Barbar and Iveson

[2012] FamCA 281

FAMILY COURT OF AUSTRALIA

BARBAR & IVESON [2012] FamCA 281

FAMILY LAW - CHILDREN – INJUNCTION - time a child is to spend with another person – where mother seeks injunction for the paternal grandmother’s time with child to be supervised – allegations of sexual abuse of the child by paternal grandmother – prior parenting orders made in Federal Magistrates Court allocating equal shared parental responsibility to the parents – where prior parenting orders allowed for child to live with father in paternal grandparent’s residence and spend time with the mother - where child suffers from skin conditions requiring ointments and creams to be applied all over the child’s body including child’s genitalia – where allegations of sexual abuse and impropriety were made by the mother against the paternal grandmother for touching the child’s genitalia to soothe the child to sleep rather than for medicinal purposes - where at the time of the allegations the child was too young to administer treatment for skin condition on her own – where mother and paternal grandmother have administered treatment on the child involving touching the child’s genitalia for medicinal purposes –– allegations of sexual abuse unsubstantiated – where paternal grandmother’s conduct was not sexually motivated – child is now old enough to administer treatment for skin condition – finding paternal grandmother does not pose an unacceptable risk of abuse – orders made dismissing the mother’s application for the imposition of supervision of time spent by the child with the paternal grandmother

M v M (1988) 166 CLR 69

APPLICANT: Ms Barbar

RESPONDENT: Mr Iveson

INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

FILE NUMBER: NCC 2865 of 2007

DATE DELIVERED: 3 May 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 2, 3 & 4 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Bateman

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT: Mr D Murray

SOLICITOR FOR THE RESPONDENT: Slater & Gordon

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms V Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

Orders

1. The Amended Initiating Application filed on 13 February 2012 is dismissed.

2. The Application in a Case filed on 25 January 2012 is dismissed.

3. The Response filed on 7 November 2011 is dismissed.

4. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

5. Each party is restrained from discussing with the child any aspect of these proceedings and from showing to the child any document related to the proceedings.

6. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Family Consultant.

7. In the event of either party notifying the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

   (a)       A copy of these orders;

   (b)A copy of the reasons for judgment delivered in respect of these orders; and

   (c)A copy of the affidavit of the Family Consultant affirmed on 13 December 2011.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

9. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

10. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2865 of 2007

Ms Barbar

Applicant

And

Mr Iveson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. There is but one issue in this case – whether the child of the parties is at risk of sexual abuse by the paternal grandmother, warranting the imposition of an injunction precluding the child’s interaction with the paternal grandmother other than under supervised conditions.

2. The parties agreed that parenting orders formerly made following a trial in April 2010 should continue to prevail. Those orders provide for the parties to have equal shared parental responsibility for the child and for the child to live with the father and spend frequent time with the mother.

3. The current proceedings were commenced in September 2011 following the mother’s allegation in February 2011 that the paternal grandmother had been deliberately fondling the child’s vulva to sooth the child to sleep. It was further alleged that such conduct had occurred over a protracted period of years.

4. The father and the paternal grandmother were dismissive of the mother’s allegations. The paternal grandmother admitted touching the child’s body in the vicinity of her genitals, but only for the therapeutic purpose of applying ointment to manage the child’s severe condition of eczema.

Background

1. The subject child of the parties is J. She was born in May 2005 and is now nearly aged seven years.

2. Following the parties separation proceedings were instituted before the Federal Magistrates Court. The proceedings were contested and, following the trial, the Court made orders in April 2010 providing for the parties to have equal shared parental responsibility for the child (Order 1), the child to live with the father (Order 2), and the child to spend time frequently with the mother (Order 3).

3. It is not evident from the reasons for judgment delivered by the Court that the risk of sexual abuse of the child was agitated by the mother as an issue during the trial. In fact, in the course of considering the child’s best interests pursuant to the provisions of s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), the Court expressly found that:[1]

   At present there is no risk of [the child] being exposed to abuse, neglect or family violence in the separate care of either of her parents.

   [1] Iveson & Barbar [2010] FMCAfam 433 at [32]

4. The Court also expressly noted in its judgment the mother’s statement from the bar table thanking the paternal grandparents for the care they had given the child when she had experienced impaired ability to do so herself.[2]

   [2] Iveson & Barbar [2010] FMCAfam 433 at [40]

5. The orders made in April 2010 were implemented without remarkable incident for the next 10 months.

6. During a telephone call between the mother and the child in February 2011 the mother formed the opinion that the paternal grandmother was sexually abusing the child. She immediately telephoned the NSW Department of Family and Community Services (“the Department”) to report her concerns.[3]

