Bilson & Sarsgaard (No 2)

[2018] FamCA 282

FAMILY COURT OF AUSTRALIA

BILSON & SARSGAARD (NO. 2) [2018] FamCA 282

FAMILY LAW – CHILDREN – with whom the children live – where there are allegations the father sexually abused the youngest child – where there are allegations of neglect by the mother – where after separation the parties entered into consent orders and a parenting plan – where commencing January 2013 the children spent about equal time with each parent – where the allegations of sexual abuse first arose in April 2014 – where the youngest child has made disclosures to her mother, aunt, police and treating practitioners about the father – where the children have been spending supervised time with the father since July 2014 – where the youngest child would be at an unacceptable risk of harm if her time with the father were unsupervised – where it is not in the children’s best interest to be separated from each other – where the children will not be at an unacceptable risk of harm in their mother’s care – where the mother is granted sole parental responsibility – where the children will live with the mother and spend time with the father on a supervised basis

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
M v M (1988) 166 CLR 69
McCall v Clark (2009) FLC 93-405
Vigano v Desmond (2012) FLC 93-509

APPLICANT: Mr Bilson

RESPONDENT: Ms Sarsgaard

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitors

FILE NUMBER: BRC 11169 of 2011

DATE DELIVERED: 2 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE:

30 June 2015,
26, 27, 28 August 2015

24, 25 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hempling

SOLICITOR FOR THE APPLICANT: PAT Law & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Senior Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting Orders are discharged.

2. The children, F, born … 2008, C, born … 2008 and E, born … 2009, live with the mother.

3. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the children’s names and changes to the children’s living arrangements that make it significantly more difficult for them to spend time with their father, in respect of the children, save that, other than in emergency circumstances, the mother shall, prior to making a decision about any such issue:

   (a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

4. The parties shall have equal shared parental responsibility in relation to the issues of the children’s names and changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with their father.

5. The father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in his care.

6. The mother shall have the sole responsibility for making decisions about the children’s day to day care welfare and development whilst they are in her care.

7. The children will spend time and communicate with the father at all times as may be agreed between the parties in writing and, failing agreement each alternate weekend on a supervised basis on either Saturday or Sunday for two (2) hours or such longer time as may be agreed between the parties and accommodated by a private supervisor or a Contact Centre, with such time to be supervised either by a private supervisor agreed between the parties in writing or by a Contact Centre agreed between the parties in writing.

8. In order to facilitate the children spending supervised time with their father:

   (a)the mother shall, within fourteen (14) days of the date of this Order, provide the father with a written list of up to three (3) supervisors and/or Contact Centres which she has identified as suitable to supervise the children’s time with their father; and

   (b)the father shall, within fourteen (14) days of being provided with the list of supervisors referred to above, select a supervisor or Contact Centre to be used to supervise the children’s time with him and advise the mother in writing of his selection; and

   (c)both parties will do all things that are required to ensure that the children’s time with the father commence, under the supervision of the person or Contact Centre selected pursuant to the terms of this Clause, as soon as possible;  and

   (d)the father shall be responsible for the costs of the supervised time.

9. Unless otherwise agreed between the parties in writing, until the arrangements provided for in Clause (8) of this Order are effected, the children’s time with their father shall continue to be supervised by Ms D from G Contact Centre.

10. The children shall communicate with the father by telephone in the period between 6.30 pm and 7.15 pm each Monday and Wednesday and to facilitate this communication either:

    (a)the father shall initiate the telephone call to the children and the mother shall ensure the children are available to receive the telephone call; or

    (b)the father shall initiate Skype communication to the children and the mother shall ensure the children are available to receive this communication.

11. The mother and father shall:

    (a)keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and

    (c)notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and

    (d)inform the other as soon as is reasonably practicable of any medical emergency involving the children;  and

    (e)keep each other informed at all times of the names and addresses of any educational facility at which the children attend; and

    (f)keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the children regularly attend.

12. By this Order, any medical practitioner, health care practitioner or hospital upon whom the children attend is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the children.

13. By this Order, any educational facility at which the children attend is hereby authorised to provide to each party, at that party’s request and cost, all information about the children’s education, progress and participation in school or childcare related activities.

14. The parties shall communicate about significant issues relating to the children via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.

15. Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and each parent shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the children and, failing the third parties’ compliance with such a direction, shall remove the children from that environment immediately.

16. Neither parent shall discuss these proceedings with the children, save for as may occur during any counselling interaction.

17. During the time the children are with either parent, the parent shall:

    (a)respect the privacy of the other parent and not question the children unduly about the personal life of the other parent;  and

    (b)speak of the other parent respectfully.

18. The mother shall ensure that the children receive such therapeutic support as is recommended to her from time to time by Ms P or such other therapist upon whom she attends.

19. The Independent Children’s Lawyer is discharged.

20. All outstanding Applications are dismissed.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11169 of 2011

Mr Bilson

Applicant

And

Ms Sarsgaard

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT[1]

[1]I apologise to the parties for the significant delay in finalising this matter and for the length and detail of these Reasons. I assure them that, in determining the outstanding applications for parenting orders, I have had particular regard to the extensive contemporaneous notes I took during the hearing, extracts of the transcripts of the proceedings, all of the evidence (including the affidavit material and the exhibits), I have reviewed police interviews and other recordings and have had regard to the contents of the parties’ respective summaries of argument, however described and the submissions made on their behalf by their legal representatives. I have taken all of these into account in my determination of the Orders which are in the children’s best interests.

1. The mother was born in Australia in 1968 and is currently 49 years of age. The father was born in the United States of America in 1979 and is currently 38 years of age. They met when the father travelled to Australia to study. They commenced a relationship in about September 2006 and married in 2007, after which they commenced cohabitation.

2. They have three children together:

   a)F and C, twins born in 2008 – now nearly ten years of age; and

   b)E born in 2009 – now 9 years of age.

3. These children have a half-brother:  Mr H, the mother’s son from a previous relationship, was born in 1998 and lived with the parties and their children during their cohabitation. 

4. The parties separated finally in October 2011 when the mother and the children (then aged nearly three and a half and two and a half respectively) left the shared residence. They stayed in a domestic violence shelter for between 10 days and two weeks before returning to the previously shared home. The mother and children subsequently returned to stay in these premises.

5. It seems agreed between the parties that, for the next two months or thereabouts, the children spent unsupervised time with their father. On the mother’s account, she did not permit them to stay overnight with him because he had moved to live in a share house (and she did not consider it appropriate for the children to spend overnight time there). On the father’s account, he had one child at a time spend overnight time with him for one night each week because he could not accommodate all three of them at once.[2]

   [2]          Affidavit of Ms J filed 23 October 2014 at Annexure “A”, [8.17].

6. On the mother’s account, she initially allowed the father to sleep overnight on the couch at the previously shared home on Saturday night so he could spend time with the children: they could all have dinner together as a family on the Saturday night and breakfast on the Sunday morning.[3] Whilst the father said he could not recall this, he accepts he was allowed into the house to do laundry.

   [3]          Affidavit of Dr K filed 27 January 2015 at Annexure “A”, Appendix 1, p. 9.

7. Whilst resolution of these aspects of the parties’ competing accounts is strictly unnecessary for the determination of those parenting orders which are in the children’s best interests, I am inclined to accept the mother’s recounting of the arrangements which the parties implemented in the immediate aftermath of their separation.  It follows from this that I think it more likely than not that the mother facilitated the children’s interaction with their father, at least at this time.

8. In any event, the informal arrangement whereby the father attended at the mother and children’s home ended in December 2011, when a disagreement between the parties resulted in the mother calling police to the premises. The father accepts the police attended, but disputes the assertion that they physically removed him from the premises while he stood arguing with them; he says, in essence, that he left voluntarily because he had only wanted to stay until his clothes were dry, something which had occurred by the time the police arrived.  Whilst it is strictly unnecessary to resolve the dispute about the disparate recitations of this incident, I again prefer that provided by the mother to that provided by the father and think it more likely than not that the events which preceded the police arrival occurred as she recounts.

9. On about 12 December 2011, the mother filed an Application for Consent Orders and an Application for a Protection Order.[4] A temporary Protection Order (in which the mother was named as the aggrieved and the father as the Respondent) was made on 22 December 2011. It was effective to 9 February 2012;[5] its terms included that the father be of good behaviour towards the mother and not commit domestic violence. 

   [4]          Exhibit 3, pages 105 and 106.

   [5]          Exhibit 3, page 104.

10. On 13 April 2012, Registrar Kane dismissed the Application for Consent Orders because the parties had failed to provide further information requested by the Court.

11. On 27 November 2012, the parties filed a second Application for Consent Orders.

12. On 7 January 2013, the Department of Communities, Child Safety and Disability Services (the Department) received information about the children.[6] This included assertions that E (then not yet four years of age) had used scissors to cut her own hair at her mother’s place; that the father was concerned she may run and fall with the scissors; that, whilst the mother had then put the scissors in a place E could not reach them, it was not known if all scissors were out of the children’s reach; that F (only four years of age) had  left his mother’s place alone and got to a busy road; that the mother later told the father she would install a security door but he did not know if that had occurred and was concerned about the children’s supervision whilst with their mother.

    [6]          Magellan Report dated 15 August 2014.

13. This seems to be the first occasion on which the father reported concerns about the mother’s care of the children to the Department.

Consent Orders issue: 29 January 2013

1. Despite the matters reported to the Department, neither party chose to seek to revoke their consent to the proposed orders and, on 29 January 2013, final consent Orders issued.

