimming and making activities fun.

29. Such a relationship is a lot to lose for a young child with no siblings.

The Paternal Aunt – Ms V

1. The paternal aunt is 48, married with three teenage children. She spoke positively about the father as a brother and an uncle to her children. She also spoke positively of the mother as having been part of the extended family and comfortable in the home of the paternal grandparents.

2. The paternal aunt expressed her willingness to act as a supervisor if the Court required that. However in her cross-examination I formed the impression that the paternal aunt was highly critical of the mother. She had not believed her when the mother got in touch in May 2015 and said “[The father] needs to get help, I want you to see [the child]”. The paternal aunt agreed that she had not thought the mother was genuine on that occasion. Further, she believed that the mother had created or concocted a situation in relation to the allegations. She candidly and straight forwardly said that she was certain there had been no sexual abuse of the child by her brother and further, that there was no need for the child to be supervised.

3. I accept when the paternal aunt said “If I was ordered to be a supervisor I’d be a supervisor 100 per cent”. Given her beliefs, honestly stated, which is to her credit, the mother is unlikely to be confident that the child would be safe in the presence of the father, supervised by the paternal aunt. More significantly, given that the paternal aunt believes that the mother has at best misinterpreted, but probably concocted the allegations, it is less likely that she would be able to maintain vigilance over time.

Friend of the Father - Ms L

1. Ms L is in her early forties and has been a close friend of the father for 20 years.

2. She was positive about the father’s skills as a father, identifying the physical relationship between himself and the child wrestling and doing acrobatics. She described the mother as intense, hyper alert, and from her perspective, unnerving and disturbing.

3. I conclude that Ms L is a warmly, supportive friend of the father who sympathises with the impact on him of the events of the last three years.

The Mother

1. In his first report the Single Expert described the mother as follows:[44]

   [The mother] presented as very conscientious and very mature and engaged in her role as parent. She is clearly of above average intelligence and well educated. She had a somewhat more difficult childhood than [the father] from their history and accounts. She had a very strong attachment to her stepfather and a very troubled relationship with her biological father [who is schizophrenic]. To some degree this may have had a bearing upon her beliefs and attitudes and way of relating to [the father] and his role as a father. She definitely has very strong opinions about parenting and roles and responsibilities. She presented as much more serious and somewhat more obsessional in her approach to parenting than [the father].

   [44] Single Expert Report dated 17/02/2014, page 70

2. This assessment accords with my observation of the mother in the witness box. She presented as intense, thoughtful and worried. I concluded that she has reviewed her own actions and those of the father, has found herself wanting in some respects and is convinced that the father has used the child in a sexual way.

3. When it was put to her that she had encouraged and allowed the father and child to shower together regularly, she responded spontaneously “I trusted him”. The use of the past tense was apt, it is very clear that the mother no longer trusts the father to any extent.

4. I found her to be an honest witness, meticulous as to detail.

5. The mother was repeatedly challenged in cross examination and she appeared to carefully reflect before answering and giving concessions if necessary. One example of this is the evidence of the maternal grandmother, interpreted by the father as the maternal grandmother having offered the child a gift in return for telling the JIRT team about “xxx licking”.

6. Although the mother genuinely denied that that was what her mother had done, in response to the proposition “You can’t say that those words weren’t said”, her answer was, quite clearly and calmly, “Of course I can’t”.

7. She also stated that she could not interpret what the child had said, or explain why she had interpreted things as she had. The mother denied that she had tried to perpetuate in the mind of the child, the truth of xxx licking. Her response was, “It’s her truth, she said that”. Her response was consistent with her willingness to regard the child as separate, her experiences and separate from her and with an independent relationship with her father.

8. When the proposition was put that the father had told the mother that she was “controlling, over bearing and impinging on his relationship with the child” the mother responded calmly, “He always thought that way”. In my view, that is consistent with the evidence of the father about attending a psychologist at least since 2010 to help him manage his relationship with the mother.