   [3] Mother’s affidavit, pars 46-50

7. The Department acted swiftly on the complaint. Shortly afterwards the child was interviewed and the father was summoned to the offices of the NSW Joint Investigation Response Team (“JIRT”).[4] The father and paternal grandmother cooperated with the JIRT investigation, including by their submission to interviews and compliance with directions they were given.[5]

   [4] Father’s affidavit, pars 10-19

   [5] Father’s affidavit, par 23

8. The mother was appraised of the progress made in the investigation. She provided a statement to JIRT and proceedings were taken by JIRT against the paternal grandmother for an apprehended violence order to protect the child against the paternal grandmother.[6] The apprehended violence proceedings were later dismissed by the Local Court of NSW.[7]

   [6] Mother’s affidavit, pars 56-61; Father’s affidavit, pars 20, 23.1, 23.10, 23.11, 49, 51.9, 51.10

   [7] Mother’s affidavit, pars 66-71

9. When the provisional apprehended violence order was made against the paternal grandmother the father and the child vacated the paternal grandparents’ home,[8] but following dismissal of the apprehended violence complaint the father and child moved back to reside with the paternal grandparents,[9] with whom they have lived for years.

   [8] Father’s affidavit, pars 21-22, 23.12

   [9] Mother’s affidavit, pars 71, 81

10. The mother commenced these proceedings on 8 September 2011 by filing her Initiating Application, in which she sought both final and interim orders.

11. The mother’s application for interim orders was considered by the Court on 21 November 2011. On that occasion the parties agreed upon interim orders, which included:

    a)Restraint of the parties from causing or permitting the child to spend time with the paternal grandmother unless supervised by the father or his adult nominee (Order 1); and

    b)Restraint of the parties from allowing the child to be exposed to conversations about these proceedings, the JIRT investigation, or the apprehended violence proceedings then pending before the Local Court of NSW (Order 2).

12. Those orders, which were grafted on to the existing final orders made in April 2010, applied until the trial commenced.

13. The paternal grandmother has consistently denied any impropriety with the child.[10] She has never been prosecuted with any offence. The JIRT investigation was concluded without any further action being taken.

    [10] Exhibit F4; Paternal grandmother’s affidavit, par 14

Proposal and primary evidence of the mother

1. The mother abandoned reliance upon her Amended Initiating Application filed on 13 February 2012 and instead tendered a minute of the orders she proposed.[11]

   [11] Exhibit M1

2. Her proposal entailed:

   a)The imposition of an injunction upon both parties restraining them from causing or permitting the child to spend any time with the paternal grandmother unless supervised by the father or his adult nominee, which injunction shall apply until the child attains 10 years of age (Orders 1-2);

   b)Use by the parties of a communication book (Order 3); and

   c)Completion by both parties of a post-separation parenting program approved by the Director of Child Dispute Services (Order 4).

3. In support of her proposal the mother relied upon her affidavit filed on 9 March 2012.

Proposal and primary evidence of the father

1. The father simply sought dismissal of the mother’s application and retention of the orders made by the Federal Magistrates Court on 1 April 2010.

2. The father also pressed an Application in a Case filed by him on 25 January 2012, but it was superfluous. That interlocutory application was listed for hearing simultaneously with the substantive proceedings[12] because it addressed exactly the same issue at stake in the substantive proceedings, namely, the retention or discharge of the interim requirement for the child to be supervised in the company of the paternal grandmother.[13]

   [12] Orders 1-2 made on 27 January 2012

   [13] Order 1 made on 21 November 2011

3. The father relied upon the evidence contained within his affidavits filed on 7 November 2011 and 13 March 2012, together with the affidavit of the paternal grandmother filed on 25 January 2012.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer did not announce her position until the commencement of final submissions, at which time she tendered a minute of the orders she proposed.[14]

   [14] Exhibit ICL4

2. The Independent Children’s Lawyer supported the father’s rebuttal of the mother’s Application, contending that there should be no injunction restraining the child’s interaction with the paternal grandmother (Order 1).

3. In addition, the Independent Children’s Lawyer proposed additional orders regulating the parties’ interaction with one another and the child (Orders 2-4).

Additional evidence

1. Besides the evidence relied upon independently by the parties, they and the Independent Children’s Lawyer invited the Court to take into account the following additional evidence:

   a)The Magellan Report provided to the Court by the Department on 18 October 2011;

   b)The affidavit of the Family Consultant affirmed on 13 December 2011, about which she was cross-examined; and

   c)Numerous exhibits which were tendered throughout the trial.

The allegation of abuse

1. The mother adduced evidence of her concerns about the paternal grandmother’s improper sexual treatment of the child extending back to 2007.[15] Negligible weight can be attributed to that evidence in light of the findings of fact made by the Federal Magistrates Court at trial in April 2010, to which reference has already been made.

