Betts and Dillon

FAMILY COURT OF AUSTRALIA

BETTS & DILLON

[2016] FamCA 272

FAMILY LAW – CHILDREN – sexual abuse allegations – where child makes a statement to mother but the allegation is otherwise not corroborated by any objective facts – where mother’s affidavit material prepared by her solicitor is vague and an incomplete picture – examination of surrounding material obtained by Independent Children’s Lawyer establishes no unacceptable risk.
FAMILY LAW – Where second child makes an allegation but later vacillates as to whether or not it was a dream – no unacceptable risk.
FAMILY LAW – Where mother relies upon psychologist who is counselling child but without proper factual foundation, that reinforces in the mind of the child that something happened.
FAMILY LAW – Where family consultant expresses concern about mother’s psychological abuse of the children.
FAMILY LAW – Contact regime ordered.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

B and B (1988) FLC 91-978; (1988) 12 Fam LR 612
Briginshaw and Briginshaw (1938) HCA 34; (1938) 60 CLR 336
Chappell and Chappell (2008) FLC 93-382
Fardon v the Attorney-General for the State of Queensland [2004] HCA 46
Harman v Secretary of State for Home Office [1983] 1 AC280
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
M and M [1988] HCA 68; (1988) FLC 91-979; (1988) 12 Fam LR 606
Marsden and Winch (No 3) [2007] FamCA 1364
WK v SR (1997) FLC 92-787; 22 Fam LR 592

APPLICANT:

Ms Betts

RESPONDENT:

Mr Dillon

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4467

2015

DATE DELIVERED:

28 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4, 7, 8, 11, 12, 13 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kent-Hughes

SOLICITOR FOR THE APPLICANT:

Clark Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Robert Halliday & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbayannis Lawyers

Orders

That save for matters described as major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)), the father and the mother have equal shared parental responsibility for the children B born … 2007 and C born … 2010.
That the mother have sole parental responsibility for major long-term decisions about the education of the two children.
Before any major long-term decision in relation to education is made in relation to the children, the mother communicate with the father by email:
(a) the nature of the decision to be made; and
(b) her views as to what should be done; and
(c)requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out, the mother shall consider it, and upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided, the mother shall be entitled to make the decision without further consultation with the father.
That the mother and the father have equal shared parental responsibility for all major long-term decisions concerning the children not otherwise covered by the orders above.
That the children live with the mother.
That upon the direction of Dr D or her nominee and as soon as practicable hereafter, the mother deliver the children for the purposes of:
(a)having the orders this day explained to them by Dr D (or her nominee); and
(b)the children receiving such consequential counselling as may be necessary and directed by Dr D (or her nominee) to ensure the efficient implementation of these orders.
That the costs of all attendances upon Dr D (or her nominee) as required by these orders shall be shared equally by both parents and all payments be forthwith made upon the production of a tax invoice by the health provider.
That the father attend upon Dr D (or her nominee) as she may direct for the purposes of counselling as to how to be most appropriately reintroduced to the children and all such attendances shall be at his expense.
That the children spend time with the father as follows:
(a)commencing on 21 May 2016 and then each Saturday until 30 July 2016, from 10.00am to 2.00pm with either the paternal grandmother and/or the father’s sister being in substantial attendance throughout;
(b)from the first Saturday in August 2016, during each alternate weekend but only for the Saturday and the Sunday respectively from 10.00am to 4.00pm on each day;
(c)from the first Friday in December 2016, during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning;
(d)for the specific period of 3.00pm on 24 December 2016 until 3.00pm on 25 December 2016 and for a similar period in each alternate year thereafter and for the period of 3.00pm on 25 December 2017 until 3.00pm on 26 December 2017 and for a similar period in each alternate year thereafter;
(e)for one half of all school term holidays commencing with the school holidays that commence at the end of term 2 in 2017 and if no agreement is reached as to which half, the first half;
(f)for two weeks of all long summer school holiday periods on dates to be agreed commencing with the holidays that begin in December 2017 and if agreement is not reached, then the two weeks that commence on 1 January 2018;
(g)for the avoidance of doubt, until the commencement of the school holidays at the end of school term 2 in 2017, the alternate weekend periods shall continue save that during school holiday periods, the time shall start at 3.30pm on the Friday and conclude at 9.00am on the following Monday morning
For the purposes of paragraph (11) (save 11(c)) the mother deliver both children for these contact periods outside the Chirnside Park play centre at the commencement of the time and collect them there at the end of that time.
For the avoidance of doubt, for the purposes of paragraph (11)(c), the father is to collect the children from school and return them to school.
For the avoidance of doubt, alternate weekend time under these orders is suspended during school holidays once the provisions of paragraph (11)(e) commence.
Pursuant to s 68P of the Family Law Act 1975, these orders are, and may be into the future continue to be, inconsistent with an existing family violence order issued by a Magistrates’ Court within the State of Victoria. That inconsistency arises by virtue of the entitlement of the father named in these orders being present with the children named in the orders and at handover of them, in close proximity with the mother named in these orders. To the extent necessary to say so, the explanation for that order is contained in the reasons for judgment published this day.
For the purposes of paragraph 68P(3) of the Family Law Act 1975:
(a)a copy of these orders and the reasons published this day may be provided to any Magistrates’ Court of Victoria for the purposes of consideration relating to any application issued by the mother for a family violence order including an extension of any such application; and
(b)the Registrar of the Magistrates’ Court at Suburb E (Case …) is requested to place a copy of this order upon the court’s file.
For the purposes of paragraph 68P(3) of the Family Law Act 1975, a copy of this order shall be sent by the Court to the Chief Commissioner for Police for the State of Victoria for noting as being inconsistent with a family violence order issued by the Magistrates’ Court at Suburb E under reference ….
That the Independent Children’s Lawyer explain these orders to the children.
That the Independent Children’s Lawyer provide to Dr D or her nominee a copy of the reasons for judgment this day together with a copy of these orders.
That the father is at liberty to provide a copy of these orders (and if necessary the reasons for judgment this day) to all psychologists, psychiatrists and counsellors upon whom the children are attending or have been attending, with specific attention being drawn to his responsibilities in respect of equal shared parental responsibility.
Upon the completion of the obligations under these orders, the Independent Children’s Lawyer is discharged.
That all outstanding proceedings are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Betts & Dillon 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 MELBOURNE

FILE NUMBER: MLC 4467 of 2015

Ms Betts

Applicant

And

Mr Dillon

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This determination is about whether or not B (aged eight) and C (aged five) would be placed in a situation of unacceptable risk of harm from sexual, physical or psychological abuse if they were to spend time with their father.
B and C are the only children of Ms Betts (“the mother”) and Mr Dillon (“the father”). The allegations giving rise to the issue for determination are that the father sexually abused both children. The mother has no room for doubt in her mind that the abuse occurred. The father denies that he has done any such thing.
For the reasons that follow, I am satisfied that there is no unacceptable risk of harm to the children either of sexual abuse or physical abuse if they were in the care of their father. I remain sceptical about whether the children are at unacceptable risk of psychological harm in the care of the mother. Be that as it may, there is no application that the children live with the father. This application is about the children’s time with their father.
The allegations in this case against the father are extremely serious. The protection of children from harm is a high priority for this Court and it will be evident from the reasons that follow, the outcome has not been an easy one but at all times, I have focussed on what is best for these children.

The standard of proof

Where any allegations are made, but particularly serious ones of this nature which could have the consequence of restricting, if not terminating, the relationship between a parent and child, the burden of proof falls on the accuser. In this case, it is for the mother to establish on the balance of probabilities that the unacceptable risk of harm to the children of a sexual or psychological nature, exists.
Section 140(2) of the Evidence Act 1995 (Cth) provides that without limiting the matters that the court may take into account, it must consider:
(a)      the nature of the cause of action or defence; and
(b)      the nature of the subject-matter of the proceedings; and
(c)      the gravity of the matters alleged.
How a court is persuaded has been discussed many times. Reference is made to Briginshaw and Briginshaw (1938) HCA 34; (1938) 60 CLR 336. The principle that arises out that decision is that the court should not act on mere suspicion, surmise or guess work. The standard of proof required will vary according to the seriousness or importance of the issue. As Dixon J said, the reasonableness of the satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.
Dixon J (as his Honour then was) said that the relevant tribunal had to feel “actual persuasion” of the occurrence or existence of the fact before it could be found to have occurred or exist. Rich J said that there had to be a “comfortable satisfaction” that the tribunal had reached both a correct and just conclusion.
The consideration here therefore is whether the court can be comfortable that its decision is correct and just but the standard must be one of reasonable satisfaction.

A positive finding?

In M and M [1988] HCA 68; (1988) FLC 91-979; (1988) 12 Fam LR 606 and

B and B
(1988) FLC 91-978; (1988) 12 Fam LR 612 the High Court considered the circumstances in which a trial judge should make a finding of sexual abuse when considering children's issues under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Court, at FLC 77,080-77,081, Fam LR 610-611 said (citations omitted):
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds; McKee v McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the best interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (supra). I could not make such a finding here.
In WK v SR (1997) FLC 92-787; 22 Fam LR 592 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said at FLC at 84,691, 84,694-84,695; Fam LR at 599, 602-603:
26.However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.

Unacceptable risk

The Full Court of this Court (cf Marsden and Winch (No 3) [2007] FamCA 1364) examined just how the court should deal with sexual abuse allegations.