The maternal grandmother – Ms T

1. The maternal grandmother gave evidence with the assistance of an interpreter.

2. The maternal grandmother was immensely distressed by what had happened in her family. Her daughter and granddaughter have lived with her throughout the latter’s life. She also regarded the father as part of her family. She said so and expressed fondness for him.

3. I formed the impression that the maternal grandmother, having been a more conventional and strict parent, was bemused by the way this child was raised by her own daughter and by the father.

4. Although she had seen the child “xxx rubbing”, “rubbing herself on her mother’s leg and her father’s leg” the maternal grandmother was emphatic in response to

   QuestionDid she do that to you?

   AnswerNo, never.

   QuestionNot once?

   AnswerI’m sure.

5. She agreed that the child usually, but not always, slept in the mother’s bed. Sometimes, but not much, showered with her mother, and showered with her father when he was in the household on every occasion.

6. The maternal grandmother had been hurt and bewildered by the conduct of her granddaughter in the second half of 2013.[45]  She had been helping the child get ready for bed after her shower, that she was naked in her bedroom dancing around and her grandmother saw her looking at her own vagina. She asked the child what was she doing and the child responded “My Daddy takes photos of me like this”. Her unchallenged evidence was that her response to these statements was to say nothing, “I did not say anything further as I assumed it was ok as I knew that [the father] worked as a professional [visual artist]”.

   [45] Affidavit of the maternal grandmother filed 15/10/2015, par 12

7. In her oral evidence, the maternal grandmother made it clear that she remembered this exchange “It hurt me. I was in such terrible shock”. This must have been a reference to the event which followed which was that the child is reported to have then said to her grandmother, “Nana, do you want to rub my [xxx]?”  When the maternal grandmother said “No, I don’t want to do that”, the child said “You don’t but Daddy does is for me.”  The grandmother responded “I don’t know what your Daddy does but not me.”

8. The maternal grandmother described herself[46] as not wanting to cause trouble and not fully understanding what the child was saying.

   [46] Affidavit of the maternal grandmother filed 15/10/2015, par 13

9. In her oral evidence, crying as she said it, she gave this evidence, “I did not mention anything to [the mother] as I was confused and not fully understanding, because I didn’t believe her father, her blood, could do that. I was confused and couldn’t understand how a father could do that but I understand what [the child] was saying. I was shocked, I’m really old fashioned.”

10. I had the very clear impression that the maternal grandmother had always had her doubts and concerns about the parents’ behaviour with the child but their methods of child raising was so different to her own that she was torn between minding her own business and challenging them, particularly her own daughter. She had the experience of asking her daughter about the child showering with her parents and had been told “We’re going to bring up our child the way we want to. You’re old fashioned.”

11. The maternal grandmother was pressed in cross-examination that if she had really heard the child say in the context of “[xxx] rubbing, Daddy does it for me” that she would have told her daughter. The response that “I didn’t want to jump and cause trouble and come out as old fashioned” appeared to me to be credible, especially as the maternal grandmother has a high regard for the father “Yes, as much as I know, [the father] was a good father and I trusted him”.

12. I accept her evidence that the father is not discussed in the household, “We never talk about her father, she has a photo and an album but we never talk about him. I don’t wish to talk about it. He knows that.”

13. The maternal grandmother clearly loves her family which has included the father and is wounded by the events that have unfolded over the last three years.

14. The maternal grandmother was asked whether she had told the child that if she told the truth to the JIRT team that she [the maternal grandmother] would give the child a gift for her birthday. The response was that the maternal grandmother had always told the child to tell the truth but a denial of their being a promise of a gift on that account. Although it was the case that a birthday gift had been given, having observed the maternal grandmother I do not consider that she would bribe the child to make particular statements and there is no evidence to suggest that she did that. At its highest, the allegation is that a bribe was offered to the child to tell the truth.

The child’s teacher – Ms A

1. The child’s teacher had given evidence in the District Court proceedings. She had been present when the child was interviewed by JIRT on the second occasion and was the recipient on the disclosure by the child which led to the third JIRT interview.