   [15] Mother’s affidavit, pars 16-43

2. The mother deposed that she contacted the Department for the first time when the child attained four years of age,[16] which occurred in May 2009, but there is little evidence as to the nature of the complaint then made.

   [16] Mother’s affidavit, par 38

3. Between 2007 and 2011, the Magellan Report refers to receipt by the Department of complaints related to the child in only September and October 2009. Those complaints were about the failure to provide proper medical treatment to the child and were not the subject of active investigation.

4. Despite omission of any mention in the Magellan Report, the Family Consultant reported that two complaints were made to the Department in late April 2010 relating to the alleged touching of the child’s “vagina” by both the father and paternal grandmother, but the reports did not meet the Department’s criteria of “significant risk of harm” and were therefore not investigated.[17] I impute those two complaints were the complaints made by the mother, to which she referred in her affidavit, when the child was aged four years. At that point in time the child was aged four years, although she was due to turn five years of age only days later.

   [17] Family Report, par 61; Exhibit F3 (page 3 of 3)

5. If evidence of the mother’s concerns extending back to 2007 was adduced at trial in April 2010 before the Federal Magistrates Court then it failed to excite the interest of that Court, the findings of which contradicted the mother’s asserted concerns. If such evidence was not adduced at the earlier trial then its mention in these proceedings smacks of desperation.

6. The mother conceded in cross-examination that historical events had taken on a different perspective for her following developments after the trial in April 2010. She said words to the effect:

   “In hindsight I think this was happening in 2007.”

   and

   “[The paternal grandmother] has been touching [the child] in an inappropriate way for four years.”

7. Suffice to say, such an attitude by the mother necessarily involves reconstruction of past events. Her retrospective musings are liable to be distorted through a prism of suspicion.

8. The mother’s allegations against the paternal grandmother really spring from a telephone call that occurred on 23 February 2011.

9. That evening the mother was speaking with the child on the telephone but overheard the paternal grandmother converse with the child. There is some discrepancy between the mother’s various versions of the event, but probably only consistently with some understandable erosion of her memory and not such as to invite speculation of fabrication.

10. In her affidavit filed in March 2012 the mother said she overheard the paternal grandmother say to the child in the background:[18]

    “[Child’s name] hang up the phone, it’s time for bed.”

    and then:

    “Roll over, where do you want me to rub it?”

    [18] Mother’s affidavit, pars 47-49

11. The mother alleged in an earlier statement she made for police on 18 April 2011 that she heard the child giggling and say “stop it” to the paternal grandmother.[19]

    [19] Mother’s affidavit, Annexure D, page 6 of 7

12. Although not mentioned in either her affidavit or police statement, the mother said in cross-examination that the salient conversation she overheard was actually as follows:

    Child: (giggling) “No. I don’t want you to.”

    PGM: “Where do you want me to rub it?”

13. The paternal grandmother did not purport to have a particularly clear recollection of the conversation that occurred between her and the child at the time of that telephone call so, for present purposes, the correctness of the mother’s evidence can be assumed.

14. The mother’s concern was aroused because she assumed the paternal grandmother was about to rub the child’s vulva. She made that assumption because the child had asked the mother to rub her vulva at bedtime on numerous past occasions, told the mother the paternal grandmother had done that for her in the past, and had been observed by the mother from time to time to pat or rub herself on that part of her anatomy.[20]

    [20] Mother’s affidavit, pars 24-26, 30-35

15. The mother immediately telephoned and reported her concern to the Department. The Magellan Report confirms receipt by the Department of a sexual abuse complaint concerning the child on 23 February 2011, which the mother identified as her complaint.[21]

    [21] Family Report, par 45

16. Despite the mother’s impulsive assumption of impropriety by the paternal grandmother, several indisputable facts support, if not demand, exculpatory inferences.

17. First, no mention was made by either the child or the paternal grandmother about the place on the child’s body where the child expected, or the paternal grandmother intended, the rubbing would occur. The paternal grandmother actually asked the child where she desired to be rubbed, from which it is obvious the paternal grandmother had no pre-conceived notion that she was to fondle the child’s vulva. The “it” to which the paternal grandmother referred when inquiring what was to be rubbed was plausibly the eczema from which the child suffered and which afflicted all parts of her body.

18. Secondly, the paternal grandmother was aware the child was speaking with the mother on the telephone. In such circumstances it is almost inconceivable the paternal grandmother would then deliberately set about sexually assaulting the child whilst the telephone link to the mother remained open. In addition, the paternal grandmother gave unchallenged and uncontradicted evidence in cross-examination that when she went into the child’s room that evening she was accompanied by the paternal grandfather who took the mobile telephone from the child. It beggars belief the maternal grandmother would have sexually abused the child complicitly with, or at least in the presence of, the paternal grandfather.