2. The January 2013 Order provided, amongst other things, for the parents to have equal shared parental responsibility for major long term decisions relating to the children. Whilst it also provided that the children spend time with each parent as set out in the “attached parenting schedule”, this schedule is not in evidence before me. However, according to the information the parties provided to Dr K (a psychiatrist upon whom they attended for interview on 27 October 2014 for the mother, and 27 November 2014 for the father) the children spent equal or almost equal time with each parent (albeit in a “split week” arrangement: namely, three days/four days, alternating).  As is the case with many other issues in this matter, the parents disagree about what led to this agreed arrangement: the father alleges it was because the mother could not cope with seven consecutive days away from the children, whereas the mother alleges she agreed to the father’s “calendar” because she was frazzled. 

3. Given that each parent agreed to the terms of the January 2013 Order, I consider it unnecessary to attempt to resolve the dispute about their respective motivations in doing so.

4. The January 2013 Order also provided for the children to spend time for half of the school holiday periods with each parent; that the children attend at L School and be at liberty to speak with each parent daily at 6:30 pm. Ancillary orders regulated other aspects of the children’s care whilst with each parent.

5. The January 2013 Order is accompanied by a certification by each party to the effect that “no allegations of or risk of abuse, neglect, or family violence have been made in any document filed/report prepared or document subpoenaed in these proceedings”; and that each party did “not consider that a child concerned in the draft order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence”.

6. This certification is particularly relevant to a consideration of the father’s concerns about the mother’s parenting capacity.

The January 2013 Order is implemented

1. The parties implemented the terms of the January 2013 Order. They also appear to have been able to co-operate about at least some issues associated with the care of the children: for example, they attended a meeting initiated by the boys’ school in March 2013 to discuss some of the difficulties the boys were having settling into school routines, they discussed how information was to be provided to the parents and reached agreement about this issue.[7]

   [7]          Exhibit 3, p.19.

2. However, despite some small shoots of co-operation, it appears that difficulties between the parents remained: for example, it seems the father reported Mr H to the Department in late July 2013 for being abusive towards his siblings and the mother told the Department she was seeking a Protection Order against the father.[8]

   [8]          Magellan Report dated 15 August 2014.

3. Even with these ongoing issues, the parties participated in mediation on 14 January 2014.  They subsequently entered into a Parenting Plan, the terms of which provided that, from 26 January 2014, the children would live with each parent during alternate weeks. They also agreed slight variations to the time the children would spend with each of them over the Christmas period. The Parenting Plan was not registered with the Court because the parents wanted to discuss and review it at the end of Term 1, 2014.

4. It is uncontroversial that the parties implemented the terms of the Parenting Plan in Term 1, 2014.[9] However, such implementation ceased after E made comments to her mother on 11 April 2014, which comments the mother regarded as amounting to disclosures E had been sexually abused by her father.  

   [9] Affidavit of the mother filed 30 May 2014 at [17].

5. Consequently, since this time, the children have lived primarily with their mother and, since about September 2014, have spent supervised time with their father.[10]

   [10]On 24 June 2014 Judge Jarret ordered that the children spend time with the father for two hours each alternate weekend with such time to be supervised at a Contact Centre.

The proposals

1. Speaking broadly, the father (who lives at M Town) proposed[11] that the children live with him and spend only supervised time with the mother each alternate Saturday at a Contact Centre.  He proposed they have telephone communication with the mother each Tuesday and Thursday.  He also proposed that the Court make an order for the parents to have equal shared parental responsibility for the major long term issues relating to the children.

   [11]Amended Case Information document filed 13 March 2015; Outline of Submissions provided 25 September 2015.

2. The mother (who lives at Suburb N) proposed that the children live with her and spend only two hours supervised time with the father each alternate weekend. She also proposed that an order be made according her sole parental responsibility for the major long term issues relating to the children.

3. The Independent Children’s Lawyer proposed[12] that the children live with the mother and spend supervised time with their father each alternate weekend on a Saturday or Sunday, for such time as can be facilitated by the Suburb O Contact Centre.  It is also proposed that the mother have sole parental responsibility for major long term issues relating to the children (with a requirement that she advise the father of the decision to be made, invite his comment and take the same into account before making the final decision); that the orders are explained to the children and that E continue to attend upon Ms P (a psychologist upon who she has attended) as and when directed by her and that F and C also attend for ongoing protective therapy.

   [12]As outlined in a document entitled "Orders Proposed by the Independent Children's Lawyer" handed up on 25 September 2015.

4. The Independent Children’s Lawyer also proposed that a number of relatively “standard” orders are made to restrain the discussion of the proceedings to, or in the presence or hearing of, the children; to restrain each parent from denigrating the other and to require each parent to keep the other appraised of their current residential address, contact telephone number and email address. The mother would also be required to advise the father immediately should any of the children require emergency medical treatment of a life threatening nature and to provide the father with a copy of the children’s school progress reports.

General assessment of credit

1. The father was, generally speaking, something of a difficult witness in that he appeared determined to ensure that he said what he wanted to convey rather than simply confining himself to answering the questions asked of him. I consider that there were certainly occasions on which he attempted to control the process rather than simply participate in it.  In addition, he could not resist attempting to take, and taking, the opportunity to comment adversely about the mother in a manner that was unresponsive to the questions he was being asked: for example, when he accepted the suggestion that he had not been able to control E’s behaviour during a supervised visit, he could not resist asserting that the mother could not control her either when she collected her.

2. I also found the explanations he gave to various experts about the offences  for which he was dealt with in the United States of America to be somewhat inconsistent. In particular, I think it more likely than not that the asserted presence of the dog to explain why the father was still in the yard when the police arrived was something that was developed by the father in response to Mr B’s scepticism about his explanation rather than something which happened at the time, particularly given that there is no mention of the same in the more contemporaneous FF Report. 

3. Further, it appeared he told Ms J – or at least was prepare to allow her to proceed on the basis – that, on occasion where one of the children had smeared faeces on the wall, he cleaned it and any other mess up. However, the accepted fact is that he did not do that because he told the mother he would vomit if he had to clean up the faeces. He also omitted to tell Ms J this latter aspect also.

4. The combination of these matters has persuaded me that I should be circumspect in my consideration of his evidence.

5. I consider that the mother was, generally speaking, an honest witness who gave her evidence to the best of her ability. Whilst there are some differences in her account of the conversation she had in the car with E on 11 April 2014 when regard is had to that contained in her police statement (given 11 April 2014) and her affidavit (filed 30 May 2014) and as recounted to various experts, I am not persuaded that such differences are the result of deliberate actions by the mother: after all, one of the father’s criticisms of her as a parent is that she has failed to retain information provided to her during the numerous parenting courses she has completed and is incapable of (or at least has significant difficulty in) doing so; given this, the fact of some differences in recounting does not seem to me to suggest a lack of veracity as opposed to providing a further example of the manifestation of the very limitation identified by the father.

6. A further manifestation of the difficulties which accompany the mother’s recounting can be seen when regard is had to what she has said about the proximity between the “Q” incident and the conversation in the car: for example, according to her police statement (dated 11 April 2014) the “Q” incident occurred the day before the conversation in the car whereas in her account to Dr K (on 27 October 2014), the “Q” incident occurred about a month before the conversation in the car.  I consider it more likely than not that this discrepancy is the product of confusion rather than deliberate lie.

7. I consider that the mother was also willing to accept that, on occasions, she has not coped with the parenting of the children; I accept her evidence to the effect that she has tried to do her best to cope with their sometimes significant demands. On occasions she has made what, with the benefit of hindsight and proper reflection, have clearly been poor decisions about the manner in which she has sought to manage the boys’ behaviour in particular.

8. To the extent that it is necessary to outline any particular conclusions about the evidence given by the other witnesses in the proceedings, I will do so during my consideration of the same.

The principles

1. In these proceedings, I may, subject to s 61DA[13] and s 65DAB[14] and Division 6 of Part VII of the Family Law Act 1975 (Cth), make such parenting order as I think proper.[15] I have had regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[16] In deciding whether to make a parenting order, the children’s best interests are the paramount consideration.[17] Whether the subject of specific mention or not, I have considered all relevant matters and factors.[18]

   [13]         Presumption of equal shared parental responsibility.

   [14]         Parenting Plans.

   [15] Section 65D of the Act.

   [16] Section 60B of the Act.

   [17] Section 60CA and s 65AA of the Act.

   [18]         Banks v Banks (2015) FLC 93-637 at [49].

The benefit to the children of a meaningful relationship with both parents

1. The preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach:[19] that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents. Of course, an affirmative finding of benefit does not depend simply on there being a lack of danger of physical or psychological harm to the children from time and/or communication with a parent.[20]

   [19]         McCall v Clark (2009) FLC 93-405.

   [20]Vigano v Desmond (2012) FLC 93-509 at [128]-[129] per Bryant CJ, Strickland & Murphy JJ.

2. From separation until mid-April 2014, both parents clearly held the view that all of the children would benefit from the opportunity to spend time and continue to develop a meaningful relationship with both of their parents. So much can be concluded from their entry into the January 2013 Order and the later Parenting Plan and their implementation of an equal time shared parenting regime until about mid-April 2014.

3. I accept the evidence from Ms D (the supervisor of the children’s time with their father after the allegations were made in mid-April 2014) about the father’s interactions with the children during those visits. The children have clearly enjoyed spending time with him and he has generally interacted with them in a caring, attentive and loving manner. Given this and subject to a consideration of whether time with the father would place the children at an unacceptable risk of harm, I conclude that the children will likely benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with their father.

4. I did not understand the father to suggest that the children would not benefit from the opportunity to continue to develop and maintain a meaningful relationship with their mother provided that such opportunity occurred in a manner designed to protect them from the unacceptable risk of neglect to which he asserts they are exposed whilst in her care. Given this, and subject to a consideration of whether time with the mother would place the children at an unacceptable risk of harm – via neglect in particular – I conclude that the children will likely benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with their mother. 