2. My impression is that the teacher was committed to supporting the child despite the length of time and the obligation to give evidence in two courts.

3. She was a straight forward witness and a careful one. For instance, she was asked what the child had told her and she said “I haven’t forgotten but I wouldn’t like to say exactly what she said.”

4. The teacher was on solid ground about the child herself. She denied the proposition that she was a child that liked to please people, “No, she is not easily influenced by peers. She is quite mature, made her own decisions, resolved things herself”.

5. The teacher was clear that in her view the child was not anxious or under pressure from the mother “No”. She was candid in her assessment of the parents. She had been impressed by them and agreed to the proposition that they were model parents. Certainly she agreed that from her observation the father was a good father.

6. The teacher in more general evidence observed that the child was not as social as the others, she isolated herself a little bit, colouring in and being quiet, reserved in her nature and a little bit inclined to withdraw.

Ms U and Ms N (friends of the mother)

1. These two witnesses were briefly cross-examined. They were open and straightforward and conceded a loving relationship between the child and her father and made positive comments about the child herself.

The Single Expert – Dr B

1. The Single Expert did not conceal how difficult he thought it was to assess what had occurred for the child, that is, whether she had been abused and to make recommendations that would best promote her future welfare.

2. He had read the transcript of the District Court file several times. He considered her description of events was plausible although there was a little bit of ambiguity in what she had said. This was in relation to the position of the child when the “xxx licking” was taking place. He confirmed that sexual abuse seemed more likely when he had watched the JIRT audio visual tape rather than relying on the transcript because of the child’s affect and the way she moved her body to explain what had happened.

3. The Single Expert was challenged on his conclusion that her presentation indicated to him that she was telling the truth. When the question was put to him,

   What do you say is your expertise for concluding that her demeanour and manner of speaking suggest that she was telling the truth?

   AnswerI may have gone beyond my expertise. I concede that. I can’t rule it out. I may have overstated my position there.

4. However, he then went on to say that clinical judgments observing people is something that he routinely does professionally but not resiling from his concessions that he was not an expert on assessing truth telling “I’m never 100 per cent convinced that I am accurate”.

5. I accept the evidence of the Single Expert which was transparent in his two reports and oral evidence about that area of uncertainty and others.

6. I was assisted by his statements that children over report and under report and that veracity and reliability were a difficult judgment to make.

7. In his first report the Single Expert was less certain about the validity and factual nature of events. In his second report he was more convinced that the child was talking about something that could have happened. He conceded that the issue of the position of the child was a bit confusing but noted that the child “never retracts the allegation”. I endorse the significance of that statement. During her cross-examination the child indeed was clear to say “He didn’t talk to me about it but he did do it”. Ultimately the Single Expert said that he had a greater level of reservation about abuse having occurred having read the transcript of the criminal proceedings. He described the child’s statements as far less convincing, less clear and consistent.

8. The Single Expert noted that he felt some doubt about the father’s truth telling given that he had misstated or glossed over his wish for the termination of the mother’s pregnancy when it was first announced to him.

9. The issue of the maternal grandmother was raised with the Single Expert where she had referred to watching the child dancing around naked, looking at her own vagina, and inviting her grandmother to “rub [xxx]”. The doctor’s view was, if it was found to be reliable, then it would affect my views and there might be more to be told. The point was properly made that the father had not been cross-examined about that issue and particularly as to whether or not he had taken photographs of the child naked and examining her own genitals. I can come to no conclusion about it in those circumstances.

10. The Single Expert said that if there had been a single event in the shower where the father “xxx licked” her vulva, that would be sexual abuse, or could be construed as sexually inappropriate conduct. He noted that there was no allegation of any other event despite unlimited opportunities including the father and child sharing a bed.

11. The Single Expert recommended against putting the child through any counselling if there was no evidence of any present adverse effect for the child and she was not overtly traumatised. I accept this professional advice particularly in circumstances where the child has been compelled to be cross-examined and interviewed searchingly on many occasions.