I have considered all of the principles to which I now turn and can say that I am comfortable in saying that having assessed the evidence on the balance of probabilities, these children do not face an unacceptable risk of sexual or psychological harm in the care of their father.
The primary evidence in the current case came from the mother. It is a truism that a litigant’s case revolves around the evidence in chief. In this case, that was poorly prepared and poorly presented. There appears to have been little thought to the need to focus on the unacceptable risk concept. It was certainly the mother’s view that the Court’s function was to find established that the father had committed the acts alleged. It was disturbing that she did not understand the process and in particular, the concept of unacceptable risk until after the hearing began.
In Fardon v the Attorney-General for the State of Queensland [2004] HCA 46, the High Court of Australia contemplated the words “unacceptable risk”. Various judges made reference to the earlier authority of M and M (supra). Gleeson CJ referred to M and M in the context of the magnitude of the risk that would justify a court in denying the parent time with the child. The Chief Justice referred to the fact that the High Court had previously warned against:
Striving for a greater degree of definition than the subject is capable of yielding.
In Fardon (supra) McHugh J said that the issue of risk had to be determined according to the rules of evidence.
In the same decision, Callinan and Heydon JJ at 225 said:
The yardstick to which the court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability…established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which the courts historically have had regard in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one.
Whilst the rules of evidence do not apply in this case save for the issue of admissibility by relevance, similar concepts must be considered important. There must be acceptable and cogent evidence. To evaluate the evidence and make a prediction necessarily requires an examination of the surrounding facts. It is well known that in sexual abuse cases, the primary source of the complaint is the child who is often unable to articulately describe what happened in adult language. The court is obliged to look at the context and then make the prediction as to what is likely to happen if the accused parent and the child are put into a normal or unsupervised environment. Obviously, the evaluation task requires the court to not just look at what occurred but the nature of that risk and its consequences for children. It is as important to protect the child as it is to ensure that the child is not unfairly tagged with having been sexually abused which has the potential for enormous damage to any future relationship with a parent.
Thus, to be satisfied to the relevant standard of the unacceptable risk of harm to these current children, the Court is obliged to look at all of the circumstances of the allegations and not just the words that C and B have uttered. To find that these incidents did occur would require much more than the evidence here. The issue is whether in all the circumstances, there is a risk which is unacceptable. The proofs there do not need to be as exact, and inferences can be drawn on what is presented but I am comfortably satisfied that the evidence does not create such a satisfaction for the reasons that follow.

The evidence leading to the cessation of the father’s time with the children

The relationship between the mother and the father was, from her perspective, less than ideal. A major complaint about the father was that he masturbated frequently. That becomes relevant to a number of things set out below. For example, if, as asserted by the mother, there was frequent masturbation including in bed in the morning before the father got up or at any time the whim attracted him, there would have been a possibility of C and B observing it. So vivid was the description given by the mother that she described him masturbating on the carpet and in the doorway of the pantry and leaving his bodily fluid where it fell. She complained of having to clean it up. A particular complaint about that related to the carpet in the lounge room even to the point that she observed that new carpet was laid but that he continued his habit thereafter.