19. Thirdly, the mother said in both her affidavit[22] and during cross-examination that the child was giggling at the time of her conversation with the paternal grandmother. She was therefore plainly not distressed by what was occurring between her and the paternal grandmother, even though apparently imploring the paternal grandmother to desist. If the paternal grandmother was acting improperly with her, the child was certainly ignorant of the impropriety.

    [22] Mother’s affidavit, par 49

20. Quite apart from the innocent inferences which naturally arise from the facts asserted by the mother, various other components of the evidence do not support any finding that the child was sexually abused by the paternal grandmother.

21. Before embarking upon analysis of the evidence it is useful to begin by observing the confusion and lack of clarity that has arisen in this case concerning the description of the child’s anatomical parts.

22. The adults have indiscriminately referred to the child’s “vagina” and “vulva” when in fact there is a marked difference. The vagina is an internal organ and the vulva is the external genitalia.

23. The allegation of sexual abuse which is the subject of these proceedings has never comprised any allegation of penetration of the child’s “vagina” by any person at any time.

1. The mother’s allegation against the paternal grandmother arises from what she has heard the child say and her knowledge of the child’s report to JIRT. The relevant representation attributed to the child is that she was touched, patted or rubbed on her “floss”.

2. The parts of the child’s anatomy susceptible to description by the child as her “floss” remain elusively imprecise.

3. The child participated in an interview with JIRT officers on 24 February 2011. During her interview she was shown a diagram of a female child and the interviewer pointed to the genitalia and asked what the child called that particular part of her body, to which the child responded “floss”. She was then directly asked what that part of her body was used for and the child responded “weeing”.[23] The diagram, which was tendered along with the transcript of the interview, was clearly marked and labelled by the interviewer rather than by the child so as to depict the location of the “floss” on the female child.

   [23] Exhibit ICL3, Q.113-115

4. Importantly, that marking represents only the interviewer’s perception of the child’s “floss”. The prospect of the child using the word “floss” to refer to a wider part of her anatomy than simply her urethra, vagina or vulva was not expressly discounted. Notwithstanding, the JIRT officers thereafter conducted their investigation upon the assumption that the child’s “floss” was confined to her “vagina”. The assumption could hardly be clearer because the JIRT officers asserted it as fact to the paternal grandmother at the very commencement of and thereafter throughout her formal interview.[24]

   [24] Exhibit F4, Q.5, 116, 117, 120, 124, 216, 220-222, 227-228, 237-242, 458-461, 480-482

5. The assumption of the JIRT officers was not necessarily correct and, on the evidence adduced in these proceedings, most probably erroneous. Independently of one another, the father and paternal grandmother both explained in evidence that the child used the word “floss” to describe that part of her anatomy incorporating her genitalia, pubis and lower abdomen – in effect, the front part of her body that would be covered by underpants.

6. The prospect of their collusion over that issue in order to exculpate the paternal grandmother is remote because the paternal grandmother contemporaneously, but seemingly unsuccessfully, tried to explain to the JIRT officers during her formal interview that the child used the word “floss” to refer to a broader area of her body than simply her vagina.[25]

   [25] Exhibit F4, Q.116, 125-136, 150, 159, 163-170, 216-219, 372-374, 458-461, 486

7. The child was interviewed by JIRT officers in February 2011. She told the JIRT officers there was nothing she did not like about the paternal grandmother.[26] She explained she suffered from eczema and that the paternal grandmother touched many parts of her body because of her condition.[27] In that context the child was asked whether anyone touched her “floss” and she explained the paternal grandmother did so on some nights, particularly during summer, when she could not sleep.[28] The child also explained how the paternal grandmother blew on her.[29]

   [26] Exhibit ICL3, Q.53

   [27] Exhibit ICL3, Q.101-109, 158, 247-248

   [28] Exhibit ICL3, Q.117-119, 128, 245

   [29] Exhibit ICL3, Q.145-146, 166-170, 174-175

8. The child also later told the Family Consultant that she asks the paternal grandmother to apply cream to her body and the paternal grandmother applies it “where I tell her to” and “where it itches”. She confirmed cream had been applied to her “flossy”.[30]

   [30] Family Report, pars 38-39

9. The JIRT interview occurred when the child was still only aged five years. Her answers during that interview disclose her to be an intelligent little girl, but as the Family Consultant said, caution must be exercised not to interpret the comments of a child that young too literally. There are some examples within the interview of the child’s inconsistency, emphasising the Family Consultant’s admonition of the need for caution.