12. The Single Expert commented on the child identifying in the third JIRT interview that the incident that she described as “[xxx] licking in the shower” took place “three months ago or four months ago”. He expressed the view that a child of that age might have difficulty with time lapse.

13. Ultimately, the Single Expert concluded that he may have been too strong in the stating of his opinion in the Addendum Report but there could have been an event in the shower for the child.

14. I infer from this evidence that the Single Expert entertains the possibility that there could have been an abusive event for the child but that he now holds the view that he expressed himself too strongly in that Addendum Report.

15. The Single Expert confirmed that the child has a close, warm attachment with her father but an event may have occurred, for instance sexual gratification for the father, with the child unaware of the implication.

16. I can conclude that the Single Expert was left uncertain and it is certainly a difficult situation. I endorse the comments of the Single Expert on the strangeness of the father’s conduct during supervised visits in October and November 2013 and inappropriate statements overtly and perhaps covertly made to the child. There is a thread of self-protection in the evidence of the father’s conduct, together with his reversion in 2015 to accepting that the child should continue to live with the mother.

17. I am satisfied that the father was self-protective in his application for residence but never uncertain about the mother’s capacity to meet the child’s needs. If that is so, it is inconsistent with the position that the mother would have carefully manipulated the child to make false or concocted statements in the way she did, particularly teaching the child to talk about her genitals in the context of alleged cunnilingus in order to make those statements. It would be monstrous for the mother of a five year child to do that and the most persuasive evidence of the fact that the mother is not monstrous is the father’s own assessment of her in his oral evidence and his formal position before the Court.

Ms Y, Ms F and Ms E

1. The involvement of the Department concluded when the father was acquitted in 2015. There were conflicting views about whether abuse should have been substantiated, although clearly the prevailing view was that it should which also led into charges against the father.

2. Ms F was cross-examined having been drawn into the proceedings on the basis that she had undertaken a file review in order to try and make sense of all of the competing information.

3. Nothing about her conduct is a cause for criticism by the Court, although she may have had this misapprehension when required to attend.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Best Interests of the Child

1. I am satisfied that there would be a benefit to this child of having a meaningful relationship with both of her parents.

2. Her mother has been her primary carer as a single parent but her father was ever increasingly involved in her life until 2013.

3. In this case however, there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse. I am required by the legislation to give greater weight to the latter consideration, that is, the protection and safety of the child. I have concluded that there is an unacceptable risk of abuse to this child based on the following factors:

   a)The statements made by the child to the mother over a period of months commencing in August 2013;

   b)The child’s own disclosures in a JIRT interview in November 2013 and in 2015 in the criminal proceedings in the District Court;

   c)The reaction of the mother to initial statements of the child which was one of initial trust and confidence in the father and subsequently turned to certainty that there had been sexual misconduct by him as the child continued to make statements to her suggestive of that;

   d)The substantiation by the Department of abuse and subsequent criminal charges being laid by Police;

   e)The fact that the acquittal of the father was based on a Prasad direction related to the Court being unable to be confident that the child knew there would be consequences of telling the truth or lying. The father accordingly not giving evidence and having that evidence tested;

   f)The Single Expert, who in a most transparent and professional way set out his changing views over a period of more than two years. First highlighting the significance of the warm and secure relationship between the child and the father and the benefits of preserving it; then a change to being concerned having seen the audio visual tape of the child’s third JIRT interview that there had been interference which the child had communicated, both through language and body language; then to being less persuaded of abusive conduct having read the District Court proceedings and consider the confusion in the child’s evidence about the mechanics of abuse described by the child;

   g)The conduct of the father over the course of the last three and a half years. On his own evidence, an extreme reaction which was entirely self-protective when the mother first repeated the child’s statements to him; his uncontained and thoughtless conduct with the child during the course of nine supervised visits towards the end of 2013, including the possibility of secret conversations, warnings and encouragements during brief unsupervised moments during supervised visits;

   h)The father’s own confidence in the mother as a parent, both before the events of August 2013 when he was content for the child to live with the mother and resisted spending as much time with the child as the mother would have liked in the very early years and a reversion to residence with the mother after the acquittal. This is not a criticism of the father, rather I place weight on the fact that the father trusts the mother to be a good parent although he is very critical of her behaviour towards him. I have concluded that if the father genuinely believed that the mother had coached or manipulated the child into making the statements that she has made, with all the attendant, emotional damage which he as an intelligent man would understand as a consequence, then he would not express through his counsel his view that the mother had the capacity to meet the child’s needs.