5. As each parent’s case now involves assertions that the children are at an unacceptable risk of harm if they spend unsupervised time with the other, I must consider whether the established benefit to the children in having a meaningful relationship with each parent needs to give way to the imperative of protecting them from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either of their parents.

6. It is, I think, logical that I first determine whether the children are at an unacceptable risk of harm if they spend unsupervised time with the father: given the nature of the allegations of sexual abuse, I consider that, if I am persuaded that he represents a risk of sexually abusing E, his case that all children live primarily with him cannot reasonably succeed, even if his contentions about the mother’s asserted neglect and relative impairment of parental capacity are made out.

7. In undertaking this exercise, I, of course, immediately acknowledge that the resolution of allegations of sexual abuse (and other forms of abuse) is “subservient and ancillary” to this Court’s determination of that parenting order which is in each of the children’s best interests.[21] However, a consideration of such allegations – and those asserting physical harm and neglect – is clearly necessary when the legislation imposes an imperative of protecting children from harm.[22]

   [21]         M v M (1988) 166 CLR 69.

   [22]         Family Law Act 1975 (Cth) s 60CC(2)(b); s 60CC(ZA).

Will unsupervised time with the father expose the children to an unacceptable risk of harm?

1. The mother does not allege that the father has sexually abused the boys. Her contention that E is at an unacceptable risk of sexual abuse if she spends unsupervised time with the father rests upon a consideration of a combination of events – including the mother’s understanding of the father’s  previous offences committed in the United States of America – and asserted comments by E. In particular, the mother relies upon what she describes as “disclosures” by E that the father sexually abused her.

2. That is, she contends that consideration of the combination of:

   a)the disclosures by E to her, the police (during the interview), her aunt (Ms R Sarsgaard) and Ms P; and

   b)the child’s comments to others, including the supervisor (Ms D); and

   c)the fact of the father’s previous convictions for offences involving at least what is asserted to be an aspect of sexual behaviour (one of which was said to include or involve a child),

   is such as to persuade of a conclusion that the father represents an unacceptable risk to E.

3. If such conclusion is reached, it is also asserted that the boys will be at an unacceptable risk of psychological harm if they spend unsupervised time with the father because this would indicate to them that there is nothing wrong with his alleged behaviour toward E; alternatively, it is submitted that it is not in any of the children’s best interests for their time with their father to be differentiated – because of the likely impact on the sibling relationships of any care regime whereby the boys spend unsupervised time with their father and E does not.

4. In assessing all of the relevant matters, it is, as always, necessary to have regard to events which predated and surrounded them.

5. It is, I think, pertinent to record that, during his cross-examination, the father accepted that, if what the mother reported E as having said to her in the car on 11 April 2014 had been said to him about another person, he would have been so concerned about such comments as to make whatever inquiries were necessary to have them investigated: that is, he did not criticise the mother for going to the police following the reported comments because that was what he would have done if E had made those comments to him about someone else.

The conversation in the car on 11 April 2014

1. The mother says that, whilst she and the children were in the car on 11 April 2014, E made statements to her which resulted in her contacting the Department. The Department told her that, because the children were in her care, they did not consider them to be in need of protection and referred her to the Queensland Police Service. She took E to the police that day. Whilst the mother gave a statement, E was not interviewed because of the lateness of the hour.

2. The mother reports to police in initial interview on 11 April 2014 that the incident with E happened the day before on 10 April 2014.[23]  However, according to her 11 April 2014 police statement, the following occurred earlier that day: at about 2.00 pm, she was driving in the car with the three children: they were noisy; she said to them: “Why are you so naughty for me? Sometimes, I think you love Daddy more than you love me”; E replied: “No I hate Daddy, he’s like [Q]”; the mother asked: “Why is Daddy like [Q]?”; E said: “Because he pulled my pants down”; when the mother asked why he did that, the boys said “Daddy was getting [E] undressed for a bath”; E said: “No, Daddy did the noodle thing but not on my butt cheeks, on where I pull up my pants”; she then said: “Don’t tell Daddy”; when the mother asked why not, E said: “Because Daddy would get really angry and want to kill you”.[24]

   [23]         Affidavit of the mother filed 30 May 2014, Annexure “VAS4”.

   [24]         Affidavit of the mother filed 30 May2014, Annexure “VAS4”.

3. During her cross-examination, the mother said it was unusual for E to say “No, I hate Daddy”:  she had never heard her say that before then and did not think she had ever heard the child make such a comment after that day. I accept the mother’s evidence in this respect. That she gave it certainly contradicts the father’s overarching assertion that she has sought to remove him from the children’s lives:  after all, how easy would it have been (in the context of her case and the allegations) for the mother to assert that, after 11 April 2014, E frequently told her that she hated her father?

4. The mother gave evidence about what she says happened in the car on 11 April 2014 in an affidavit filed on 30 May 2014. This account includes the following:[25]  

   (22) On 11th April 2014, I was driving with my children in the car and they were being very noisy and arguing. I commented that I felt they sometimes behaved better for Daddy. [E] stated, “No, I hate Daddy”.

   (23) I had no idea why she would say that so I asked her what she meant and she responded, “Daddy did the noodle thing, but not on my butt cheeks, on where I pull up my pants.” I know that [E] uses the word “noodle” for penis.

   (24)[E] stated to me that Daddy had “hurt” her but “only at the end” and refused to tell me what that meant because she said it was “One hundred rude”. She asked me not to tell Daddy that she had told me about this because “Daddy will get angry and want to kill you.”

   [25]         Affidavit of the mother filed 30 May 2014 at [22] – [24].

5. It is immediately apparent that there is a difference between the recounting provided by the mother to the police on 11 April 2014 and that sworn to by her in her May 2014 affidavit. The latter account contains the assertion that E said that the father had hurt her, but only at the end and that it was “one hundred rude”: all matters missing from the account first provided to police on 11 April 2014.  However, the recording made by the mother of her conversation with E on 12 April 2014 (after the child’s first police interview earlier that day) contains the mother telling E that she understood that the child had said that there was “a bit that hurt you” but that she had not told the mother what that was.  That it does suggests to me that it is likely that the account contained in the mother’s affidavit incorporates the comments the mother says E made to her on 11 April 2014 in the car and on 12 April 2014 when she spoke to her that night.

6. The affidavit account also fails to refer to Q. The relevance of “Q” and the term “the noodle thing” is that there was a prior incident between E and her seven year old male cousin, Q. Whilst the mother believes the behaviour occurred only once, E told Ms J (the author of the Family Report) that it happened more than once.

“Daddy’s like Q”/the “noodle thing”

1. It seems accepted that, at some time before 11 April 2014, seven year old Q (who it is said has previously been sexually abused by another child) pulled down E’s pants and encouraged her brother F to do the same. He then put his “noodle” (penis) on and/or rubbed his “noodle” (penis) against her buttocks. This occurred when all of the children were being cared for at their maternal grandmother’s home.

2. It is not suggested that either F or C engaged in this behaviour. Further, it is clear the mother only learned about what had happened to Q after she was told about his behaviour toward E that day; it seemed Q’s mother (the mother’s sister) told her that Q had been subjected to a similar thing by an older child.

3. There are various accounts of the date on which Q behaved as outlined above toward E.  According to the information provided by the mother to Dr K on 27 October 2014, it happened about a month before the 11 April 2014 conversation in the car; according to the information the mother gave Ms J at interview in September 2014, it happened about a month prior to E making the disclosures;[26] according to the information recorded in Departmental documents (which seems more likely than not to have been provided by the police after the mother’s attendance on them) it occurred a “few days” before 11 April 2014; according to the mother’s police statement (dated 11 April 2014), it happened on 10 April 2014 (that is, the day before the conversation in the car).

   [26]         Affidavit of Ms J filed 23 October 2014 at Annexure “A”, [5.21].

4. Having regard to the mother’s evidence about this issue during her cross-examination and the contemporaneous nature of her police statement, I consider it much more likely than not that the incident between Q and E occurred on 10 April 2014. I also consider it much more likely than not that, when E told her mother on 11 April 2014 that her father was like Q and did “the noodle thing”, the mother assumed from this comment that E meant that the father had put or rubbed his “noodle” (penis) on her bottom; any comment by E that it was not on her “butt cheeks, on where I pull up my pants”, seems likely to have resulted in the mother concluding that E meant that her father had put his penis on or against her genitals.

1. I accept the mother’s evidence during cross-examination that, whilst she was then “a bit fuzzy” in her recall about what was said in the car on 11 April 2014, she clearly remembered E saying three statements: “ No, I hate Daddy”; “Daddy is like Q”; when asked why the father was like Q: “He did the noodle thing”.

2. As I understood her evidence, Ms R Sarsgaard (Q’s mother) said that, after the maternal grandmother told her that she had walked in on the children in a room, she spoke to each of them to try and find out what had happened.  As I understand her evidence, included within the matters E told her was that Q put his noodle on her.  The mother said she had spoken with the children that day: she told them that what happened was not something they should be doing and that she did not ever want to hear about it again.

3. The maternal grandmother said she did not speak directly to E about what happened but left that to the children’s mother. She said that they spoke to the children about unacceptable behaviour and the adults made sure the children knew that such behaviour was not accepted. I accept her evidence in this respect.  Whilst the maternal grandmother said that she had not spoken to E about what happened, the mother told Ms J that E had told her mother that Q had pulled down her pants and “rubbed his noodle near her butt cheeks.”[27]

   [27]         Affidavit of Ms J filed 23 October 2014 at Annexure “A”, [5.21].

4. During her cross-examination, the mother effectively agreed with the proposition that the fact the incident involving Q occurred the day before the car conversation “probably put something in” E’s mind when she spoke as the mother reports.  However, I am not necessarily persuaded that I can conclude that this is more likely than not.