A cursory examination of the mother’s evidence was that the father masturbated “in front of” the children. It was only when this evidence was put under some careful examination that she conceded that the masturbation did not occur in front of the children in the sense of them seeing it but rather that it occurred whilst they were about. Examples were given. One such example was that when B was a baby, he was on the bed and the father was said to have been masturbating under the doona. Other evidence included the fact that the children were wandering around. One particular incident however was that she said B was in the high chair in the kitchen and she came in to find the father watching pornography on his mobile telephone with his back to her facing into the pantry, and masturbating. She maintained that this was in front of the children until it was brought to her attention that the police statement which she subsequently made, said otherwise. In that, she indicated to the police officer that she did not think that B saw what she was asserting. When queried about the distinction between the children seeing something and being in the area or in the presence of the father masturbating, the mother conceded that she could not say they had seen it.
In her affidavit, the mother said that she obtained employment at a particular supermarket. The parties had a dispute during the trial as to whether the father wanted her to undertake that work or whether it was all her doing. In what I could only consider a bizarre concept, counsel for the mother put to the father that he wanted the mother to work at night so that he could “groom” the children for the purposes of sexually abusing them. If indeed that assertion was put on instructions, it was certainly not apparent from the affidavit material and certainly not apparent from the mother’s outline of case document. To the extent that I need to make any finding about the issue at all, I am satisfied that the father’s version is probably right in that there was agreement that the mother would work and she did so.
To end her unpleasant work environment, the mother enrolled in further training whilst still working in the supermarket but was able to reduce her hours by obtaining alternative employment. That ultimately enabled her to conclude the supermarket employment.
As November 2013 came around, the parties’ relationship was virtually at an end. The father moved out of the home and had no independent accommodation so he lived with his sister. The mother and the father agreed that he could have unsupervised time with the two children as soon as he got appropriate accommodation. In the interim period, the father attended the home and spent time with the children. The relationship between the parents was sufficiently good by November 2013 for the mother to go to her night school and leave the father in charge of the household with the two children including bathing them and putting them to bed.
On the night of 12 November 2013, the mother went to school. As she left, B was in the lounge room and the father and C went into the shower. Showering with the children is not unusual.
Late that night, the mother telephoned the father to indicate that she was on the way home and in her evidence, said that he talked in a funny way. The inference that the mother would have the Court draw was that this “funny voice” had some sinister connotation. She said that when she arrived home, he asked her what she wanted to talk to him about. She said she was perplexed by his question and combined with the “funny voice”, noted that he seemed uncomfortable and wanted to quickly leave and did so. The father’s explanation for the question was that there had been a discussion earlier and before the mother went to school, about having to talk about something and that when she returned home, he again raised it. I consider the father a better historian and therefore accept it as more likely than not, his version is right. For the father to simply ask the question as described by the mother would not make sense. It would make sense that, if there was a subject raised earlier, he would ask for the discussion to be concluded. The mother gave no indication that the father’s view was incorrect. Combined with the reference to the funny voice and by making no mention of what had been said before she went out, she was asking the Court to infer that his conduct was indicative of a guilty mind. Nothing otherwise in the evidence, indicates that. Around this time, the father was working in an early morning start and accordingly, the lateness of the hour would mean he expected to leave as soon as the mother came home.
One week before this night however, he did not leave. It was common ground that on the night of the 6 November 2013, upon the mother’s returning home, the father was watching television on the couch. She said he massaged her and eventually they had sexual intercourse on the floor in front of the couch. There is nothing unusual about that except for one thing. Throughout their relationship, the parties’ method of contraception had been what was described in the affidavit as the withdrawal method. As he was about to ejaculate, the father would withdraw. He would then ejaculate on the mother’s stomach or back and then wipe his bodily fluids with a towel that they kept for that specific purpose. The night of 6 November was a significant event because it occurred only a week before the most serious allegation arising out of these proceedings occurred and it has had an impact because of the forensic medical report obtained by police to which I refer below.
On the night of 12 November 2013, before leaving to go to her night school, the mother said that C’s pyjamas were placed on the bed when the father got into the shower with the child. Although there was some confusion about when those pyjamas had last been washed, I am satisfied that they were at least worn on the night prior to C going to bed on 12 November 2013.
During the night of 12 – 13 November, and obviously after the father had left and gone home, C came into the mother’s bed and stayed with her during the night until she awoke the following morning. It is important that I put into these reasons, the exact evidence of the mother as outlined in her affidavit of evidence in chief. She said:
C rolled on to her back and slid her hand under her nappy and said “Daddy did this to my jutsy”.
C was making a circular motion with her hand. C said:
Daddy got his willy out and something came out the end of it and it landed on me.
C said:
That’s OK Mummy. You can just wash it.
I asked C where did this happen. C said:
Here Mummy
as she tapped on the bed. At this stage C was jumping on the bed and said “Daddy licked jutsy”. I went into shock.
The mother said that she contacted a friend and as a consequence, she went to her local medical clinic where she spoke to the receptionist. It would seem that the receptionist spoke to the doctor but neither receptionist nor doctor spoke to C. Apparently, their recommendation was to report the matter to police and as I understand it, the doctor called the police.
The mother then left the doctor’s clinic and went to the police station where she arrived and met Detective F. The evidence about what happened then was at best confusing, and at worse misleading, because the mother said that C spoke to Detective F. The inference to be drawn was that that occurred after arriving at the police station.
Detective F conveyed the mother and C to the K Medical Centre where Dr G, a qualified medical practitioner, examined C. Apart from obtaining a history from the mother, Dr G said she was unclear exactly where on C’s body, her father may have ejaculated. After discussion with Detective F, Dr G asked C if she knew where “the something came out of Daddy’s willy went”. C was unable to tell her. Dr G then said that when the mother asked the same question, C lifted her jumper to show her abdomen.
There is significance in the fact that C was unresponsive to the doctor because this was less than seven hours after the statement made by C to her mother.
Dr G then swabbed the whole of the abdomen area having apparently first satisfied herself that it had not been washed.
Dr G then asked C what she called her genitalia and the child replied “jutsy”. The doctor then asked whether anyone looked at her genitalia and C replied:
Mummy, Chloe and Chloe’s mummy.
None of this was mentioned by the mother in her affidavit.
The doctor then asked whether anyone had touched her other than Dr G herself and C replied with the same names just mentioned. The question of C’s capacity to remember something only a few hours before was not pursued by the counsel for the Independent Children’s Lawyer or the father and certainly not by counsel for the mother.
The medical examination of C then took place and on any view, it was intrusive. Samples were taken which were then provided to the police forensic medical service.
Dr G was not called to give evidence and no affidavit material was provided by her. Importantly, it was only in the course of my querying what had happened at that examination, that Dr G’s statement was produced from the police file. Whilst counsel for the Independent Children’s Lawyer was of the view that she had produced it, the more curious question was why the mother had not.
Counsel for the mother, during his cross-examination of the family consultant, suggested that Dr G had concluded by virtue of what C had said, that she had seen her father’s penis. Having regard to what had happened on 13 November and what was about to happen over the ensuing 24 hours, there was no foundation for that question nor could it possibly have been relevant without the doctor having been called to explain how any such opinion could arise.
Detective F later spoke to C and specifically reminded her that she had said that something had come out of her father’s willy. The child was asked what it was and she described “a flower”. None of this was mentioned in the mother’s evidence in chief. Even a cursory examination of the mother’s affidavit shows that important things were not mentioned. The mother’s explanation for this absent but important material was that she gave it to her solicitor. It was unfortunate that the absence of the details raised doubts about what C said because those raise questions of the truthfulness of the mother. Despite giving counsel for the mother an opportunity to call his instructor to confirm what the mother said, he did not do so. Only because the Court was able to patch together these facts from the subpoenaed sources was the mother’s credibility saved. Another example of the problem of lack of candour occurred when C was questioned by the police.
C was also asked by another detective:
What does Daddy’s willy look like?
and C replied:
I can’t tell you.
The mother’s evidence was then silent about what happened until the following day when C was returned to the same police station for what was to be a VARE interview. There was also an interview of the mother. The mother attached a copy of the statement she signed at 12.28pm on 14 November 2013 to her affidavit but gave no indication of exactly what had occurred between she and C the previous evening or on the morning of 14 November until the arrival at the police station. It was also unclear whether the police statement by the mother was attached to her affidavit as evidence of her reporting matters to the police or indeed was intended as part of the narrative of the affidavit. If it was the latter, it was a lazy way of leading evidence in chief. It was difficult to know what the purpose was but I have included the police statement as part of the evidence.
It is reasonable to say that Detective F concluded that “no disclosures” were made to her.
On 14 November 2013, the mother said that at the time C woke, she had a soiled nappy which was then removed and placed in a garbage facility. Despite having a dirty nappy, it will be remembered that the mother described C putting her fingers in her nappy. The reference to the dirty nappy only appeared in the police statement. No party questioned the accuracy of these pieces of information. The mother said she had wiped the child appropriately but apparently not the child’s abdomen. C had not been bathed or showered that morning. When the police endeavoured to recover the soiled nappy, it appears to have been taken by the council garbage truck. Just what that might have established remains unsaid.
After having taken a statement from the mother, a different detective endeavoured to interview C. To use the detective’s words,
The complainant failed to particularise any offences occurring.
The following however was said:
She mentioned, “Daddy wiggled my jutsy”. She said it occurred in her mother’s room when her mother and brother were in the lounge room. She was unable to describe the incident further however, randomly mentioned, “he popped me in his willy. He hopped on me. He was doing push-ups”.
It is important for the determination in relation to the level of satisfaction about unacceptable risk, that C had not repeated the complaint made to the mother despite the relevant proximity of time. I did not hear evidence from the woman to whom the mother spoke before going to the doctor’s clinic. Evidence of “recent complaint” might have assisted. I did not hear from either the doctor or his nurse or receptionist as to the nature of the conversations that occurred there. These may have all been relevant had they in some way given an indication of the nature of the conversation between the mother and C and anything else that C may have said.
When C was taken to the police station on 14 November, her pyjamas were taken and sent to the forensic laboratory along with the swabs taken by the K Medical Centre. This evidence was not called other than by the production of the biology report again from the police file. No evidence was called by the mother to assist in the interpretation of this report. Endeavours were made through Detective F to describe her understanding of what the report meant from a prosecution point of view but in fairness to the detective, she readily conceded that she was not an expert and was interpreting the document in the same way as the court was. The swabs from C’s abdomen showed no spermatozoa. There is significance in that bearing in mind C’s very clear statement to the mother and, to the extent that it could be accepted as volunteered, reaffirmed by C to the doctor by lifting her jumper.
Dr G had also taken swabs from the perineum and the vulva of C. Reference was made to the father doing push-ups on top of C as well as “wiggling” her vagina. No sperm was detected in those areas nor more importantly, was any DNA profile obtained. As becomes important later, the police had the benefit of a DNA sample from the father.
Nothing about C’s statement to the mother was corroborated at any stage to the point when the police interview was concluded. When the mother was asked about this in cross-examination, she indicated that that was not surprising because C would not open up to strangers. I have great difficulty with that having regard to the expertise of the police officers involved (they being from a specialist sexual abuse squad) but also the expertise of the doctor at the K Medical Centre. I had the benefit of hearing from Detective F and she gave no indication of such a difficulty. Counsel for the mother did not pursue that evidence. No suggestion was made by counsel for the mother that this sequence of events involving the police was improperly recorded, inaccurately undertaken or indeed carelessly dealt with.
On 15 November 2013, the father was taken to the police station and interviewed but no charges were laid. His version, as given to the police, was consistent with his version in evidence and there were denials of any wrongdoing.
An unusual issue then arose. The forensic biology report to which I have referred also examined the pyjamas that the police had taken from C. They found a seminal stain on the ankle at the back of one of the legs. The sample was said to identify the DNA of the father and also C but further investigation by the biologist showed another contributor. That contributor remained, and remains, unidentified. The mother said that she was not asked to provide a DNA sample and importantly, no pursuit by the mother of the relevance of this third contributor was followed up. The Court was left to speculate. The fact that the police were no longer interested from a prosecution point of view should not have meant that the mother was prevented from undertaking her own inquiries or indeed, using these materials as evidence. They may have come to nothing but no inquiries were made. In a case where the mother was absolutely certain of the commission of the incident by the father, this lack of inquiry was perplexing. It indicated to me that the mother saw no room for any other possible explanation.
One of the considerations by Detective F, was that it might have been possible for the sperm of the father to have remained on the carpet in the lounge room not far from the television and that it had transferred to the pyjamas. It will be recalled that not only did the mother complain about the fact that the father masturbated on the carpet and did not clean up his bodily fluids but there was consensual sex on 6 November on that carpet. Detective F seems to have suggested to the mother that it was possible for such a transfer to occur up to seven days. There is no scientific support for that theory (at least in evidence) but if it was right, it coincides with the night of the sexual intercourse between the parents.
The speculation just mentioned and the absence of any evidence as to who might be the third “contributor” on the pyjamas, means that this Court should be very wary about drawing any adverse inference from the fact that there was DNA of the father identified in the “seminal stain”. Apart from the fact that it would be inconsistent with C’s descriptions of what her father was doing with her, it flies in the face of the suggestion that what came out of the father’s “willy” landed on her abdomen. In addition, it will be remembered that these pyjamas had been worn on the previous evening to the particular incident concerned and as such, one might also speculate that the child was on the floor in the lounge room much closer in time to the sexual intercourse of

6 November.
The police closed their investigation not just because of the fact (as the mother would have it) the child was too young to give evidence but that the corroborative evidence did not support a prosecution. A criminal prosecution of such serious offences needs to reach the standard of beyond reasonable doubt for the possibility of a conviction. That is not the standard that this Court has to apply notwithstanding what I have earlier said about the level to which the balance of probabilities needs to rise. In my view however, there are possibilities here such that it would be unsafe to accept the statement attributed to C meant what the mother intended the Court to accept.
It is also significant that the father was interviewed and made denials. Importantly however, he said that he had changed C’s “dirty nappy” and that there was nappy cream and “poo” everywhere on C and he had to clean her thoroughly but that that was not unusual. The mother led no evidence to show how the father’s statement was inconsistent with the reality.
Counsel for the mother did not put to the father any question as to how he would explain the statement of his daughter. The father was not probed on that issue. It may have been unnecessary in any event because he was asked that by the police. C had said that her father had “licked her jutsy” and the best explanation that the father could give to the police for this was that he:
Sometimes burps on her stomach but never her vagina area.

I have mentioned the speculation (certainly by the police) about the semen transfer from the carpet to the pyjamas. The police had contemplated that and interviewed the father on a second occasion on 2 March 2014 during which he was asked about the sexual activity on 6 November 2013. He apparently confirmed exactly what the mother had said and had used the towel to wipe off his bodily fluid. Importantly, he said that he denied masturbating in the house at any time since they had separated on 2 October 2013. The father was not challenged about that by counsel for the mother. If so, apart from the consensual sex on 6 November, that statement would have presumably eliminated the speculation about the transfer from the carpet to the pyjamas (if indeed there was some scientific evidence to show that such a transfer could only occur for a maximum of seven days). The mother did not follow that up. If indeed there was such evidence, it would have excluded masturbation as a possibility leaving the question of how the father’s sperm could have got on to the carpet from a sexual act on 6 November. That was also not pursued by the mother. The vagueness of all of these things brought the focus back to what C said had occurred because otherwise, all other possible explanations had been eliminated.
The mother said that she was not happy about the police decision not to investigate further and prosecute the father. There was some suggestion that she wanted to appeal. Whatever her intentions were, and I am unable to find exactly how she felt, nothing seems to have been done. In the proceedings before this Court, there was a perfect opportunity for that evidence to all be properly put together and tested. The father had no right of silence as he would have had in any police investigation and indeed in a criminal trial.
It could not be said that the mother did not have this matter foremost in her mind thereafter because she has attended psychologists and counsellors as well as spoken to the police and the Department of Health and Human Services.
I am left with the evidence of what C said to the mother. In my view such a statement could be misconstrued and having regard to the fact that the statement and the discussions with the mother’s friend, the receptionist and the doctor are all missing and there is no other objective evidence, I am not convinced at all that anything untoward happened to C on the night of