Additional Considerations

1. The child has not spent time in the ordinary way with her father for more than three years. Until the breakdown of that relationship the child loved her father and probably still does. To anyone who asked, she replied she missed her father and enjoyed seeing him.

2. The presentation of the child on the three audio visual tapes reveal a five year old with a startling command of language, obvious intelligence and powers of observation.

3. When she was observed by the Single Expert in December 2013 a positive, affectionate relationship was noted. The child expressing some worries and anxieties about her father’s business and keen to see him again, also keen to involve him in play and craft activities during the session. There was a close attachment. Likewise, she engaged in pleasurable and amusing activities with her mother during an observation session.

4. The child will be nine at the end of the year and it is impossible to know how she is feeling about the tumultuous experiences she has had over the last three years or what impact that has had on her views about each of her parents and her hopes for the future.

Relationships

1. The child has her most important relationships with her mother and her maternal grandmother in whose home she lives. She has enjoyed regular contact in the past with her father, the paternal family, including a same aged cousin.

2. The child knows her maternal grandfather but he suffers from poor mental health and there is nothing to suggest it is a most significant relationship for the child.

Decision Making

1. The mother has made the majority of decisions in relation to the child. The father, after some initial hesitation, became involved in the life of the child and involved her in a range of physical and sporting activities which she greatly enjoyed.

2. During the period of supervised time in October/November 2013 the father did not take up the possibility of the third weekly visit at his own expense. There is no evidence in explanation of that choice. There has always been regular communication by telephone between the father and the child, even throughout the period of supervised visits. It is likely the child misses those conversations.

Likely Effect of Changes

1. The child has already experienced the loss of her relationship with her father. To restore the relationship with the assistance of a skilled therapist could have a positive or negative impact. I have concluded that her safety as a priority has excluded that possibility.

Capacity of the Parents

1. Each of the parents is an intelligent, well educated person. The mother organised and structured, the father spontaneous and playful. Each is capable of meeting the emotional, intellectual and financial needs of the child.

Background of the Child

1. The child is highly intelligent and her education is being supported and fostered by her mother as it was by her father.

2. She is, in addition to her Australian heritage by birth, connected to Central Europe through her mother’s family and the Mediterranean through her father’s family.

Parental Responsibility

1. In circumstances where I have concluded that there should be no order for the child to spend time with the father, it is obvious that equal shared parental responsibility, which arises as a presumption when orders are to be made is not a possibility here. It is rebutted by the circumstances of a finding that there is an unacceptable risk of harm to the child.

2. An order for sole parental responsibility and residence to the mother will be made.

Conclusion

Future Risk

1. One finding I can make with certainty is the subject child has been through a prolonged ordeal over three years with no positive outcome from her perspective. Between 13 August 2013 and 4 March 2015 she was repeatedly questioned in searching and challenging ways.

2. There were three JIRT interviews in 2013; two in August and one in November of that year. There were interviews and observations conducted by the Single Expert Dr B in December 2013.

3. The child was present at the District Court for two days on 3 and 4 March 2015. She was obliged to watch the video recordings of her own three JIRT interviews and was then cross-examined both by the Crown and counsel for her father on the contents of those interviews and inconsistent statements said to have been made by her. She placed her trust in what she was told in the third JIRT interview that nobody else would be shown it or hear about it. She had made it very clear that she did not want the interview recorded,[47]

   [47] Exhibit 13, page 2

   JIRT officer:   Is it ok if we record our talk today?

   Child:             No, thank you.