E is interviewed by Senior Constable S: 12 April 2014[28]

[28]         Exhibit 1 and Exhibit 18.

1. As advised by police, the mother took E (who had just turned five years of age) to be interviewed at the Suburb O Police Station on 12 April 2014. She was interviewed by officer S for approximately two and a half hours. During the interview E said:

   a)the father had touched her girl parts with his “noodle”:  when questioned she was able to clarify that boys had “noodles” (that is what they went to the toilet with);  and

   b)girls did not have “noodles” (they had “girl parts” which they used to go to the toilet); 

   c)that “dad is not allowed to do those things”;   and

   d)that she did not want to say it because one of them is a bad thing;  and

   e)that it was a rude and grown up thing: and

   f)that she was too scared to say it.  

2. The transcript of E’s interview is not entirely accurate but is a helpful guide.[29]  As well as the comments outlined above, it seems to me that E on occasion corrected the officer when he misstated to her something she had just told him. When asked to tell him what she had come to talk to him about, she said that she did not really know she was going to talk to people; she said she had two houses because her parents live away from each other.  This was accurate.

   [29]         I have, of course, had regard to the recording of the interview itself.

3. She also said that a lie is something that is not real (for example, saying that there are not any bees in the zoo when there are bees because she had seen it). She said her mother and father did not really like each other.

4. When the officer told her he had heard that she played “the noodle game”, she said:  “It’s not a game”. When he asked her to tell him all about it, she said she did not want to: “It’s not a game”. She asked the officer, “Why did mummy say it’s a game but it is not” (the game idea having been introduced by the officer when he told her that he had heard she had played a noodle game with her “Daddy”).  When the officer asked her to tell him about the noodle that is not a game, she said:  “I can’t, it’s a bad thing, but it was bad words”. She said that “Dad wasn’t allowed to do these things”.

5. When asked to tell him more about that, she said: “But [you] don’t have to say it”; she later said she did not really like chatting with people.  She said:  “Mum said Daddy wasn’t allowed to do those things”. When asked to tell about what are “those things”, she said she did not want to say it – but one of them is a bad thing.

6. She told the officer to stop saying it was a noodle game; when he asked her to tell him about the noodle, she said she did not want to talk about it. When asked about what the noodle is, she said:  “Boys have it, even grown-ups have it”: when the officer told her he did not know what it was, she asked him if he was “silly”. When he said he thought a noodle was food/something to eat, she told him “It’s not like noodle food but is part of your body, but girls don’t have it and boys have it”.

7. When she was asked to tell him about things, she said these are actually rude, that she was too scared to say it, just like she was scared to say it to her mother (after which she hid under a blanket). When she was asked why she was scared to say it to the officer, she said: “It’s because it’s rude things in it” and she did not want to do rude things.  When she was asked to tell the officer about the rude things, she said:  “Why do I have to?” When the officer asked her again to tell him what the rude thing was because he wanted to understand what she was talking about, she said:  “Oh why do I have to say [it]; I don’t wanna say it”. When he asked her if she could tell him about the rude thing she was talking about, she said:  “I was talking about,  it’s about Daddy” … “and me and he doing [?] it to me”. She said: “I don’t wanna say it, it’s a grown up thing.  And I don’t really like it, I don’t really like him doing the grown up thing because I say stop and he [doesn’t?] stop”.

8. When asked to talk about what “the thing” is, she said it was only one thing and “I don’t wanna say [the] one thing”. She said she did not want to say it and was too scared to. When she was asked why she was too scared, she said she just did not want to and did not really want to tell it. She then said:  “Well okay if I have to … he put, oh I don’t want to say it, if only he hadn’t have done that.  I don’t … but mummy shouldn’t tell you in the first place so I can tell you”.

9. When asked what the mother should not have told the officer in the first place, E said:  “Only one part about the noodle thing.  She shouldn’t tell you about it.  But I don’t wanna say the wrong thing about the noodle thing.  But this is the only last thing about the noodle thing .. I don’t wanna say because I’m scared”.

10. When asked why she was scared, she said: “Because maybe you will be cross at me”.  After the officer promised he would not be cranky at her, E said she forgot “it”; then that she remembered “it” and she then said:  “Umm he put his, um, um, I don’t really like that Mummy said that I have to tell you about all the things that Daddy did to me” … “to tell you the thing that Daddy said to me, that Daddy did to me, Daddy put um his, I don’t want to say it.  Okay.  Daddy put his, Daddy put his, I don’t want to say it.”

11. When she was asked to tell why she did not want to say it, she said:  “Um because I’m too scared that I have to say it to everyone”. When she was told that she did not have to say it to everyone, she said:  “Yes because Mummy is going to tell everyone”. When asked what her mother was going to tell everyone, she said:  “Mum is going to tell everyone about the noodle things and Dad put his noodle in my girl parts and didn’t really like it.”

12. When the officer told E that she had said that “Dad put his noodle on her girl parts”, he also asked her to tell him what she meant by her “girl parts”. She pointed to her “private parts” and said:  “Why wouldn’t you know what I mean?  When you go to the toilet and pull off your undies and some, um, your boy parts, the noodle is your boy parts … that’s what I was talking about”. She told the officer that if he needed to go to the toilet the wee goes out of his noodle; when he asked her if her “girl parts” were where she pulled down her undies to go to the toilet, she said:  “Yeah and now umm we stop talking”.

13. When the officer asked E if she had seen “Dad’s noodle” before, she said:  “No”. 

14. She later said that happened in “Dad’s house; in the bedroom”; that only she and her father were in the bedroom. When asked to tell the officer what “Daddy” was wearing, she said he had pants on and then immediately corrected that by saying, “His pants was off.  I accidently say his pants was on”.  When she was asked again to tell the officer what he (her father) was wearing, she said:  “A shirt but no pants”. She said the shirt was red and had a red tiger on it and a rainbow colour under the tiger.  When asked what her father said to her, she said he did not say anything.  She said she was on her father’s bed because he could not fit on the little kids’ bed.  

15. When the police officer later re-asked E why she was scared to tell him, she said it was because she did not want to get in big trouble.  When he returned to her earlier comment that her father gave her candy after, she said he gave her pumpkin candy. 

16. When she was asked if she had told anyone else about “this”, E said she told her mother and the officer; when asked what her mother said, E said: “Dad is not allowed to do those things”.

17. When the officer asked E if anyone had told her what to say in the interview she said: “No” and then said that “Somebody has said something to me”. She said her mother said: “Oh I love you”;  “that’s the only thing”.  When the officer asked her if there was anything else that her mother said, E said, “No”.

18. Despite the matters outlined above, the Queensland Police Service Solicitor’s Office Report[30] reveals the following about the interview:

    a)E stated that the “named person” had touched her girl parts with his “noodle”; when questioned, she was able to clarify that boys had noodles and that was what they went to the toilet with; she was able to clarify that girls did not have noodles and did in fact have “girl parts” and that is what they used to go to the toilet; however

    b)E was not able to particularise what the named person’s noodle was or looked like; she was not able to particularise what the named person had done and further was not able to particularise when the offence had occurred, although was able to state that it had happened in a bedroom; no other clarifying factors were able to be obtained; E struggled to maintain focus throughout the interview and several pauses were taken; and

    c)the s 93A statement was completed without the entirety of any offence particularised; and

    d)protective strategies were attempted to be covered with E, but, due to the length of the interview and that her attention span had waned, this was unable to be effectively covered.

    [30]         Exhibit 3, pages 108-110.

19. I consider that, during this first s 93A interview, E:

    a)corrected the assertion that “the noodle thing” was a game; and

    b)clearly did not want to tell the officer, saying “if only he hadn’t have done that”;

    c)and specifically said that her father put his “noodle” in her “girl parts” and she did not really like it; and

    d)clearly identified the body parts to which she was referring when she said “noodle”, “boy parts” and “girl parts”; and

    e)corrected herself when she first said to the officer that her father’s pants were on at the time.

20. The Solicitors Office Report also contains the assertion that, when the mother was told about E’s interview that day, she “appeared disappointed that no offence was to be particularised”. There is no further detail about the observations which resulted in officer S reading this (subjective) conclusion. Given my assessment of the manner in which he was prepared to reach a definitive conclusion about the non-existence of an office (as opposed to the likely inability to successfully prosecute an offence), I am not particularly persuaded by his assessment of the mother when she received the information he conveyed to her after interviewing E.

21. I accept that, before E was first interviewed by police, the mother did not have any concern that she would not speak to a male police officer; I accept she did not even really think of this and that she had assumed E’s interview would be conducted by more than one police officer. She said that, after the interview finished she asked her daughter if she was okay and it was then that she learned that she had been interviewed only by officer S. The mother said she was very confused because, as the interview went for so long, she assumed E must be telling the officer something and then he came out and told her she had made no disclosures and had not particularised any offence. 

22. After the interview ended, officer S told the mother that E had not made “any disclosures” to him. However, he said he would seek to interview the father as part of his process.[31]  I accept that officer S told the mother he would telephone the father to speak to him. I accept that he also told her he would call her later to let her know what was going on.

    [31] Affidavit of the mother filed 30 May 2014 at [26].

23. I accept the mother’s evidence that officer S did not tell her after the interview or at all that he had concerns she had coached E. The mother later formed the view that he thought that because officer T (who conducted the second interview with E) told her that the child had said some things to officer S but these were not clear enough and her language skills were not developed enough; that is, she said she felt that officer S had purposely told her that E had made no disclosures because he thought she had coached her.

24. The mother refuted the suggestion that she had simply refused to accept that E had not disclosed to the police and wanted them to hear her make disclosures and that was why she “interviewed” the child later that night. She said that she acted as she did because she was very confused about what had happened:  that is, her daughter told her those things and was very clear about it but the police said she had not said anything.