12 November 2013.

The maternal grandmother

The maternal grandmother’s evidence was that she was told by the mother of the “disclosure”. There is an obvious underlying assumption in the use of the word “disclosure” namely that it is true. The grandmother said C told her:
Daddy touched my jutzy.
The temporal connection with November 2013 was missing save that it was said to be in early November but before the mother had told her of C’s accusations. No mention was made of the context of the statement. Reference was made to “jutsy” being the child’s word for vagina but no indication was given as to how the grandmother knew that. No reference was made as to the grandmother’s reaction or comment other than what I consider a bizarre statement:
I had every intention of asking [the mother] about it but it went out of my head.
As this evidence was not the subject of challenge, there is no reason for me not to accept it. That said, to not consider the statement unusual because of the child’s use of the word “touched” seems very odd. No reference was made to the grandmother’s understanding of any problems in her daughter’s relationship with the father. If that had been in her mind, particularly with the complaints about masturbation, one might have expected the word “touching” to be unusual.
The first discussion between grandmother and mother was said to have occurred when the mother returned from the Suburb H police station and told “us” of C’s accusations. Nothing further was mentioned about attending police. No mention was made about the subsequent “supervised” contact visit. No mention was made about C’s language skills. All of these things make the evidence of little probative value where the recollection occurred after the events of 13-14 November.
The grandmother went on to describe events in “late February 2014” at her home. She described what C said and that C “rotated her fingers around the inside of her vagina”. There is importance in the timing of this because there was a third interview between the police and the mother on

26 February 2014. No reference was made to the grandmother’s observations in the mother’s statement to the police signed on 21 June 2014. It is possible that “late February” was after the mother’s interview on 26 February but I should have expected some precise evidence in the mother’s affidavit; there was none.
As best I can tell from the synopsis of the material produced under subpoena, no reference was made about the grandmother’s observations by the mother to ECASA where she had been referred nor was any concern raised with the Department of Human Services. If it was, no such evidence was put before the Court.
In her evidence, the grandmother made reference to witnessing a meeting between C and the father and her observation was:
In retrospect, it appeared lover-like towards [C].
Just what that quote meant, I am unsure but it seems to have been referring to an incident after November 2013. In cross-examination, the mother seemed unsure of the inference to be drawn by this Court. No indication of the relevance of this particular statement has been made evident particularly by the mother or her counsel. Similar statements were made about a discussion in October 2015 but this time, the grandmother contacted the Department of Human Services. I have no idea what happened.
At Christmas 2015, the grandmother heard a conversation between C and the child’s four year old cousin. No indication was given about what the grandmother did thereafter. I find the evidence is vague and unhelpful except that it shows C was still talking about these things. It also showed that little thought had gone into the preparation of affidavits. There was little connection between the pieces of facts. Little attempt was made to identify relevant facts. This was a serious child protection case and the Court deserves better than the efforts made by both solicitor and counsel. Thus, the investigation by the family consultant only weeks later on the subject of C’s memory and her understanding of what happened, became critical.
The difficulty I have is that the evidence of the grandmother is so unconnected with what was apparently going on in the mother’s household that the evidence is of little probative value. For example, the mother concedes that the subject of sexual abuse had been discussed although she would have the Court accept that it was only when raised by C. Here was an example at Christmas 2015 where it was raised by C but with a cousin who presumably could have no concept of what C was talking about. The grandmother did not tell the Court what she did about it. She did not say whether the cousin’s parents were thereafter involved.

Ms I Betts

Ms I Betts is the mother’s sister and as I learned from counsel for the mother, she is the parent of the cousin referred to in the grandmother’s evidence just mentioned. Notwithstanding she swore her affidavit in February 2016, she made no reference to a conversation with her own mother about the Christmas episode. I find that very odd.
Ms I Betts said her daughter told her that B had made reference to his “doodle” being “licked”. No indication was given as to what she did about it. Interestingly, B is said to have referred to the licking incident in April 2014. He spoke to the police in May 2014. A discussion between B and his cousin occurred in July 2014. Like C, B was still talking about something having happened. Just why that was so and what was done about it, remains unsaid.
I draw attention to the fact that the mother said the issue was discussed if the children raised it. They did, but what happened remains unknown. It is important because when B attended upon the family consultant, despite being the older sibling, he deflected his memory to that of his sister.
The balance of the maternal sister’s affidavit was more an indication of her disdain for the father. She referred in a separate and specific paragraph to the fact that the father “smoked in a school grounds”. One might ask what the relevance of that was. She went on to say she found it hard to have a conversation with the father. Ironically, the mother did not. To the extent that the complaint about the school ground was meant to be reflection on the father’s inability or refusal to comply with rules, that was hardly a complaint made by the mother. The evidence of Ms I Betts unfortunately does not assist in the determination of unacceptable risk.

Mr J

Mr J filed an affidavit. His evidence was that C said “Daddy hurt me”. His evidence was of no probative value in the context of what had to be determined here.

The parties’ relationship after the allegations

It was certainly the father’s case that the mother had concocted these allegations. That does not make sense. There is little doubt that the parties were communicating successfully just after they separated. Whilst their relationship seems to have come to an end, the mother had ample faith in the father’s capacity as a parent to leave him in charge of the children and not just on the one occasion. Nothing about the night of 13 November was suggested by either party, to have ended in acrimony. The sad fact however is that the mother did not contact the father to ask for an explanation if one could have been given. She presumed the worst.
Subsequent to the incidents just described, the father and the mother continued to relate to one another and indeed, it transpires that the father had four visits to the home and spent time with the children under the “supervision” of the mother. The mother gave evidence that on the fourth of these occasions, an argument ensued which ended the friendly relationship. The argument appears to have been about money and she complained that the father pressed for his then agreed money under a property settlement and she became angry with him saying that he was concerned about money but had never denied sexually abusing C. She said his response was that she had to prove he had done wrong.
It was left to the father’s evidence and in particular cross-examination, to observe that there had been four visits and on his version, the subject of the sexual abuse had been raised by the mother on each occasion. The mother’s unequivocal position had been that it had only been raised on the last occasion but I am satisfied that common sense dictates that it would have been raised on each of the occasions. The mother knew of the events during the police investigation and when it came to an end. She must have known of the father’s position in any event because she was in contact with the police who had interviewed the father. I watched the father carefully in cross-examination.

I accept that he did assert to the mother on the fourth occasion when she raised the subject that she should “prove it”. I am satisfied that he did say the same sort of things by way of denial on the previous occasions. The mother pointed to this lack of denial (in saying “prove it”) as evidence to corroborate his “guilt”. It did nothing of the sort once it is accepted (as I do) that she had consistently raised it and the father consistently denied it. It is perplexing that these comprehensive details were not in the mother’s evidence. Silence on this subject by the mother during the same period of time when the investigation by the police was going on, was perplexing.
In conclusion, the fact that I am not convinced about the events relating to C, is not the end of the matter. I need then to turn to the question of the subsequent statement said to have been made by B.

The complaint by B

According to the mother, on 12 April 2014, B used the words:
I think I licked a Willy before.
It was the mother’s evidence that B made the statement above whilst sitting on the toilet playing with his penis. She was there and waiting to dress him so that they could go out.
A first reading of paragraph [21] of the affidavit does not give context to what the mother said occurred. In a police statement made over two months later, the mother said that B was “playing with his willy which had a bit of fluff on it and he was trying to pick it off”.
The mother said that she asked B whose willy had been licked and the child responded that it was his father’s. She said that B told her that his father asked him to do it and that it occurred in the parent’s bed.
This particular incident occurred almost three months after the last visit of the father to the house when the parties had argued over money and the mother accused the father of not denying the sexual abuse on C.
On 20 January 2014, so almost three months before B’s complaint, the mother attended ECASA and told the counsellor that she had explained to B that he was not seeing his father because:
Your father has touched a child inappropriately.
It is hard to get an impression of whether B would have understood what those words meant having regard to his age. On 30 January 2014, the mother told ECASA that B had been speaking to his father on the telephone and that B had said that his father was naughty and that as a consequence, the mother had terminated the call. This was a curious statement because to the police in June 2014, the mother said:
The last contact the kids had with [the father] had been in about late January 2014.
There is a possibility the date is correct but on the basis of the day of the argument over money, I doubt it. There is the reference to “kids” whereas the statement was about B alone on the telephone. This was another example of the poor presentation of evidence making the Court’s task of unravelling events difficult.
In February 2015 the mother attended ECASA again and said that B missed his father. On 2 April 2014, the mother told ECASA that the police would not be taking the allegations made by C any further and she had decided that there would not be supervised visits by the father with the children notwithstanding she told ECASA that her solicitor was recommending that occur so that she would be seen as reasonable by the courts.
Police had recommended by 6 March 2014 that there be no further action taken in relation to the allegations made by C. That was on the basis that it was “extremely unlikely” that any prosecution would result in a successful conviction.
At the end of April 2014, approximately two weeks after the incident with B on the toilet, the mother told ECASA that she had been “re-questioning” B. On the conversation on the day of the toilet when she asked B about what had happened, she said he told her that when he went into his father in the morning, his father had said that he had had a dream that B was licking him so he asked him to do it as in the dream. When she went to ECASA at the end of April, the mother told the counsellor that in her “re-questioning” of B, he had told her that that part (that is, the dream) had been made up.
The mother did not go to the police, and a statement was not made, until