   JIRT officer:   … So why don’t you want it recorded?

   Child:             I don’t know.

   JIRT officer:   You don’t know. Do you think we could give it a try …

   Child:             Maybe … not (my emphasis).

   And then this statement:

   JIRT officer:   Ok. So remember the recording is just for us to keep, so nobody else will look at it, will just be us.

   Child:             Ok (obvious relief).

   Subsequently of course, the recording was used for criminal proceedings and for proceedings in this Court. The child is undoubtedly aware that many, many people know about, what for her, were embarrassing and intimate matters about her genitals and her life.

4. The child was questioned about this in the trial,[48]

   [48] Exhibit 21 – 4/03/2015, pages 68 and 69

   Question:      Why didn’t you want to record it?

   Child:Because I didn’t want other people to see it.

   Question:And in fact at question 20, one of the [xxx] doctors said “So remember the recording it’s just for us to keep so nobody else will look at it, it will be just us.” That’s right isn’t it?

   Child:Yes.

   Question:So did you think when the [xxx] doctor said that you could then say anything you liked about your Dad and no one would see it?

   Child:No I just believed that – I believed them that no one else would see it.

   Question:So you thought they were telling you the truth?

   Child:Now I don’t care if other people see it.

5. The child was three times taken through the significance of truth and lies for interviews. It must be the case that she considers that she herself was lied to by JIRT on the third occasion. The relevance of this issue for me is the impact on her future willingness to tell anyone in authority information concerning her welfare.

6. On the balance of probabilities I consider that she is more likely to keep personal information to herself in future. This makes her potentially vulnerable to tolerating misconduct and keeping her silence.

Conclusion

1. This was an exceedingly difficult decision.

2. There is no doubt that both parents love their child. Both function in society at a high level and are capable of meeting the physical, educational and financial needs of the child.

3. One question is whether there is an impairment of the capacity of the father to keep the child safe and to meet the emotional need of the child to have complete trust in her father to do that.

4. I have concluded that on the balance of probabilities there is.

5. Another question is whether there is an unacceptable risk of the father breaching adult/child boundaries and dealing with the child in a sexualised way if unsupervised time between them was restored.

6. I have concluded that on the balance of probabilities there is such a risk.

7. The consequence for the child is the perpetuation of the loss of the relationship with her father.

8. Further, if I am wrong in my conclusions the child will likely believe, as the mother does, that she was molested by her father whether or not she was. She will probably regard him as morally bad and risky, if not dangerous.

9. The father has been a source of fun and adventures for the child. He is less serious than the mother and more easy-going. The child has a whimsical sense of humour. She appreciated the playful side of the father.

1. Ultimately however her safety has priority. I have given weight to the fact that the experiences of the child through interviews and cross-examination have had their own negative impact. The risk is there that she would be unwilling to disclose abuse in future for fear of how her information would be used.

2. In my view she is a vulnerable child who needs protection.

3. It is an uncontested fact that the child is safe living with her mother although their personalities are less compatible than the child with her father.

4. I contemplated orders for supervised time with the father but without prospect of progression to unsupervised time the experience would be of little benefit to the child. Further the mother would likely be anxious about the conduct of the father as she not unreasonably was in 2013.

5. The stability of the relationship between the mother and child has priority.

6. I also contemplated and ruled out orders for the child to spend time with the paternal family. The paternal aunt was offended by the allegations on behalf of her brother and the extended family generally. The mother was not confident that the family would accept there was a risk to her safety. The paternal aunt confirmed that as her view.

7. The most appropriate course is to make no order for the child to spend time with her father. If the mother decides when the child is older there could safely and beneficially be a restoration of the relationship between father and daughter she is free to initiate that conversation with the father. She may not come to that decision at all.

8. Of course, the father may wish to stay away until the child, as a young adult, seeks him out. If the mother does approach he might reject the proposal.

9. Those decisions are left with the parents.

10. Orders are made accordingly.

I certify that the preceding three hundred and thirty five (335) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 November 2016.

Associate: 

Date:  10 November 2016