25. The mother said the father told her that officer S had contacted him. She then spoke with officer S, who told her that the father had refused a formal interview.

Police contact the father: 12 April 2014

1. Officer S spoke with the father on the afternoon of 12 April 2014. He declined to participate in an electronic record of interview without a lawyer present. It seems officer S told the father as he was leaving that he would be closing the case.[32]

   [32]         Affidavit of the father filed 24 April 2014 at [9] – [10].

The Police conclusion

1. Officer S decided that, because E was, in his view, unable to adequately particularise any element of an offence and because the father declined to be interviewed, the matter could not be proceeded with at that time.

2. He also recorded in official police documents that he held the belief that “it is very unlikely that the offence did not occur”.[33] He explained during his evidence at the trial that this was an error: what he had intended to record was that it was “very unlikely that an offence did occur”.

   [33]         Exhibit 3, p. 110.

3. I find it very troubling that officer S was prepared to reach such a view – that is, to reach a positive conclusion that a five year old child had not been sexually abused – at that stage of the investigation. Whilst I suspect it is not uncommon for police officers to conclude that it is “very unlikely” that the evidence known to that officer at a particular point in time is such as to provide the basis for a successful criminal prosecution, that is, I think, a very different thing to positively concluding that it was very unlikely that an offence occurred.

4. My concern is magnified when it is clear that such a conclusion is highly likely to be shared and permeate future investigations and any future consideration by others – such as the Department or subsequent police officers – of the complaint. Similar concerns exist about officer S’s apparent conclusion that E may have been coached by her mother.  It does not seem to me that a parent telling a child to tell the truth or to tell everything to the police constitutes that parent coaching the child.

5. Having regard to the contents of the first s 93A interview, the manner in which E spoke and acted whilst being interviewed and the mother’s own apparent limitations in retaining information and conveying the same clearly and consistently, I am not at all persuaded that E was coached by her mother to make the comments recorded within her interview.

The mother records E: 12 April 2014 (after her police interview)

1. The mother’s evidence about what happened after she and E returned home after the police interview is quite consistent with the account she provided to Dr K about this: she told him that, when she got home later that night, she was quite upset and said to E something like: “I think you must’ve lied to me or to the policeman because he says that you didn’t say anything to him about Daddy doing those things but you told me he did”. E got quite upset with her mother and said that she did and that either he did not remember what she had said to him or he did not understand what she had said to him.[34]  She said E then started to cry and said: “Nobody believes me”.

   [34]         Affidavit of Dr K filed 27 January 2015 at Annexure “A”, Appendix 1, page 8.

2. The mother said she specifically put the boys to bed so she could talk to E; they were sitting on the couch at home at the time she questioned her daughter about the disclosures she had made.  She used her phone to record their conversation.

3. When challenged that she did this to continue her own investigation (and despite the police having already reached their own conclusion that E’s complaint would not be taken further), the mother said she had not intended to conduct an investigation but she wanted to understand, from her own point of view, what was going on: she said she was determined to get to the truth.

4. The mother exhibited a transcript of the recorded conversation to her affidavit.[35] A copy of the recording itself is Exhibit 5. The transcript is not a perfect transcription of the contents of the recording, in that it seemed to me that a number of words have been inserted at times where I found the recording unclear. It seems to me that E told her mother a number of relevant things during this conversation.

   [35]         Affidavit of the mother filed 30 May 2014, Annexure “VAS5”.

5. She said she was not lying to any of them and that she told the police officer what her mother had said to her: namely, that noodles are not allowed to be in little girl’s “girl parts”.

6. When her mother said that she had said there was a bit that hurt her but she had never told her what that was and asked her “what happened that hurt you”, E said: “ Um dad put his finger in the, in the hole”.  When her mother asked “He did what?”, E told her that he put his finger in the little hole and it was that that really[36] hurt; according to the transcript, she went on to indicate that he put his finger in the “girl hole” (not in her bottom); that he did this because he wanted to and despite her telling him not to; that she kept on trying to get away and tried to hide from him; that the boys were in the bathroom and in the bath; that she did not tell the police officer about “the finger” because she forgot; she was scared to say it because it is weird; they had been sitting there for a long time; and that she did not tell the police officer that because she did it on accident.

   [36]Whilst the word “really” appears in the transcript, it seemed to me to be unclear on the recording itself.

7. The later comment seems to me to be likely to be E’s way of telling her mother that she accidentally forgot to tell the police officer that.

1. On the mother’s account then, by the evening of 12 April 2014, E had told her that the father had done “the noodle thing” on where she pulled up her pants and that he had inserted his finger into her vagina.

What happened after E spoke to her mother on the evening of 12 April 2014?

1. After she spoke with E, the mother sent two emails to officer T. In these she detailed what she said E had said to her. She also attached a copy of the voice file (that is, the recording). The mother asked that, given this new information and her belief that the child had had trouble opening up to a male police officer, E be reinterviewed.[37]  

   [37] Affidavit of the mother filed 30 May 2014 at [34].

2. In explaining why she sought a second interview, the mother said she wanted E to have the opportunity to speak to someone she thought she might be more comfortable talking to and that she may not have been comfortable speaking to a man. I accept her evidence I this respect.

What happened on 13 April 2014

1. The children were due to return to their father’s care on 12 April 2014.  However, the mother retained them due to her concerns about their safety. She contacted U Group and made an appointment for 13 May 2014.

The father contacts the maternal grandparents: 13 April 2014[38]

[38]Affidavit of mother filed 30 May 2014, Annexure “VAS6”; affidavit of Ms V Sarsgaard filed 25 February 2015 at [4].

1. The maternal grandmother said that, on 13 April 2014, the father called the maternal grandparents and told the (now deceased) maternal grandfather that he “had not put his penis in [E]”.

2. The father accepted that he telephoned the maternal grandfather.  He said the only reason he said anything about the allegation was because the maternal grandfather asked him if he had put his penis in E.[39]

   [39]         Affidavit of the father filed 13 March 2015 (9.11 am) at [4] – [5].

3. When she was cross-examined about this event, the maternal grandmother said that she was right beside her husband in their bedroom when he answered the telephone. She said she could not hear what was going on during the conversation but that, as soon as it ended, her husband told her the father had said: “I didn’t put my penis in her”. She said she was shocked because her husband had not actually said anything to the father about any allegations; as far as they were concerned, the father was just calling them to find out where the mother and the children were; she also said that, at that stage, there was no mention of the allegations at all.

4. The maternal grandmother explained that it took them two days to tell the mother about this conversation because she was away and had blocked her phone and was not taking telephone calls. She emphasised that they could not get in contact with their daughter at the time. I accept her evidence in this respect.

5. Whilst Counsel for the father suggested to the maternal grandmother during cross-examination that the reason she had not told the mother about this comment by the father for two days was because she had made it up, this suggestion is inconsistent with the father’s evidence that he in fact made that statement to the maternal grandfather on that occasion.

6. Given that the mother provided the police with contact details for her parents soon after she became aware of the conversation between the father and her father, it is very unfortunate (to say the least) that, on the evidence before me, there appears to have been no follow-up of this information particularly given that, depending on what actually happened, certainly appears capable of constituting a statement against interest by the father.

7. Whilst there may well be other reasons to explain why no follow-up occurred, I am left with the disturbing thought that this omission may well be causally related to officer S’s positive conclusion that the mother had coached E and that no offence had occurred (this being his conclusion despite him inaccurately recording his opinion as being that there was no doubt an offence had occurred). 

The mother texts the father: 14 April 2014[40]

[40] Affidavit of the mother filed 30 May 2014 at [19].

1. The mother sent the father a text on 14 April 2104. In it she reassured him that the children were safe. She told him she spoke to E who told her that he had done rude things to her and hurt her while the boys were in the bath. The mother said E was quite specific, that she (the mother) could not think of any reason why the child would say those things if they were not true and that she (the mother) could not imagine where she would get those ideas from.

2. The mother said the father responded by telling her that the police had closed the case after talking with him and E; they had not pressed charges and that, whilst he was not sure what E had told her, it must not be the same thing that she told the police.

3. As I understand the mother’s evidence, the father’s failure to deny the allegations to her in this response (as opposed to stating that the police were not pressing charges) was itself an action that caused her further concern.

4. Whilst others may share in the mother’s “concern”, it seems to me that it would be dangerous to conclude it was more likely than not that the alleged events occurred simply by relying on the way in which the father responded to the mother’s contact with him.

Officer T contacts the mother: 14 April 2014

1. Detective T contacted the mother on 14 April 2014.  She said she had read Detective S’s report, to the effect that E had made some comments to him about sexual assault but had not been able to provide enough detail or context. She agreed to reinterview E herself. An appointment was made for that to occur the next day.[41]

   [41] Affidavit of the mother filed 30 May 2014 at [32].

What is the state of the Department’s information as at 15 April 2014?

1. The Departmental referral to the police dated 15 April 2014 includes that E had advised that her father sexually abused her; she said he had “pulled her pants, put his noodle where she pulls her undies up, it hurt only at the end, and it was 100 rude”; when asked some more questions, she further said he put his finger inside her and she said:  “Don’t tell Daddy, he will want to kill you”.

E is interviewed by Acting Detective T: 15 April 2014[42]

[42]         Exhibit 2 and Exhibit 18.

1. Officer T interviewed E on 15 April 2014. The mother said that, after approximately 45 minutes, the officer returned with E and told her that the child had made some disclosures. The mother also said that the police officer told her that “it sounded like the abuse had occurred on more than one occasion” but E was still unable to provide enough detail for prosecution. I accept the mother’s evidence about what she was told.

2. Again, the transcript of the interview contains some inaccuracies but is helpful as an aide when listening to the interview itself. 