21 June 2014. She did not mention in her statement [Annexure HMB7] about B changing his mind about the dream.
The family consultant in this Court examined the police notes produced under subpoena and she gave evidence that they indicated that the mother was reluctant for B to be interviewed by the police but B was recorded as saying that the incident occurred when he was three years old. Had that been the case, C would have only been days old. When the mother signed her police statement in June 2014, she said that she had asked B in April whether the incident occurred when his parents were still together and B was said to have indicated that they were. The mother then described to the police that she went to school every second Saturday morning from about January or February 2013 until October 2013. To the extent that she was putting the particular allegation of B into some temporal context, that timeframe was clearly incorrect because B was three years of age in 2010.
When B was interviewed by the family consultant (albeit in 2016), he repeated that he did not want to see his father because:
He touched my private parts.
B went on to say that his father had asked him to lick his willy. He repeated that he was two or three years old when this occurred and that his mother was at work at the time. Thus, as late as 2016, B was putting this particular incident into the 2009-2010 period but he identified that as being when his mother was at work. Nothing in the evidence suggested that the mother was working outside of the home at that time. At paragraph [62] of her trial affidavit, the mother referred to obtaining work at the supermarket for two or three nights a week but that was in the context of money being tight and there being two children in the house.
To the family consultant, B equivocated about what had happened to him. He said that he was not sure but then cited that C was the authority that something had happened:
Because she has stories and she said [the father] did do that to me, she helps me with my memory, she knows some of the stuff I forget.
The difficulty with that of course is that if the context that B was referring to was correct, C was either not born or only days old.
The mother was cross-examined about this particular incident and said that B changed his story because he did not want to get his father into trouble but in any event, he told it anyway. When questioned about the dream concept, the mother confirmed that B told her that he had made it up.
The subject of sexual abuse of these children is ever present in the mother’s mind. She agreed that she talks about it and if the children raise it, she openly discusses it with them. That reinforces in the minds of the children that something happened. In relation to B, the allegation does not make sense in terms of time and location but it was the mother’s evidence that the statement was made at a time when there were tumultuous activities in the household. C had made her accusations and it is hard not to imagine that B would have been aware of them as he was much older. C had been to police and doctors and B had witnessed time with his father at the home albeit that his mother was present. It must have been confusing for B to have his father suddenly disappear and to then simply be told that his father had touched somebody inappropriately. As was evident from what occurred between the mother and C at the K Medical Centre, I could not be satisfied that the mother simply allowed the narrative to flow naturally from the child. She pressed for answers and put concepts into the child’s mind. It is conceivable therefore that with the absolute faith that she has that her children are telling the truth, anything that was said, could be misconstrued.
In my view, it would be unsafe to accept anything that B said had the sinister connotation to it as the mother would have the Court believe. The mother has not established to any relevant standard that this event occurred (as distinct from B saying that something happened).

Dr L

Dr L is a clinical psychologist who was requested by the legal practitioners for the father to prepare a psychosexual assessment.
In addition to the mother’s very strongly held view about the father, her counsel suggested to the father that he had orchestrated the absence of the mother in November 2013 so that he could “groom” the children for the purposes of sexually abusing them. It is remarkable that Dr L was not required for cross-examination and no challenge was made to his evidence save one matter. Counsel for the father asked the mother whether she had read

Dr L’s report and whether it gave her some comfort but her response was that Dr L did not have the “information” that she had and the father had not been honest with Dr L. In the circumstances, the Court was alert to the fact that any foundation for the opinion of Dr L would have been reliant upon the facts given to him by the father. One would have therefore expected him to have been called to be questioned about the missing evidence or information. One would have expected Dr L to be challenged about the honesty of the father (it being the mother’s case that he was dishonest). One would have expected Dr L to be asked about counsel’s hypothesis that the father’s actions were “grooming”. None of this was done so the inference I have drawn is that the mother had instructed her counsel not to challenge Dr L because there was no such allegation to put.

Dr L set out not only his academic qualification but also his numerous professional positions, publications and areas of expertise.
He had given to him, the affidavit of the mother from August 2015 and the affidavit of the father of May 2015. This report was prepared in September 2015 so Dr L did not have the final affidavits of the parties nor was there any suggestion that he should read them. There was no suggestion that his evidence was to be updated.
Dr L found the father was not particularly verbal or assertive. Ironically, the same sentiments were echoed by the family consultant.
Dr L was aware of the allegations against the father of sexually interfering with C. He knew the precise allegations. He knew of the police investigation. He knew of the allegation against the father relating to B.
The description given to Dr L certainly coincided with the evidence given to the Court. The father acknowledged the use of pornography and

Dr L was aware of the masturbation allegations.
Dr L undertook the DSM-5 structured clinical interview and made a number of diagnoses.
As this evidence was not challenged, it is unnecessary for me to set it out in detail. What Dr L said in his evaluation was that there was “low confidence in the allegations for sexual abuse”.
The absence of any challenge by the mother (or her counsel) to the facts upon which Dr L operated, must mean that his opinion which was also unchallenged, should be accepted.
Dr L described the interpretation of the data as a valid profile. He then came up with the following conclusions. He described the father functioning in the superior range of intellectual abilities at a percentile of 95. He said there was no evidence of formal psychological disorder although there may have been some alcohol abuse.
Dr L reiterated that the risk of sexual violence assessment was low. That is important because Dr L looked at the surrounding facts including the use of pornography in the home. Dr L saw no reason that the father should not spend time with the children although he did say that there should be a ban on the use of pornography in the family home to exclude the possibility of the children being exposed to it. The evidence of Dr L is accepted and it is another supportive fact to suggest that the father is not a risk to the two children.

Other witnesses relating to the sexual abuse issue

Dr M is a psychologist who has been counselling C. Over opposition from the father, I permitted counsel for the mother to file an affidavit by Dr M albeit well into the trial. Dr M had been dealing with C for months and obviously, without any reference to the father.
Having been permitted to rely on the affidavit of Dr M, counsel for the father and counsel for the Independent Children’s Lawyer requested her attendance for cross-examination. Because of the way counsel for the mother cross-examined the family consultant, Dr M’s anticipated attendance was delayed. Dr M had attended the court but there was not time to hear her. On the following morning, counsel for the mother indicated that he was no longer relying upon Dr M. Despite Dr M being unable to attend the court, that did not explain why the affidavit was not to be read (as it could have been) but with an argument about weight. Needless to say, counsel for the mother said that the affidavit was not to be so read. Accordingly, I have ignored that material.

Dr N

Dr N is a clinical psychologist who has been seeing B for psychotherapeutic counselling since October 2015 on a referral based on advice to the mother from B’s school.
The circumstances of Dr N’s involvement in the proceedings (as distinct from his work with B) were unusual. Despite the Court’s orders arising from the directions hearing wherein this matter was set down for trial, no request was made to admit evidence by Dr N until the first hearing date. His report was only furnished as a “court report” on 30 March 2016 when the trial was to commence on 4 April 2016.
Dr N was mentioned to the family consultant who interviewed the parties and the children on 8 March 2016. B explained that he was seeing someone (whose name he got wrong) who “asks if anything is wrong” and who provided him with “strategies” if he missed his father.
Having regard to the fact that B had been visiting Dr N since October 2015 and the directions hearing was after that, the absence of this evidence was unusual. Had B not said something about it, the Court may not have been told. No explanation was given for its absence.
On the morning of the first day of the hearing, an application was made by counsel for the mother to file and read into evidence, the psychiatrist’s affidavit. In fairness to the mother, Dr N’s affidavit was mentioned in the purported outline of case that had been filed on the Friday afternoon before the Monday of the trial commencing. No indication was given in that outline of the relevance of the evidence by Dr N to any fact in issue.
Counsel for the father opposed the admission into evidence of the affidavit and the mother’s counsel could only indicate that it contained an opinion about B. As such, it could not be relied upon because of the single expert witness rules, a fact that counsel for the mother seemed to accept, because he did not press the request to rely upon it. Some days later, counsel for the mother stated that he had been denied the opportunity to file the affidavit and rely upon it. That statement was not only untrue but blatantly so.
It became clear that Dr N was treating B but for reasons which were then unclear. Counsel for the mother submitted the evidence should then be admitted because it went to, and was relevant to, establish, that B would be psychologically adversely impacted by a reintroduction to the father. Again over opposition from counsel for the father, I admitted the affidavit into evidence but on the understanding that the witness had to be produced for cross-examination. Indeed he was.
The formal affidavit was not only incorrectly and inappropriately described as an affidavit by a single expert witness but it contained a statement to which