10. The child said she was rubbed on the floss by the paternal grandmother every night,[31] but then said it only happened some nights.[32]

    [31] Exhibit ICL3, Q.131-132, 150, 244

    [32] Exhibit ICL3, Q.245

11. It remains unclear, but the child seemed to say she was rubbed on the floss over the top of her clothing,[33] but that the paternal grandmother blew on her naked floss.[34] Notwithstanding the confusion of the questions and answers, JIRT officers still imputed that the child alleged being touched on the naked floss,[35] and the paternal grandmother admits only touching the child in her genital region to apply creams and lotions directly onto her skin.

    [33] Exhibit ICL3, Q.137-142, 176-177

    [34] Exhibit ICL3, Q.166-175

    [35] Magellan Report, pages 2-3

12. The child reported the paternal grandmother said nothing to her when touching her floss,[36] but then later said the paternal grandmother did talk to her as it occurred.[37]

    [36] Exhibit ICL3, Q.149, 181, 185

    [37] Exhibit ICL3, Q.238-240

13. The child reported she had complained to the mother about being rubbed on the floss by the paternal grandmother because “your (sic) not allowed to rub kids on the floss”,[38] suggesting she perceived it as improper, but she was contradicted by the mother’s evidence. The mother deposed to the child requesting her to rub her floss, telling the mother it was “okay” to do so, and it was “okay” for the paternal grandmother to do so.[39]

    [38] Exhibit ICL3, Q.200-202

    [39] Mother’s affidavit, pars 30-33

14. The child initially said that upon the mother being informed of the paternal grandmother rubbing her floss the mother replied “tell grandma don’t rub you on the floss”,[40] but later in the interview the child inconsistently reported she did not remember what the mother had said to her about it.[41]

    [40] Exhibit ICL3, Q.190

    [41] Exhibit ICL3, Q.258-261

15. The child also reported she had told the father what had been happening,[42] but her evidence was contradicted by the father. The child’s report was put to the father in cross-examination and he credibly denied the child had ever approached him with such a report.

    [42] Exhibit ICL3, Q.188-194

16. Several other aspects of the child’s interview are noteworthy. Firstly, the paternal grandmother did not ever conspiratorially ask the child not to mention to anyone else her rubbing the child on the floss,[43] as one might expect if the subject conduct was considered furtive or secretive. Secondly, the paternal grandmother only rubbed the child’s floss when asked,[44] so it did not occur at the unilateral volition of the paternal grandmother. Thirdly, the paternal grandmother sometimes covered her eyes with her spare hand when rubbing the child’s floss,[45] inferentially to feign discretion in touching but not looking at a private part of the child’s body. There would have been no need for such discretion if the touching was occurring on top of the child’s clothing, suggesting the child’s genitals were exposed for application of cream when the touching occurred.

    [43] Exhibit ICL3, Q.250-252

    [44] Exhibit ICL3, Q.118, 128, 208

    [45] Exhibit ICL3, Q.226-228

17. The parties and the Independent Children’s Lawyer mutually submitted that it would be unremarkable and innocuous for the paternal grandmother to touch the child on the groin and vulva for the legitimate purpose of applying cream and lotion to relieve her skin irritation, whether caused by eczema or some other affliction. Although it hardly needed confirmation, the Family Consultant confirmed that such physical interaction between a child and a parental figure was completely natural.

18. Similarly, it was common ground that it would be quite inappropriate for a parental figure such as the paternal grandmother to touch the child’s groin or vulva in the absence of such a legitimate purpose. Obviously, rubbing the child’s vulva for no purpose other than to sooth her would be abusive, irrespective of whether the child realised it.

19. Necessarily, the reliability of the child’s representations is pivotal to evaluation of the mother’s allegations. The most probable implication arising from the child’s representations made during her interviews with JIRT and the Family Consultant was that the paternal grandmother had touched parts of her body, including her genital area, to apply creams and lotions to relieve the itch and irritation of her eczema.

20. The child did not clearly and expressly assert that the occasions upon which the paternal grandmother touched her “floss” were unrelated to her therapeutic treatment with creams and lotions. The questions asked and the answers given on that issue during the JIRT interview were unsatisfactorily indistinct.

21. The summary of the child’s interview contained within the Magellan Report was not a comprehensive or balanced one. Nevertheless, the imputation seemingly gleaned by the JIRT officers from the interview was that the paternal grandmother touched and blew on the child’s naked floss when she was in bed in the evenings. It also appears to be the basis for the Department’s conclusion that the allegations of sexual abuse of the child by the paternal grandmother were substantiated.

22. Apparently galvanised by the conclusion reached by the Department, the mother expressly urged upon the Court a finding of fact that the child was sexually abused by the paternal grandmother.