3. It seems to me that, when the officer asked E why she had come to talk to her, E said she did not want to, but her mother “took” (brought) her.  When she was asked why she thought her mother took (brought) her to see the officer, she said:  “Cause I had to tell you ‘bout some things that Dad did and what are rude, again to you and I said to man”.

4. When she was asked why she did not want to talk about it, E said because it is rude and she did not want to say rude things, “like I was scared to tell the man and Mum”.  E said: “and Daddy put ummm I don’t want to say this part”.  When asked “Why not?” she said: “cause I have to say two two rude things that, these rude things that Dad did … and I don’t want to tell them”.  When she was asked how she found out that they were rude things, E said:  “Because he did that to me”.  When the officer asked her “But how do you know that they’re rude things?” E said: “Because I saw it”. 

5. When E was asked where the things that happened to her happened, she said: “In Dad’s bedroom”.  When asked when they happened, she said:  “At night time” … “He does it all the time at night”. 

6. When the officer asked, “So what did he do to you [E]?” the child said: “I don’t wanna say … mmmm okay, he put his on my, I’m too scared to say it”.

7. When she was asked what she was scared about, E said: “I can’t say it, I, oh, I can’t say it because I’m too scared, and I have to tell you if, if I’m gonna be scared because that’s why I, I need to tell you but I don’t want to and my Mum says I had to”.

8. E said she told three persons what her father did to her:  the officer, the man (officer S) and her mother.  She continued to say that she was scared to tell the officer, that she did not want to say it and did not want to tell it. When the officer pressed E to tell her why she was scared, E said: “Because, I um have to tell everyone this, because she’s bringing me to tell everyone”; the “she” was her mother.

9. When the officer followed up again by asking why that made her scared and asked E why she was scared, E said: “Because I, because umh, because I don’t wanna tell these people that, that, that, what Dad did ‘cause its rude”. When she was asked how she knew it was rude, E said it was because it looked like it was rude.  When she was asked how she knew what was rude and what is not, she said:  “Cause I just know”. 

10. When E was asked whether there were any parts of her body that were only for her, she said:  “Girl parts”.  She was able to point to where urine and faeces leave the body and to identify which substance left the body from what part of her body.

11. When E was asked “Where poo comes out of?” she indicated; when asked, “What’s that called?” she said:  “Your bum hole” and then said:  “And he put his finger in my bum hole”; when asked “who did?”, she said “Dad”. When she was asked to tell the officer about that, she said:  “That’s the only thing about that.  Dad put his noodle [on] my girl parts.  He’s not allowed to do those things.  And you aren’t allowed to tell Dad.  If you tell Dad, umh, he will get angry at me.  Man [can’t tell] anyone”.

12. The interviewing officer then asked E to tell her more about when “he put his finger in your bum hole”.  E said that happened every night; that she did not want him to but he did it; that she was in his room because he put her there; that she got under the bed but he pulled her out.  The officer asked E to tell her more about what he did and how he did it.  E said: “He just grabbed me”.  When asked “And then what?”, she said: “I don’t know what happened”.  When asked how she felt, she said she could not really feel a lot of things.  When asked what she was wearing, she said she had no clothes on because her father took all the clothes off her:  there were dirty ones that go on the dirty pile. 

13. When she was asked where her brothers were when “this” happens to her, E said:  “They are watching TV and play and I, every time Dad wants me to do it, I say no and then he picks me up”. When asked, “What do you mean every time he wants you to do it, do what?” E said:  “Do do the rude part things”.  The officer then asked E “What’s the rude things that he wants you to do?”  E said: “Um remember what I telled you first”.  When the officer asked, “Which one?  You’ve told me two things”, E said:  “I said he put his noodle in and the thing in the hole: … He put his noodle in the girl parts …”.

14. Despite the fact that E had earlier told the officer that, “Dad put his noodle [on] my girl parts”, the officer then (incorrectly) told E “You haven’t talked about the noodle in the um girl parts, you haven’t told me about that one”; E (correctly) said:  “I had”.  When the officer asked her “Who to/to me?” E said (correctly): “Yeah and also the boy and told mum”. 

15. When asked what a noodle is, E said: “Um the thing what, what is the boy parts, boy parts”.  When asked what it looks like, she said: “It looks straight … and it has different parts”. 

16. The officer then asked E to tell her about when “Dad” put his noodle in her girl parts.  E said: “Umh straight away when we get [on the/under] bed”.  When asked to repeat, she said:  “Straight away when he puts me in the bed .. he puts me on the bed and I can’t get out”.  When she was asked “Why can’t you get out?”, she said:  “Cause he’s on me”.  When asked what she meant, she said: “He told me I can’t go”.  E said that they were both in the same bedroom: she could not get away because he was too big. She said they were in his bedroom and she was “lying down … because if I sit up, he can’t, he can’t lay on me”.  She then showed that she was lying on her back (saying that if she was on her tummy he would see her butt, so he does not do that).  When the officer asked her what happened next, E said:  “Umh I don’t know what happened next”. 

17. When E was asked, “How did he put his noodle in your girl parts?”  she  said:  “Because I couldn’t get out because he was still laying on me”;  she said  she was laying on the tummy part. 

18. When the officer asked E, “What, what did he actually do with his noodle?” E said:  “He put it on my girl parts, I told you twice”. The officer then asked, “Well did he have clothes on?” and E said: “Um yeah” and then said “Oh wait he didn’t, he never has clothes on when we do that”.  E said she had her clothes on.

19. When asked, “How did he put his noodle on your girl parts, what was he doing?”  E said: “He was let me, he didn’t let me go … and he didn’t want me to go cause he wanted to do that to me”.  When asked if she felt anything, E said: “Nope”. 

20. When the police officer asked, “So has anything else happened to you [E]?”, the child said: “Um nothing else, oh I know, um he put his finger in my girl parts again .. and not again”.   When the officer asked, “Why didn’t you remember that when you talked to [officer S] the other day?”, E said: “Because, because, umh, I didn’t remember”.  When asked what part of her girl parts the father put his finger on, E said: “He put it into the parts”. 

21. When asked how old she was, she said: “Four” and then said: “Five”.  When asked how many times this had happened, she said:  “All the time … all the time when I go to Dad’s he always do that”.  When asked what Dad said when he does these things, E said:  “Nothing”.  When asked if he told her to do anything, she said:  “He told me to take my pants …”.

22. The officer asked E if she had told anyone else about “this”?  E said: “You, [officer S], Mum”.  When asked who the first person she told was, she said: “Mum, and the second one is umh [officer S] and the second one is you”.

23. The officer asked E if she liked going to her “Dad’s”. E said:  “Um yeah only a only a little bit cause um when, when on my birthday, he doesn’t do rude things to me”.

24. When the officer asked E if she felt safe at her father’s house, the child said:  “Yes”.  When she was then asked what made her feel safe there, she said: “What makes me feel safe is that I’m not outside”.  When she was asked if she could remember the last time her father did something rude to her, E said: “No” and then “Yes” and then confirmed she could remember it. However, when asked why she did not tell her mother straight away, she said: “It’s because I didn’t remember straight away”.

25. When she was asked if something happened to her and she did not feel safe would she have someone to talk to, she said: “No”.  When asked who she could talk to, she said:  “Um Mum, but Mum, Mum is not in the same house”. 

26. When she was asked if she could talk to her father, she said:  “No, he doesn’t stop when I want to, he doesn’t stop he just keeps on going, saying wait and then he takes longer”.  When asked, “Longer with what?”  E said: “The noodle thing”. 

27. The officer then asked E again why she was scared to tell someone today.  E said because she did not like saying rude things to people and she was scared to say it to her mother, officer S and the officer.

28. When the officer asked E if anyone ever told her not to say anything, the child said:  “Dad”.  She said he said “do not tell anyone”, but she forgot what he said after that. E also said that she did not want “the boys” (her brothers) to not like her anymore and so she did not tell them.

29. When asked whether anyone had told her what to tell the officer or what she had to tell the officer, E said:  “No”.

The mother provides further information to Detective T: 15 April 2014

1. Later that day the mother emailed Detective T to tell her that she had just spoken with her parents (E’s maternal grandparents) – they had told her the father had called them on Sunday to ask where the children were and that, during the conversation, he said “I have never put my penis in her (E)”. The mother told Detective T that her mother thought this was a strange comment to make because no one had been specific about what it was that E was saying he had done. She asked that this information was recorded in the file. She provided her parent’s names and their contact telephone number.[43]

   [43]         Affidavit of the mother filed 30 May 2014, Annexure “VAS6”.

2. As already remarked upon, there is no evidence before me to suggest that any police officer made any contact with either of the maternal grandparents to ascertain the context of the reported communication with the father.

The father commences proceedings: 24 April 2014

1. On 24 April 2014, the father filed proceedings. He sought specific parenting orders, including a Recovery Order and that his application be heard ex parte. On the same day, the mother offered to make the children available to spend time with their father on a supervised basis at a Contact Centre on 8 May 2014. That she did so seems to me to be inconsistent with the father’s contention that she wanted him removed from the children’s lives entirely.

E makes a further comment to her mother: 12 May 2014[44]

[44]Whilst the affidavit of mother filed 30 May 2014 at [53] does not contain a year reference, it seems to me that, logically, it can only be ‘2014’.

1. The mother said that she and E were in the back yard at her parent’s home; they were lying in the hammock together; E licked her face; the mother said: “Don’t do that.  It’s yucky.  Do you think people like it when you lick them?”[45] E said: “No, but Daddy licks me in the girl parts”.  (The mother said E called her vagina her “girl parts”.)

   [45]         Or words to that effect.

2. After E made this comment to her, she (the mother) went inside and told the maternal grandmother what E had said to her.