Dr N had sworn that he had read the various court rules. He conceded he had read some but not all. In cross-examination, I asked Dr N whether he considered himself impartial (as required of a single expert witness) and he candidly admitted that his role was partisan. He was there to assist the mother. The solicitor who drew this affidavit ought understand the responsibilities that fall to legal practitioners. This was inappropriate conduct and warrants criticism.
Dr N added to his report that B was referred because of school behavioural problems. No such evidence came from the mother. It appears B was angry and aggressive at school. Dr N said the mother told him that B worried a lot but that his behaviours were not as serious as they might have been. He did however say that the mother told him of B’s sexualised behaviour towards C. The mother gave no such evidence.
Dr N confirmed he had not been given the details of what had occurred that gave rise to these proceedings. As he said, he only knew there were allegations. He knew nothing of the police or court “material”.
Unfortunately, Dr N said that at the first session with B, he told him he did not need to talk about “what happened with his father”. Dr N obviously did not know what had happened but he conceded that B may have got the opposite impression and that the starting point was a reaffirmation for B that something wrong had happened to him.
Cross-examination of Dr N elicited a picture of B being “okay” about “not” seeing his father.
Startlingly, there was a meeting between B and Dr N after B’s visit to the family consultant. B told Dr N that he worried that the “lady” who interviewed him did not believe what he said about what had happened with his father and felt that she thought he had made it up. Here I have something of a conflict in the evidence. It was the mother’s evidence that after concluding the visit to the family consultant, B did complain to her that he thought he was not believed. The family consultant thought that nothing she said or did could give rise to such an impression. I accept the family consultant’s evidence on that issue.
I am satisfied the mother did talk to B immediately after the family consultant session and it is most likely, she quizzed B about what he had said. It was very obvious from the mother’s evidence that she had not had a comfortable feeling about the family consultant’s interview and it makes sense that she raised the topic with B afterwards in the same way as she conceded that she regularly talked to the children about what had happened to them.
The difficulty with all of this is that to the family consultant, B was unclear about what had happened to him. He relied on his younger sister. The absence of exactly what did happen to B deprived Dr N of the opportunity of reality testing what was supposedly bothering the child. The very starting point of the psychotherapeutic process was the confirmation that something had happened to B and that it was his father’s behaviour that was wrong.
In my view, rather than establish that this evidence was probative of whether or not B would be adversely impacted if he was reintroduced to his father, it showed that Dr N was an unwitting tool of the mother in reinforcing in B’s mind that something wrong had happened to him.
It is important to recognise that B began seeing Dr N because of his behavioural problems. Those were said to be aggression at school and sexualised behaviour towards his younger sister. I find it extraordinary that the mother did not raise any of this as an issue. Had she done so, and Dr N may very well have been the professional vehicle to assist her, inquiries could have been made whether there was a link between that behaviour and the very events that have brought this case before the Court.
Dr N’s evidence did not establish B would be traumatised by a reintroduction to his father. It did raise the question of the mother’s perpetuation in B’s mind that he had been abused. I consider Dr N’s evidence corroborates that of the family consultant (to whom I next turn) that the mother is emotionally abusing the children by her conduct.

The family consultant’s evidence

Ms O is a family consultant whose qualifications lie in psychology. She was appointed to prepare a family report.
It is first important to put the mother’s case about this witness (as both she and her counsel separately put it). From the mother’s perspective, the family consultant was either biased or wrong about a number of factual matters. The mother’s counsel pursued that issue asserting that she was biased but also factually wrong about a number of things. He expressed the view that the report should be rejected and a new one ordered. He spent a full sitting day cross-examining the family consultant about her perception.
At no stage did counsel for the mother challenge the expertise of the witness. So persistent was he in pulling apart words used by the family consultant as to her perception about the mother that I set him a time limit to conclude his cross-examination. That persistence gave rise to a number of examples where inaccurate statements of the facts were put to the witness as the foundation for questions. Remarkably and disturbingly, counsel did not address any of the more significant issues about the children, their statements and the age-appropriateness of them. I shall deal first with the approach that counsel took.
At [35] the family consultant reported the mother’s presentation as “beguiling”. Counsel pressed the family consultant as to her meaning and what parts of the interview supported such a conclusion. The family consultant gave examples all of which were in the report. Whilst there was an argument between counsel and the witness as to whether she got facts wrong and that documents given to her created wrong facts, the family consultant did not shift from her perception that the mother was beguiling. In reality, I had been content at that point to accept that the mother heard what she did from C and has thereafter believed her daughter. Cross-examination by counsel for the mother highlighted the range of emotions that the mother showed to the family consultant when various topics were canvassed. The family consultant described the mother at one point as displaying “uncontained weeping” at times disproportionate to the issues being discussed. Counsel honed in on the number of times, how often and so forth. The clear inference was that the statement was either untrue or an exaggeration but indeed, it was the mother’s own evidence that there were occasions when she cried at the interview. Even if the perception (and that is all it was) of the family consultant was unkind, an exaggeration or the description plainly wrong, the observation does not affect the determination I have to make.
The father’s case which became clearer as the hearing progressed was that he considered the mother had made all this up I consider there was some statement made by C but which may very well have been misconstrued. Thus, the issue of whether there was an unacceptable risk to C and B revolves around whether the statements were made by the children rather than whether the mother made them up. The evidence of the family consultant about her perception of the mother was not directed to her truthfulness or indeed whether she heard C say what she did but rather that the mother would accept there was no other possibility than the one she adamantly believed and constantly impressed upon the children. The language of the family consultant may have been an attempt to describe her perception of the mother’s responsiveness but this cross-examination ignored the reality; the mother would not accept she could be wrong. Counsel’s cross-examination was unnecessary and unhelpful.
Counsel for the mother cross-examined the family consultant about her description of the mother’s “florid displays”. The family consultant agreed there was no need for that description in the report bearing in mind that there were other descriptors. She said the mother did not like challenges to her thinking. Counsel asked for examples and the family consultant did her best to give them. For the reasons already mentioned, these were all perceptions. I consider them reasonable as the family consultant was there at interview and I was not.
Counsel for the mother did not seriously address with the family consultant any issue about the father’s capacity or responsibility as a parent for the purposes of any future contact order. He asked the family consultant no questions about the impact of any such orders on the mother or on the children. He asked nothing of the family consultant about the children’s potential separation anxiety bearing in mind the absence of their father from their lives. Those issues were left to me to ascertain. The family consultant gave evidence that the father would have to hasten slowly. That position was also adopted by the father through his counsel in final address. It is a commendable attitude.
The family consultant refused to move from the position that she adopted and was very defensive. That was understandable because of the aggressive approach taken by counsel for the mother but when she was asked open-ended questions she was interrupted and counsel argued with her. That approach by counsel was inappropriate.
The significance of the family consultant’s evidence is not so much her observations about the mother but rather, just what the children understood had happened to them, how often they had conversations about the sexual abuse subject, what perceptions they continue to hold notwithstanding the passing of time and ultimately whether their fear of the father is so entrenched that it cannot be undone. The family consultant addressed these issues and her evidence on that subject was unchallenged. She suggested in evidence that the father needed counselling to deal with the issue of how to cope with the children’s perceptions. She suggested that an expert such as Dr D or her nominee, would need to reintroduce the children to the father on the basis that there was no logical reason, if there was a finding of no unacceptable risk, for normal sorts of relationships to be developed. The family consultant was under no misapprehension of the difficulties that lay ahead.
There is no doubt that the family consultant formed the view that the mother was psychologically abusing these children. I conclude that the mother is perpetuating something that should have been sorted out a long time ago in circumstances where if some reality checking had been undertaken, this relationship between father and children might have been extant.

Conclusion concerning unacceptable risk

For the reasons that I have already set out, I do not find there is any unacceptable risk of harm of any nature to these children whilst in the care of the father.

Are there other issues?

Consequent upon the finding of no unacceptable risk, the dispute turns to the question of what time should be had between the children and their father but also the vexed issue of equal shared parental responsibility.
The mother’s evidence about the father’s capacity as a parent was confusing. She criticised him for a number of things:
·When B was a month old and she was holding him, she asked could she watch something on the television other than what the father was watching but he refused. Curiously (perhaps churlishly) she then stood in front of the television and the father then pushed her away. The behaviour of neither parent could be excusable but it was the mother who described this as family violence; and
·The father called her derogatory names and complained that she nagged him.
She then said that the father was “occasionally aggressive during sex” and she “never felt safe around” him and made sure that she was in a position where she could remove herself. This affidavit evidence did not mention the consensual sexual incident only a week before the allegations of C. According to what the mother told the family consultant, she was disappointed that the father had not met her expectations of the relationship. She told the Court that as at October 2013, she had anticipated that the father’s time with the children would be unsupervised; indeed, counsel for the father suggested that she was anticipating “normal time” and she seemed to recognise and understand that term because she agreed.
The father was vehement in his denials of these incidents of violence.
The mother applied for an intervention order but the details of its basis seemed to be about the sexual abuse allegations.
I am not satisfied that the mother was in fear of the father arising out of these or any other similar conduct.
As for evidence about the father’s capacity as a parent, the mother’s pointed to an incident where the father had been playing with B who was injured when he fell down some stairs. B suffered bruising and was checked by the doctor but the “progress notes” apparently printed off a computer by someone and not otherwise formally identified, said “came off bike last night when dsd (sic) was playing rough”. The word “reassure” appears from which the inference could be drawn that the doctor said there was no significant issue of concern.
Another incident was described by the mother as occurring in rough play. The mother pointed to a series of cryptic medical notes attached to her affidavit and wanted the Court to interpret them. I interpret the notes as saying that B had a “pulled elbow” but I have no idea what that means. The notes referred to pain in the arm “after lifted up by father with hand”. The doctor observed no “swelling/bruises of r wrist/elbow, good perfusion and normal sensation”. It is inappropriate for that sort of statement to be used to establish risk of physical harm to a child based on a vague assertion that the father was engaged in “rough play”.

These were examples of a legal practitioner taking a short cut with important evidence (if that is what it was intended to be) in circumstances where it must have been known that these were controversial issues.
Statements were made by the mother that the father was not “hands on” but whatever that meant, she then said that he would change nappies and as has been seen above, she left the children in his care on the night of the allegations arising. There, the father showered the children and got them to bed.
Much was said about the father’s distraction in playing cricket and consuming alcohol but little assisted the Court as to what impact that had on the relationship between the father and the children. The objective evidence shows that after the exclusion of the father from the home, B was said to be missing him.
Doing the best I can, the relationship between the father and the children has to be reconstructed.