23. In cross-examination the mother said she believed the paternal grandmother’s conduct began as legitimate treatment for the child’s eczema but then transformed into an improper method of soothing the child to sleep. The mother had similarly explained her speculative theory to the Family Consultant, saying she believed the child had soothed herself by touching her genitals and the paternal grandmother later soothed the child in the same way at the child’s request.[46] Her counsel submitted that a factual finding should be made by the Court in the following terms:

    The paternal grandmother soothed the child by caressing the child’s genitals, without cream or lotion and without therapeutic intent.

    [46] Family Report, par 51

24. The paternal grandmother consistently and credibly denied any such impropriety. She did so when interviewed by JIRT officers, when she spoke with the Family Consultant, when she later compiled her affidavit in these proceedings, and finally, when she was cross-examined at trial.

25. During her interview with JIRT officers the paternal grandmother explained the child’s acute eczema condition, which irritates her skin over all parts of her body, including her groin, bottom, behind her ears, the soles of her feet, as well as more common areas such as her trunk, elbows, knees and wrists.[47] Creams and lotions have often been applied to the child’s skin for relief of that condition.

    [47] Exhibit F4, Q.58, 67-68

26. The paternal grandmother also explained how the child’s groin has been affected by other skin conditions besides eczema, which have required topical application of ointments.[48]

    [48] Exhibit F4, Q.95-99

27. At and prior to the JIRT investigation in early 2011 the child was not old enough to competently apply creams and lotions to her own body, although the paternal family were trying to teach her. Consequently, adults in the family usually did that for her.[49]

    [49] Exhibit F4, Q.103-105, 109-112

28. The paternal grandmother conceded applying cream and lotions to the child in the vicinity of her groin and genitalia, but only for the therapeutic relief of her eczema and other skin conditions.[50]

    [50] Exhibit F4, Q.117, 207-208, 257, 315-316, 467-472

29. Without the paternal grandmother even knowing of the child’s report to JIRT of her blowing on the child’s floss, the paternal grandmother volunteered that part of her therapeutic treatment for the child involved blowing softly on her skin to relieve the itch and the sting which the child felt when ointment was applied to her chaffed and broken skin.[51] She expressly denied blowing directly onto the child’s genitals, asserting she never did so closer than the lower abdomen.[52] Other adult members of the paternal family also blew on the child’s skin.[53]

    [51] Exhibit F4, Q.117, 250-252

    [52] Exhibit F4, Q.242-246, 257-263, 480-482

    [53] Exhibit F4, Q.365

30. When the paternal grandmother was cross-examined she proved to be a credible witness. I accept the Independent Children’s Lawyer’s description of her as “forthright and convincing”. Her evidence did not deviate and she believably denied the turpitude alleged against her.

31. It was directly put to the paternal grandmother in cross-examination that she had rubbed the child’s vulva for purposes unrelated to treatment for her eczema. She deliberately engaged counsel’s gaze and said simply, without embellishment or undue emotion but more with a sense of resolute weariness, “you wouldn’t sit and rub a little girl up and down”. The answer and her demeanour were compelling. So distressed by the allegation is the paternal grandmother that she honestly conceded in evidence she doesn’t think she could ever forgive the mother for making the allegation.

32. In large measure, the paternal grandmother was corroborated by the records of the child’s medical history and the mother’s admissions.

33. The mother conceded the child’s eczema condition was “acute” requiring application of even steroid ointment multiple times each day. The mother deposed the child’s “vagina” often appeared red and irritated.[54]

    [54] Mother’s affidavit, pars 21, 27, 37, 44, 87

34. The mother admitted she often applied cream to the child’s “vagina”, “bottom” and “groin” in an attempt to sooth the irritation.[55] The mother also conceded she did so in accordance with medical advice she sought.[56] Despite making such admissions in both her statement to police and in her affidavit, the mother inexplicably denied doing so during her cross-examination. I do not accept her denial. The concessions she has repeatedly made in the past are more likely reliable.

    [55] Mother’s affidavit, pars 28, 36, 45, Annexure D

    [56] Mother’s affidavit, Annexure D, pages 4-5 of 7

35. In the face of such concessions it is particularly curious that the mother would express surprise that the child reported to her that the paternal grandmother had also rubbed her floss.[57] If the mother had applied cream to the child’s “vagina” and “groin” the child must necessarily have perceived that the mother had also rubbed her floss. There was no difference between the child’s treatment by the paternal grandmother and her treatment by the mother.

    [57] Mother’s affidavit, pars 32-33

36. The paternal grandmother told the Family Consultant she believed she would have been criticised by the mother for neglecting the child had she not applied cream to the child’s eczema.[58] Her apprehension was reasonably held because the mother complained to Dr C, her general medical practitioner, in September 2009 that she considered the care of the child’s eczema provided by the father and paternal grandmother to be deficient and neglectful.[59] The mother made the same complaint about the father and paternal grandparents to the Department in February 2011.[60] The mother repeated that complaint in cross-examination.