3. Whilst the mother agreed during her cross-examination with the proposition that there was nothing about a “hammock incident” in her affidavits, her affidavit does refer to E telling her that her father licks her “girl parts”.[46] Her affidavit account does not include that she spoke with the maternal grandmother after this incident. Further, there is no mention in Ms J’s report that the mother told her about this alleged incident and there is no mention of it in the progress notes compiled by Ms P. However, the recording made by Ms P of a telephone conversation she had with the maternal grandmother whilst the mother was present certainly refers to the mother being “absolutely distraught” that E had licked her on the cheek when they were in the hammock and had told her mother that that was what her father did to her on her private parts.

   [46] Affidavit of mother filed 27 May 2014 at [53].

4. That is, whatever the reports about the conversation in the hammock, it seems to me to be clearly established that the mother told Ms P about it at some stage and that the maternal grandmother provided her account of what the mother had told her following it.

Departmental records: 22 May 2014

1. On 22 May 2014, the Regional Intake Service of the Department received the following information: the father was sexually abusing E and Child Protection Services and the police were doing nothing about it; the abuse was revealed by E after a situation arose between her young cousin and herself: on being sat down and told about what is appropriate and inappropriate, E revealed that “daddy does things like that to her”; and at present there is a 50/50 custody arrangement, however the mother had not returned E to the father, whose whereabouts are unknown.[47]

   [47]         Magellan report dated 15 August 2014.

1. The father said he helped the mother with what he could after he arrived home from work. Even on this basis, the only sensible conclusion is that the mother shouldered the burden of caring for the children for the vast majority of at least the working week. From the father’s perspective he would “watch the children” for a number of hours – and sometimes the entire day on Saturday – so that the mother could go out and do things. It also seemed to me to be more likely than not from the father’s evidence about how he worked from home that, even when this was the case, the mother was still the parent primarily responsible for attending to the children.

2. The father accepted that, on the occasion the mother admitted herself to the NN Hospital Psychiatric Ward, he had refused to help her clean up when C had smeared faeces around the room and defecated on the carpet: he said he told her he could not clean up the faeces because it would make him vomit. He accepted he had told her the same thing on the first occasion that C smeared faeces around the home.

3. The father accepted that, when he moved into the share house after separation, it was not such that he could accommodate all three children at the one time. He also accepted that, at separation or soon after, he did not apply to the Court for an order that the children live with him or for an order that they spend significant or substantial time with him.

4. The father said that, at one stage, he was concerned because one of the children had left the house and got out on to a busy road. When asked about this issue during cross-examination, he said the mother told him C left the house when she was bathing with E; he accepted that, after this incident, the mother had a security door installed.

5. Despite his criticisms of the mother’s parenting of the children, the father agreed that, at the time, he was happy enough with the parenting arrangements trialled by the parents during the first term of 2014: that is, until the April 2014 allegations arose, he was happy enough with the children spending each alternate week with their mother.

6. It is against this background that the father said at trial that the mother’s functioning was not the reason he proposed the children’s time with her be supervised. Rather, he sought such an outcome because of the number of issues that have risen about the care, and possible neglect, of the children whilst in her care. He also said he thought the children’s time with their mother should remain supervised until such time as her mental issues are deemed not to be a risk to the children and he also relied on what he described as the two previous occasions on which she had “absconded” with the children and prevented them from having contact with him.

7. It appeared that the first period of this “absconding” occurred at separation in October 2011when the mother took the children to stay somewhere in Region OO for about three weeks: he said that the receipts she provided him did not necessarily say where the children were. The second instance of “absconding” occurred after 12 April 2014, when, following the disclosure by E, he did not see the children for about six weeks. I do not accept that the mother’s actions in the circumstances described by the father amount to instances of her “absconding” with the children.

8. Whilst the father said that the mother did buy the children clothes and toys when she had some money ( noting his very limited financial contribution to their care) and that a further “good point” about her as a mother was that she encouraged the children to speak to him on the telephone, he also took the opportunity to speak critically of her: when asked whether he accepted that the children have a close and loving relationship with her, the father said “I do not know the nature of their relationship as I’m not in their house”; when asked whether he accepted that the children enjoyed themselves plenty of times with their mother, he said “I’m not sure, because I’m not there”.

9. Given these comments, the father was then asked why the January 2013 Order (which provided for the children to spend lots of time with each parent) was made: he said that the parties were a lot more amicable at that time. He sought to justify his consent to those orders on the basis that he did not then know about the mother’s significant depression; he also said that the reports to the Department all occurred after the parties reached their parenting agreement (a statement which does not seem to me to be entirely accurate); and that things got worse after the parties agreed the terms of the January 2013 Order.

10. Despite whatever his concerns were after the January 2013 Order was made, the father accepted that he did nothing to return the matter to Court to have the January 2013 Order changed: it was only after the mother withheld the children from him in April 2014 that he applied for a Recovery Order. Further, whatever issues the father had with the manner in which the mother complied with the January 2013 Order, they were such that his solicitor at the time told him that they were not significant enough to warrant bringing an application for contravention and that the Court would look disapprovingly on anyone who brought forward insignificant issues.

11. It seemed to me that the father first agreed with the proposition that it was only when he saw the first Magellan Report (dated 15 August 2014) that he had concerns about the mother’s functioning; however, when it was suggested to him that it wasn’t until 15 August 2014 that he had concerns about the mother’s functioning (because of the contents of the report), he then said that was not entirely the case: he explained that he was aware of some things, such as: the children having dirty underwear when they returned to his care after spending a week with their mother; that the children had not done their homework; that E had not had proper clothes at day-care and, on occasion, had not had a proper lunch.

12. The father accepted that the children had given him presents on Father’s Day. He also accepted that, during a December 2014 supervised visit, the mother gave him a photo album containing lots of happy pictures of the children doing activities whilst in her care. Despite this, when asked whether he accepted that the children enjoyed themselves and had fun in their mother’s care, his response was that “I assume that there are times that they do” and then, immediately, he raised that E had told him during a supervised visit that it was not fun at her mother’s home.

13. Despite maintaining his position that the mother had attempted to minimise him in the children’s eyes, the father accepted that, after separation and until he secured accommodation, she had allowed him to visit the children at her house on occasion; he said that, even after the occasion in December where the police attended at the home, the mother invited him over on Christmas Day to open presents with the children and allowed him to stay to use the Xbox after she left with the children to visit the maternal grandparents. Further, whilst he was critical of the waiting time at the Contact Centre suggested by the mother, the father accepted she had suggested the option of supervised time with the children to him – rather than vice-versa.

14. Despite all of these incidents of what I regard as the mother supporting the children’s relationship with their father, he still believed that she had embarked on a deliberate strategy to minimise him in the children’s lives. I do not join in that belief.

Ms P’s assessment: Report dated 25 June 2015

1. The father saw Ms P on 29 April 2015, 7 May 2015, 27 May 2015, 3 June 2015 and 17 June 2015. Ms P addressed the same matters in her session with the father as she had with the mother. Following those interactions, she identified a number of “themes” which included a focus on mother’s lack of parenting skills, a lack of understanding around child developmental needs and a strong emphasis on “faith.”

2. Ms P noted that the father appeared to become frustrated at times and, towards the last of the sessions, presented as highly agitated and stressed. It seems these sessions were at around the time he lost his employment. Ms P recorded that the father was alert and cooperative throughout the majority of sessions, although he sometimes became agitated given the lack of time to complete the work required: she also found that, during the initial session, he focused more on the end date of the process than on the content. She thought his anxiety related to the Court proceedings and his desire to show a high level of knowledge when it came to the court material.

3. Ms P said the father presented with minimal knowledge of protective behaviours and sexual abuse in general. During her early exploration of any behaviours he thought “inappropriate”, Ms P records that the father indicated that he was “shocked” when he found E “dancing around the room”: he thought this was very odd behaviour, he did not see it as typical behaviour and was only reassured when his mother told him it was typical that he became less concerned. However, over the course of the sessions, the father began to demonstrate an ability to distinguish the difference between age appropriate behaviours, sexual play and inappropriate sexualised behaviour in children and was able to distinguish between appropriate sexual play and when sexual play could turn into sexualised behaviours.

4. During his cross-examination, the father said Ms P was not accurate when she reported him telling her that he was “in shock” when he found E dancing around the room. Rather, he said he was surprised because, at four years of age, she was dancing around the bedroom with no clothes on and he did not know that was normal.  He said he had used the words ‘surprised’ or ‘concerned’ rather than ‘in shock’.

5. Ms P reported that she was also struck by the father’s initial lack of awareness around the developmental stages and ages of children. She also noted that he was very firm in his desire for the children to be taught safety behaviours in line with his faith and, in furtherance of this, he provided her with children’s books his mother had sent him from America. However, Ms P considered that neither related to the type of safety behaviour that was indicated for the children.

6. Ms P outlined that, initially, the father objected to her using Family Planning Queensland’s “Everybody has a bottom” book on the grounds that he considered it to be an inappropriate book because it depicted children running around naked. During his cross-examination, the father said he was not comfortable that Ms P wanted to use the book “Everybody has a Bottom” (by Family Planning Queensland) and asked her if she had any other resources that provided the same teaching to children. However, he denied telling Ms P that his view of the book was that it was inappropriate because it had a child running around naked in the pictures.  I prefer Ms P’s account to that of the father in this respect.

7. The father also said he was more comfortable with the book now after talking with a woman from his church, who had been abused as a child, and who had explained to him how she used it with her children; he said he would be willing to take a second look at it.

8. Ms P concluded that she considered that the father held an unrealistic expectation of the emotional, psychological needs of his children; she recorded that he became highly frustrated with her suggestion around implementing basic behavioural strategies for the children in the home – he said the children did not need to have charts and routines plastered all around the home because they were well behaved and knew what to do. Such comments concerned Ms P as she thought they showed a failure to recognise that children will, at times, push boundaries; she was also concerned because this comment appeared to suggest that the children did not have any underlying emotional issues that required attention, when other material suggested otherwise.