The paternal grandmother

Ms P is the paternal grandmother. Unsurprisingly, she supported the father. She said the mother made visits for her as “difficult as she could”. That certainly conflicts with the mother’s evidence that the grandparents did not make contact. Ms P gave evidence and was cross-examined. She conceded that there were periods of time where there was a delay in response to the mother’s email contact caused by matters in her own life. She said she was “blocked” on Facebook. The focus of cross-examination by counsel for the mother was that the grandmother’s complaint was ill founded. Even if there was some justification for that view, the more important question was the focus on what occurred when the visit did happen.
Ms P said that when visits occurred, the maternal grandmother was present and supervised at all times. When birthday presents were sent, they were returned unopened.
Ms P told the Court that the time she was allocated was limited but it was clearly uncomfortable in any event because of the presence of the supervisor.

It was hard to get a sense of why it was necessary.
Importantly, Ms P was well acquainted with the allegations against her son and said that she would cooperate in respect of any reconstruction of the relationship between her son and the children and watch carefully to ensure that nothing untoward happened. Nothing was put to Ms P to indicate that she was not an appropriate person to be around the grandchildren.
Other affidavits by relatives of the father had been filed but were not relied upon.

Final addresses

The Independent Children’s Lawyer submitted that orders should be made for Dr D to be engaged to assist in the reintroduction of the children to the father and that there then be a three month loose supervision of the father’s time by the paternal grandmother or his sister and thereafter, there be fortnightly daytime contact. It was submitted that after nine months, the father’s time should begin overnight.
The position of the Independent Children’s Lawyer was predicated on the basis of an unequivocal finding that there was no unacceptable risk of harm to the children in the father’s care. In my view, the foundation for the position had substance.

The father’s position

The father’s position was that he would do whatever that was necessary to get the contact relationship with his children going. He proposed the same introduction process as suggested by the Independent Children’s Lawyer but otherwise wanted to quickly go to overnight time. Having said that, counsel for the father acknowledged that his client had to hasten slowly. He needed to rebuild the relationship with the children but also protect himself not so much against accusations but of not appropriately handling statements by the children which I am now quite satisfied have been influenced by and reinforced by the mother.
It goes without saying that counsel for the father urged the Court to find that there was no unacceptable risk.

The mother’s position

Counsel for the mother began his final address by indicating that his client adopted the position of the Independent Children’s Lawyer save that where there was a suggestion of nine months lead-in time before overnight contact, she wanted to go to 12 months. I queried why there was a difference and he was unable to indicate. More importantly, it was a curious position to start a final address because the mother’s position was still that there should be a finding of no time between the father and the children on the basis that there was an unacceptable risk. When I raised that subject, counsel reverted to his client’s instructions. Indeed, throughout his final address, counsel constantly reverted to the mother for instructions. That was unusual as this was supposed to be an address in relation to the law and the facts arising out of the evidence.
I questioned counsel about what would occur if there was a finding of unacceptable risk. I was alluding to the fact that a no contact order was one option but there were others such as supervised time. Counsel responded to say that he had no position to put other than that there be no contact at all.
In the discussions that followed in what might be described as a false start, counsel said that if the Court made the finding that there was no unacceptable risk, the time between the father and the children should be “strictly supervised” by the paternal grandmother. Curiously however, when Ms P gave evidence, none of this area was probed by counsel for the mother. In final address, counsel submitted that his instructions were that the first period should be for one hour facilitated by Dr D, then two hours for two months, three hours for three months and then four hours for six months. He said that the mother’s position was that after two years of day time contact, it could increase to overnight providing that it was at the father’s sister’s home and supervised by the father’s sister. Having regard to the way in which the final submission began, this looked remarkably like it was being made up on the run. No logic was used as to why the respective periods of build up were necessary nor more importantly, if there was no unacceptable risk, why the time had to be strictly supervised.
I appreciate very much that these sorts of concepts were being put by counsel on instructions but he failed to address the issue of how they could be justified on the basis of the evidence before the Court bearing in mind the likelihood of a finding of no unacceptable risk. I had flagged that before he began his address.
Counsel for the mother suggested that once time went to overnight, it should be limited initially to conclude at 12 noon on the second day and ultimately after six months, conclude at 5.00pm. There was clearly no method in this structure. Despite that, I asked what was to happen beyond that build up period, and counsel said that the mother could not “instruct him what should happened beyond that time”.
Discussion then ensued about holidays, Mother’s Day, Father’s Day and Christmas period. To show what appeared to be a complete state of confusion, counsel’s first suggestion was that there should be three hours on Christmas Day but after discussion about a number of factors including travel, counsel proffered that it should be between 10.00am and 5.00pm on Christmas Day and for a similar period in the following year but on Boxing Day.
It was during the final address that counsel told me that the mother had learned from my discussion with her in the witness box about the Court’s primary role to address the issue of unacceptable risk rather than pursuing specific findings of guilt even though that was possible. It struck me that none of that had been explained to the mother before this case began notwithstanding that proceedings had been extant for two years.
When I asked counsel to turn to the legislative pathway including the question of the presumption of equal shared parental responsibility, he appeared unable to do so and I had to direct his attention to the specific provisions of what is sometimes called the legislative pathway.
Counsel for the mother submitted that even if the Court found that there was no unacceptable risk, it could still find that there was a risk. When asked to provide authorities as to how the Court could deal with such a matter, all he could refer to was the High Court’s decisions in M and M and Briginshaw (supra). No authority of the Full Court of this Court was mentioned.
It was difficult to get a sense of whether counsel was simply not addressing the issues arising out of the evidence or whether he was simply following instructions. To the extent that it was the latter, he did not address any of the issues that I have earlier mentioned about how the evidence may not have supported the position adopted by the mother. It was this approach that again highlighted the observation of the family consultant that the mother is “beguiling”. If indeed counsel’s hands were tied and he was bound only to deal in final address with his instructions (which I have great difficulty in accepting) it would highlight and support the conclusion of the family consultant that the mother was beguiling. “Beguiling” has a variety of meanings including deceiving and misleading but also the ability to charm and thereby divert attention. If what counsel was doing was entirely on instructions, the mother was using him to divert attention from the paucity of evidence and endeavouring to say that if the facts supported a risk, albeit it was not an unacceptable one, the time between the father and the children still had to be severely restricted. All of that was still focusing on the question of the sexual abuse issue rather than, as I would have expected, some focus on the issue of how a relationship between the father and the children could be formed bearing in mind what they had been told by the mother and the fact that they had not seen their father for over two years.
To the extent that counsel was not prepared to address the issues required by Part VII of the Act, (as it certainly appeared), he was unhelpful. I shall shortly address the questions in s 61DA to which I have drawn his attention. In a final address, the legislative pathway requires consideration of time once the question of equal shared parental responsibility is determined. All of the matters to which I have just referred about the build up of time in the event of no finding of unacceptable risk, would have to be dealt with along that pathway. Counsel failed to address any of those issues adequately or responsibly.
There is no basis in this case for a finding of unacceptable risk of harm to these children in the care of the father. That being the case, the question of how the legislation impacts on any future relationship is critical. No serious attempt was made by the mother to address those issues leaving the Court in a position where it had to work out most things without that assistance. I have taken into account that it was difficult for the mother to address any of those issues personally because she emphatically believed that the sexual abuse had occurred and that on any view, there should be no contact between the father and the children. Based on the evidence and the matters that follow arising from the legislative pathway, the mother’s position must be rejected. There is therefore much more focus on the positions adopted by the father and the Independent Children’s Lawyer. The father’s position was cautious and in my view, necessarily so bearing in mind the assistance that will be required from Dr D or some other expert.

Other orders

In the orders, I propose to make no specific time for Father’s Day, Mother’s Day or birthdays assuming that the parties can make those arrangements between themselves. For the sake of clarity, I do not propose to make orders of the general nature set out in paragraph 2.6 and thereafter in the proposed final submissions as they are incidents of equal shared parental responsibility.
I also do not propose to make orders of an injunctive nature other than as set out in these orders as there is not sufficient evidence to justify the exercise of that discretion.

Parental responsibility

Both parents have parental responsibility for C and B (s 61C). That is, each has all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B). That remains until altered by a court. Here, the mother seeks sole parental responsibility (albeit on the basis that there was to be no future contact between the father and the children) whilst the father (somewhat optimistically) sought equal shared parental responsibility. In final address, counsel for the father agreed that it would take time for any communication to occur if it occurred at all. Decisions have to be made about these children and in my view, the most pressing issues are education and health. In respect of the former, the mother has made, and no doubt, will make decisions and the father seems not troubled. In respect of the latter, decisions were made by the mother inappropriately to have the children seen by professionals without involvement of the father. I consider that should not happen again and the sensible solution is that both parents have all other responsibilities and make decisions jointly no matter how difficult their communication relationship is.
A court in making a parenting order must apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility.
The statutory presumption is rebuttable in two circumstances, s 61DA(2) and

s 61DA(4). In respect of the former, there is no evidence to justify that non-application of the presumption. In respect of the latter, the Court needs to examine the best interests’ principles which I shall turn to below. Having given thought to those matters, I would not rebut the presumption because although there will be difficulties with communication, attempts have not been made. Until the final cessation of contact, the parties communicated well. That leads to a consideration of s 65DAA and the sharing of time.
Before dealing that, I observe that there is a clear distinction between day to day decisions for children and what has been defined as decisions about “major long-term issues”. Little attention was paid to that dichotomy in these proceedings but as the children will be shared in terms of time, I see no reason why the father should not have legal responsibilities and duties as well as authority if one considers the definition of parental responsibility. Major long term decisions are different because they require much more planning and consultation between parents which will be difficult (but not impossible) here.
“Major long-term issues” as a concept is defined in s 4 of the Act:
a)Major long-term issues ", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)      the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)      the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
As the presumption of equal shared parental responsibility is not rebutted, consultation and genuine effort to reach a decision are required by s 65DAC but only in respect of “major long-term issues”.
Sole parental responsibility as sought by the mother would mean a complete exclusion of the father (as indeed she desired) but the only area where I consider s 65DAC cannot easily be met and which might cause trouble for these children lies in respect of education. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
In the circumstances, as I consider these children might be adversely affected over the education issue but none other, I propose to make an order that the mother make decisions about both current and future education but that she be obliged to notify the father about those decisions.
While the rebuttal of the presumption should not occur here, because there is not sufficient evidence to say that it is not in the children’s best interests for their parents to have equal shared parental responsibility, such a consequential order leads to s 65DAA and that is determinative of time. Here however, the father neither seeks equal time nor what could (for some time) be seen as significant and substantial time. This issue was not addressed by the mother but the reality is that the father is simply seeking limited time. Section 65DAA is therefore an unnecessary distraction because it cannot be in the children’s best interests for an order to be contemplated which the father does not seek.