    [58] Family Report, par 32

    [59] Father’s affidavit, Annexure E

    [60] Family Report, par 60

37. The father declined to apply cream to the vicinity of the child’s genitals because he was fearful the mother would make allegations against him of inappropriately touching the child.[61] His concern was reasonable because the mother has made a past complaint to police alleging his sexual abuse of the child. That occurred in September 2007 after the parties had separated.[62] In cross-examination the mother professed the police had incorrectly recorded her allegation in 2007 because she had actually complained about the father having sexual intercourse with a female in the same room as the child, but I do not accept the mother’s evidence on that issue. The contemporaneous police record is more likely accurate. In any event, the allegation against the father at that time was not pursued by police and no prosecution resulted.

    [61] Father’s affidavit, par 29

    [62] Exhibit F2

38. The mother consulted Dr C concerning the child’s skin condition in 2009 and obtained a referral to a specialist in dermatology, Dr R.[63]

    [63] Mother’s affidavit, pars 22, 41-44

39. In March 2010, Dr R’s associate confirmed that the child should have moisturising cream applied to any “itchy eczematous areas” of her body several times each day.[64]

    [64] Father’s affidavit, Annexure E

40. Dr C noted in May and June 2010 that the child’s eczema extended into her “upper thigh/genital region”.[65]

    [65] Father’s affidavit, Annexure E

41. Upon review by Dr R in June 2010 the child was noted to have eczema on her “groin vulval area” and to have been having “intermittent groin/vulval rash particularly over the last few months” and perhaps for even longer. It was further noted that the paternal grandmother had been “applying a barrier cream with minimal benefit”.[66] It was the mother who accompanied the child to that medical review. It must therefore have been the mother who reported to the doctor that the paternal grandmother had been applying barrier cream to the child’s “groin vulval area”. Inferentially and significantly, the mother was quite obviously unconcerned by the paternal grandmother’s treatment regime for the child at that point in time.

    [66] Father’s affidavit, Annexure E; Mother’s affidavit, par 44; Family Report, par 65;

42. Dr R’s associate reported to Dr C on 1 June 2010 that the family had been encouraged to continue with the same treatment regime, including “use [of] a moisturiser 2-3 times daily in the groin and they should use Advantan in this area should there be flares”.[67]

    [67] Father’s affidavit, Annexure E

43. In October 2010 Dr C recorded that the child had a viral rash called Molluscum Contagiosum which was located on her “lower abdomen, genitals and bottom”. Her vulva was inflamed. He prescribed application of Antroquirol ointment to the affected area after the vulva was well dried using a hairdryer.[68]

    [68] Father’s affidavit, Annexure E; Exhibit ICL1

44. As recently as November 2011 the father’s general medical practitioner, Dr S, reported that the child’s eczema was treated by application of cream to the affected area, including “in the groin”.[69]

    [69] Father’s affidavit, Annexure E

45. Several facts are therefore incontrovertible. The parties were cognisant of the child’s groin and vulva being afflicted by skin irritation over a long period of time, they were issued with medical advice to treat such condition by the topical application of certain creams and ointments to those affected parts of her body, and they were aware that they were each complying with that medical advice.

46. The mother has given inconsistent accounts about the period of time over which the child persistently asked to have her floss rubbed.[70] Although the mother inferred in her affidavit that it was almost a nightly occurrence over a period of years up to and including 2011,[71] the report she made to the Department on 23 February 2011 inconsistently disclosed that the child had not asked the mother to be rubbed on the “vagina” since the previous year.[72] I accept the Independent Children’s Lawyer’s submission that the mother’s evidence of the child’s unsated, hysterical and persistent demands to have her floss rubbed are more a reflection upon the mother’s parenting capacity than a reliable insight into the affect upon the child of the paternal grandmother’s conduct.

    [70] Family Report, pars 46-47

    [71] Mother’s affidavit, pars 26-35, 40, 53-55

    [72] Exhibit F3 (page 2 of 3)

47. Even though the mother asserted her belief the paternal grandmother had deliberately manipulated the child’s genitals simply to sooth the child without medical therapeutic purpose, she admitted her acceptance that the paternal grandmother had not done so for her own sexual gratification. She said so to the Family Consultant[73] and also in cross-examination.

    [73] Family Report, pars 51, 66

48. The mother also agreed with the Family Consultant that the child does not perceive her treatment at the hands of the paternal grandmother to have been abusive.[74] There are certainly no indications of the child’s emotional disturbance. Her academic performance at school is satisfactory and she thrives socially.[75] Nothing about the child’s presentation suggested to the Family Consultant that she had been sexually abused.