Best Interests’ considerations

The mandatory set of considerations contained in s 60CC guide how a court determines what is in a child’s best interests. In effect, that section provides a checklist but ultimately, there should not be slavish devotion to that list.

Section 60CC (3)(m) provides that in determining what is in a child’s best interests, the Court shall take into account:
Any other fact or circumstance that the Court considers relevant.
No one particular fact or factor (apart from the delineation of primary and additional considerations) carries more weight than another. That is particularly relevant here where on an examination of the various factors in s 60CC(3), it is difficult to make findings when the father has been completely excluded from the substantial portion of these two children’s lives.

Section 60CC(3)(m) enables the Court to consider as part of determining best interests, how to build the parent/child relationship factoring in the father’s exclusion to date. It provides an avenue for the Court to consider as part of those best interest principles how to deal with the intensely held views of the mother that there should be no such future relationship. The solution must lie in therapeutic counselling but that must be voluntary.
In essence, the Court’s powers are discretionary and wide but so is the nature of the inquiry that the Court can make as a result of s 60CC(3)(m).
The main guiding principle as to what is to be attempted to be achieved can be seen in the objects and principles in s 60B. These children have not had the benefit of the father having a meaningful part in their lives nor of him providing adequate and proper parenting as would be expected of most parents. He has not been able to fulfil any of the responsibilities of parenting because of the exclusions but also because of the intervention orders that have named the children as protected parties. Those orders provide the exception that the father can do anything permitted by a parenting order which overcomes the necessity in this case to consider s 68P of the Act.
Thus, even absent determinations of many of the s 60CC factors, the Court should still be guided by s 60B aspirations.
Of the two primary considerations, the main focus is on protection of children from harm. In this case, I am satisfied there is no basis for concern about harm of a sexual or physical nature. The concern is how to reintroduce the father into the lives of the children without them suffering psychologically bearing in mind what they have been constantly told and what has been reinforced by the strategies of the psychologist at least in the case of B. In my view, the evidence of the Family Consultant solves that problem by having the children reassured that there is no risk and that their father will be a significant part of their lives. That said, the Family Consultant expressed concern that the mother, by her persistent regurgitation of the sexual abuse allegations and statements that the father’s behaviour was wrong, has been psychologically abusing them. I do not consider it appropriate that the Court direct the mother to seek assistance because she must want to change. I accept she will not readily accept the findings I have made even though she says that she will accept any orders. The children will be exposed to two different and confusing pictures unless she accepts that the Court finds that the children have the absolute right to have their father in their lives.
It is important to observe that s 60CC(2) speaks of the benefit of children having a meaningful relationship. It is but one matter to be taken into account rather than an aspiration. As the Full Court in Marsden and Winch (No. 3) [2007] FamCA 1364 (Warnick & Thackray JJ at par 77) held that whilst this primary consideration:
… should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…” it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate...
Counsel for the father was openly critical of the mother accusing her of having “concocted” the allegations and the Family Consultant was critical of the mother for her performance in interview which led to doubts about her sincerity. Much was made of the Family Consultant’s view that the mother was “beguiling” and indeed, I can well understand how that perception was formed. But what cannot be ignored is that the mother is the primary attachment figure for these children and they are dependent upon her. The father cannot afford to destabilise that. It is very unfortunate that there is no current relationship between the father and the children. Section 60CC(3)(b) is an indication that the Court is expected to look at those relationships to see whether orders can be made to strengthen not damage them.
Another consideration is the capacity of each of the parents to provide for the children’s emotional and intellectual needs and their respective attitudes to the children and to the responsibilities of parenthood (s 60CC(3)(f) and (i)). The father has made no such contribution and could not do so. He was criticised for simply having accepted his fate of being excluded from the lives of the children but even if he had brought an application, it is hard to see how it would have been productive. The mother did not comply with the requirements to register for the contact centre. Contrary to her assertions, I accept she did not permit the Family Consultant to ascertain how the children would have reacted on being reintroduced to their father. Her very vocal position as articulated by her counsel was that there was to be no contact even under supervision. In my view, these dogged attitudes which I am satisfied have been harmful to the children, indicate poor parenting responsibility.
Nothing in the evidence indicated that the father could not provide for the children’s needs but I also accept the view of the Family Consultant that he needs to obtain professional help as to how to have the relationship constructed and to hasten carefully.
Section 60CC(3)(d) directs the Court to consider the likely effect of changes in the children’s “circumstances” if orders were made. As I have already observed, a position of simple reintroduction to the person whom they understand as inherently bad, will be confusing for them but I also consider that it may affect their relationship with their mother. They may begin to question why they have been led to believe what they have as indicated by what they said to the Family Consultant. The parents need to be giving the same message and the best way for that to occur is for the expert suggested by the Family Consultant to impart those details.
All of these things are the rights of the children not those of the parents. The parents have the obligations to protect their children and while the mother may maintain that she has done so, I accept the evidence of the Family Consultant that the opposite has occurred. The attendances of B upon Dr N are indicative of the mother reinforcing in B’s mind that something bad has happened and that his father was the cause. Had Dr N approached the matter objectively, some reality testing may have made B’s life in being reintroduced to his father much easier when the Court has found there is no such risk of harm.
Section 60CC(3)(a) refers, as a consideration, to the Court taking into account any views of a child depending upon maturity and level of understanding. This provision is far wider than just what children say. Their views, as distinct from their wishes, encompass their feelings. Here, the overt reaction of the children as expressed to the Family Consultant was that they did not want to have anything to do with the person whom they understood had done bad things. Yet, the underlying theme was that they wanted a father. That is interesting because on their view, the mother’s friend or partner is there very often including tucking the children into bed and being affectionate towards them. It was not that person that they seemed to want as their father. That indicates that they do have a desire to have a normal father in their lives.
Section 60CC(3)(j) and (k) are considerations relating to family violence. In respect of the second of those, the Court may draw inferences from a series of stated matters including the nature of the order and the findings of another court. As with other matters in this case, no such details were led in evidence by the mother. Whilst s 60CF requires the court to be provided with details of the order, that has little influence and is of little help unless the requirements of s 60CC(3)(k) are met. That did not happen here. I understand there is a pending application for such an order and because I suspect (and I can do no more) that the application is based on the allegations relating to the sexual abuse, I think a magistrate contemplating such a case might benefit from having a copy of my reasons for this judgment. I am not for a moment endeavouring to influence the outcome of those proceedings but rather to ensure there is not an inability to understand what has happened in this Court. The considerations of s 121 of the Family Law Act along with the authorities such as Harman v Secretary of State for Home Office [1983] 1 AC280 and Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 apply.
This Court takes family violence seriously and the significant feature here is that the Court has had the advantage of seeing the parties to this relationship cross-examined at length. The only allegations of family violence of concern arose out of the matters concerning C and B. The inter-personal relationship of the mother and father was not affected by violence. The affidavit material and oral evidence of the mother was vague and very general of description about matters other than the sexual abuse allegations; had these been issues of substance, one would have expected particularization. In the view of this Court, there could be no foundation for an allegation that the children needed protection from a court order against their father such that it could have any bearing on the determination of this parenting case. I reiterate that the mother was content for the children to have time with the father up until these allegations were made and even thereafter, the mother came to an accommodation with the father until they had a dispute over money. That does not indicate to me that the mother was concerned about any risk of harm.
As for other matters, and orders pursuant to Victorian legislation, the relevant courts will make up their own minds.
Family violence itself is defined in s 4AB of the Act. Nothing in the evidence supports a conclusion that it has occurred in this relationship.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable for final orders to be made which would reduce the possibility of further litigation. The mother did not suggest at any time that if a finding was made that there was no unacceptable risk, interim orders should be made to “test the water”. As I have mentioned, her counsel’s final address was a dysfunctional set of proposals that changed as he went along. But what comes out of that is the fact that there was an assumption that, based on the no risk finding, time should occur in line with what the Independent Children’s Lawyer proposed. He then reverted to the supervised position but by the paternal grandmother. Nothing was put to the grandmother indicating that the mother wanted reports and dialogue. Indeed, what was asked was whether, until 2014, she and the mother were “friendly”. I infer that the mother saw that she did not need to worry and that there would be a smooth transition to unsupervised time. That being so, interim orders are not necessary and the Court should presume that these parties and the children need a permanent end to this sorry saga.
In my view, the orders that are set out at the commencement of these reasons are in the best interests of the children.

I certify that the preceding Two Hundred and Five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 April 2016.

Associate:

Date: 28 April 2016

[2016] FamCA 272

28 April 2016

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