    [74] Family Report, par 73

    [75] Family Report, pars 35, 63

1. As the High Court observed in M v M (1988) 166 CLR 69 at 71, 78, an unexcluded possibility of past abuse is capable of supporting, but does not demand, a finding that the child is at unacceptable risk of future abuse.

2. Having considered all of the available evidence I am not satisfied that the paternal grandmother poses any risk of sexual abuse to the child. There is no persuasive evidential basis to support the mother’s speculation to the contrary.

3. Even if I was in error in concluding that the paternal grandmother does not pose any risk of harm to the child, I accept the alternate submission of the Independent Children’s Lawyer that any risk posed to the child by the paternal grandmother could not be quantified as unacceptably high, so as to justify the imposition of the injunction proposed by the mother.

4. There are several reasons for that conclusion. They include, in no particular order of priority, the paternal grandmother’s chastening experience of the JIRT investigation and these proceedings, the paternal grandmother’s consultation with a psychologist about her experience, the fact that any manipulation of the child’s genitals by her was not sexually motivated, the father’s willingness to be vigilant over the child’s protection and his proven capacity to act proactively and compliantly with the past JIRT investigation despite his belief in the integrity of the paternal grandmother, the child’s recent education by a psychologist with “protective behaviour counselling”, and the acceptance by the mother and paternal family that the child is now old enough to apply creams and lotions to her own body.

5. Even the Department, the staff of which concluded the paternal grandmother was a risk to the child, assessed the “future harm level to [the child] as low”.[76] The Family Consultant also regards the risk as “reasonably low”.[77]

   [76] Family Report, par 56

   [77] Family Report, par 66

6. In the absence of any unacceptable risk, there is no warrant for the injunction proposed by the mother, with which conclusion the Family Consultant agreed.[78]

   [78] Family Report, pars 75-76

Conclusion

1. Given the finding that the paternal grandmother does not pose any, or any unacceptable, risk of harm to the child the mother’s application for the imposition of supervision upon the time spent by the child with the paternal grandmother is dismissed.

2. Accordingly, there is no need to consider the arbitrary time limit the mother proposed apply to such an injunction.[79]

   [79] Exhibit M1, Order 2

3. The mother’s proposal of an order mandating the parties’ use of a communication book[80] is also dismissed. It was uncontroversial that communication between the parties is poor and I accept the Family Consultant’s evidence in cross-examination that forcing the parties to use a communication book may simply serve to introduce a vehicle for perpetuation of their conflict. The Family Consultant was unable to even hazard a guess about how such a communication tool would work for these parties, but the father was expressly pessimistic about it being worthwhile. I tend to agree in light of the mother’s vehemence that “the trust has gone”.

   [80] Exhibit M1, Order 3

4. I do, however, accept the mother’s final proposal that the parties be ordered to attend a post-separation parenting program.[81] Although the proposal was not addressed in the evidence at all, any attempt to quell their hostility is worth an attempt in the best interests of the child. The father did not consent to the proposed order in final submissions, but he did say in cross-examination that he was willing to try to improve his relationship with the mother.

   [81] Exhibit M1, Order 4

5. I reject the Independent Children’s Lawyer’s proposal for an order requiring the parties to jointly attend doctors’ consultations in respect of the child’s eczema management.[82] Firstly, the evidence is that the child’s eczema condition has subsided somewhat in the past year. Secondly, the Court should not be expected to descend into such minutiae concerning the affairs of a child. The parties were allocated equal shared parental responsibility for the child in May 2010 and neither sought to disturb that situation in these proceedings. In such circumstances the parties should sensibly exercise the parental responsibility they each already have rather than expect the Court to resolve their petty differences. Should there be no satisfactory resolution the only viable course would seem to then be the allocation to one party of sole parental responsibility for the child’s medical management. In the knowledge of such a potentiality I expect that the parties can resolve any disagreement over the issue.

   [82] Exhibit ICL4, Order 2

6. I accept the Independent Children’s Lawyer’s proposal for orders restraining the parties from discussing any aspect of the proceedings with the child and from permitting the child’s exposure to denigration of family members.[83] Such orders were not made in April 2010 and they could not now be the subject of rational objection. The Family Consultant embraced the idea as a good one.

   [83] Exhibit ICL4, Orders 3-4

7. Although not sought by either party or the Independent Children’s Lawyer, an order is made requiring investigative authorities to be furnished with copies of the Family Consultant’s affidavit, the Court’s orders and the Court’s reasons in the event of any future complaints being made about alleged abuse, or risk of abuse, of the child. It is important that the police and Department have copies of those documents to contextualise their investigation of any future allegations.

8. I am satisfied that the orders set out at the commencement of these reasons, in conjunction with the orders made on 1 April 2010, will serve the best interests of the child.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 May 2012.

Associate: 

Date:  3 May 2012

    Exhibit ICL2