9. I accept Ms P’s evidence in this respect.

Family violence and family violence orders[112]

[112] Sections 60CC(3)(j), 60CC(3)(k) and 60CG of the Family Law Act 1975 (Cth).

1. The mother has previously privately applied to the Suburb PP Magistrates Court for two domestic violence orders: the first in 2011 (which was subsequently dismissed on 9 February 2012 at her request) and the second application on 3 May 2013[113]  – following which a temporary protection order was made. She agreed that no final protection order was made and said that she had not sought this because the temporary order “had the desired effect”. By this, she meant that it resulted in her getting ‘some peace’. I accept her explanation that, given that the father stopped what she described as his “constant communication” to her after the temporary order was made, she did not turn up at the court when the matter returned for its next hearing date some three or four weeks later.

   [113]        Exhibit 3, page 107.

2. I note that the mother accepted that the behaviours she relied on in applying for the protection orders were calls, emails and texts to her from the father. I accept that she found them harassing. I also note that, when asked about this during her cross-examination, the mother accepted that, whilst it was possible that, from the father’s perspective his communications were simply him wanting to be involved in the parenting of the children, she found a lot of the communication to be about very minor things.

3. I note that the father accepted that, before the parties married, he kicked the mother’s car door and dented it. He said that was one of the only occasions he could recall when he had problems controlling his temper. He denied yelling at the mother if chores around the home were not done to his liking and he could not remember whether or not he damaged a phone by throwing it across the room. I do not accept his denials and I prefer the evidence of the mother about his behaviours.

4. The father accepted that a glass chopping board was damaged when he put a jar down onto it, but denied that he had “slammed” the jar down or acted in anger – he said the board was already fragile. He denied shouting loudly or shouting at all during his cohabitation with the mother (denials which I do not accept), but accepted that he “may” have called her a “witch” or a “bitch” at times. I think it more likely than not that he used such terms to refer to the mother at times.

5. The father also accepted that, on one occasion after he and the mother married, he asked her son Mr H (who was about nine years of age when they married) to vacuum the house; the child said he did not know how to vacuum the house.  Whilst the father initially denied hitting Mr H on the back of his legs with the vacuum cleaner cord, he later said he did not recall how he physically disciplined him (a thing he accepted he did); he said, at first, that he had “spanked” Mr H because he did not like the child’s attitude toward him, which he found disrespectful; when asked to explain what he meant when he used the word “spanking” the father said he could not recall exactly what he had done to Mr H or exactly what had happened at that time or exactly what was done for the discipline. I found his evidence about his actions to be less than persuasive and prefer the mother’s evidence about this event to that given by the father.

6. Even if I am wrong to prefer the mother’s evidence to that of the father about his behaviours during their cohabitation, the father’s admissions establish the existence of behaviours which satisfy the definition of “family violence” for the purposes of the Act.

Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the children

1. In my view, the parental dynamics are such that that it is more likely than not that the prospect of further proceedings in relation to the children will be increased in the absence of clear and simple orders regulating the children’s time with each of their parents. I think it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.

Other relevant matters

1. The mother accepted that, when she spoke with her general medical practitioner in May 2013, she said she felt frustrated that she was not able to parent the children without having to involve the father. She explained that she made this comment because, whilst she did not mind making decisions with the father, she found he was sometimes not very easy to deal with and she found it very stressful. I accept her evidence in this respect. I also note that, whatever frustration the mother may have felt in late May 2013 because a protection order was not in place, such frustration did not persist so as to prevent her participating in a mediation with the father in January 2014 and subsequently reaching agreement with him about the terms of a parenting plan.

2. I also accept that, when the mother discussed the mediation with Ms QQ (a therapist) in mid-October 2013, the discussions included that a mediation would provide her with the opportunity to arrange a “no-contact arrangement with her husband that will prevent further intimidation or harassment towards her”: I accept the mother’s explanation that what she was then referring to was there being no contact between the father and her, and not to there being no contact between the children and the father.

3. I accept her denial of the proposition that, as at October 2013, she was looking to find a way for there to be no contact between the father and the children. The suggestion that the mother was thinking this way in October 2013 seems to me to be inconsistent with her actions in agreeing to the terms of the parenting plan in January 2014 which, although not registered, was implemented by the parties until the April 2014 disclosure by E.

4. I note that an email sent by the mother to the father on 17 October 2013 contains her assertion that what she saw as his  “constant spying-type behaviour” (namely,  asking the day-care centre for information about her care of the children) was interfering with her ability to parent the children as she was regularly having to second-guess whether decisions she made would be used by him as an opportunity to complain about her and harass her; she also told him that whether he accepted it or not, there were some small decisions she was entitled to make regarding the children, without first having to consult him – and vice-versa.

5. Ms P recorded that the mother told her during their sessions in May/June 2015 that she did not have a healthy relationship with the father and felt intimidated by him.

6. The father advised the Department in about mid 2014 that was no parental relationship and that he would rather not see the mother. I also accept that, during his sessions with Ms P in May/June 2015, he told her that he did not have a healthy relationship with mother, believed she had invented the allegations of sexual abuse of E and firmly believed that she could not meet the children’s needs.

What orders are in the children’s best interests?

1. I may, subject to s 61DA,[114] s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper. In determining what parenting order is proper, I must, as I have done, have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[115] Further, in deciding whether to make a parenting order and the terms of the same, I must, as I have done, regard the children’s best interests as the paramount consideration.[116]

   [114]        The presumption of equal shared parental responsibility.

   [115] Section 60B of the Family Law Act 1975 (Cth).

   [116]        Sections 60CA and s 65AA of the Family Law Act 1975 (Cth).

Parental responsibility

1. As noted earlier, the father sought an order for equal shared parental responsibility for the major long term issues relating to the children, whilst the mother proposed that an order be made according her sole parental responsibility for the major long term issues relating to the children.

1. When cross-examined by Counsel for the mother, the father said that, as the children’s mother, the mother needed to be involved in major decisions in their lives. He maintained this position despite his criticisms of the mother’s capacity and approach to parenting; he appeared to rely on the fact that, in 2012, they reached agreement about the children’s school; he also said that, despite the April 2014 events, he thought it was the best thing for the children if their parents could reach agreement about matters such as where they will go to school and what medical treatment they should have; he said he thought that, as time passed and the mother’s depression was dealt with, it would be easier for them to discuss issues such as school: he was confident that, in time, he and the mother would be able to make decisions jointly about their children.

2. However, when cross-examined by Counsel for the Independent Children’s Lawyer, the father said that, when he completed his Application for parenting orders, he was not aware of the mother’s mental state: with this knowledge, he said that, whilst he would prefer her to have input (so she would not feel alienated from making long term decisions about the children), if they could not agree, he should be the person to make the decision. As an alternative to that, he suggested the parties could go to mediation. I took his end position to be that he would prefer an order according him sole parental responsibility to be made, but with the opportunity for the mother to have the opportunity to provide input about those decisions to be made in the exercise of the same.

3. In essence, the mother explained during her cross-examination that she sought an order for sole parental responsibility because the relationship between the parents had been quite difficult and she had felt that, at times, the father had used the parenting orders more as a weapon against her than as a tool to assist them to co-parent. I accept that she gave her evidence honestly about how she appreciated the father’s approach to the terms of the orders and about the impact of the same on her. She said he had threatened to “breach her” repeatedly and that such threats had caused her and friction, which wasn’t good for the children or her mental state. I accept her evidence in this respect. She also said that, whilst she was willing to communicate with the father about the children, she found it a very difficult thing at times: she said that whilst there were times when they could get along quite amicably and the father would be very polite, there were other times when it was very difficult to communicate with him and she could never be sure what mood he would catch him in. Again, I accept that the mother was truthful in recounting her experience of the parental communications.

4. I consider that, given the father’s admitted actions, the presumption that it is the children’s best interests that their parents have equal shared parental responsibility for decisions about their major long term issues does not apply. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the children’s best interests being the paramount consideration).[117]

   [117]        Cox v Pedrana (2013) FLC 93-537 at [19]; See s 60CA and s 65AA of the Family Law Act 1975 (Cth).

5. Ms J said that, if there was no positive communication occurring between the parents, then sharing parental responsibilities becomes very difficult. I accept her evidence in this respect.

6. I am not persuaded that these parents are likely to be able to make decisions about major long-term issues for the children jointly, as they would be required to do if an order for equal shared parental responsibility is made. I am not persuaded on the evidence from each of them about the state of their co-parenting relationship, their views of each other as people and parents that they are likely to be able to engage in positive communications or more than only very intermittent and limited positive communications about issues relating to the children. I think a requirement that the parents reach decisions jointly is much more likely than not to cause significant stress for the mother, in particular, and is highly likely to have the very real potential for there to be a stalemate about a particular issue. 

7. Consequently, I consider that an order which accords to the parent with whom the children will primarily live sole parental responsibility for major long term issues relating to the children – in the manner outlined in the Orders set out at the commencement of these Reasons and accompanied by the requirement to ask the other parent for input into the same and to take such input into account – is an order which is in the children’s best interests. 

Living with and time orders

1. Given that I have concluded that E would be at an unacceptable risk of harm if she was to spend unsupervised time with her father, I am persuaded that it is not in her best interests that she live primarily with him. I am also not persuaded that it is in the children’s best interests that they be separated from each other such that E remain living with her mother, whilst the boys move to live with the father. Whilst the mother has certainly demonstrated some (on occasion significant) difficulties and incapacities in her past management of the children, I think it likely that, with ongoing support and the conclusion of these proceedings, her capacity to discharge the responsibilities of parenting the children adequately enough will continue to improve. I also accept that she has now done the majority of the children’s parenting and I do not doubt that she strives to be the best parent that she can be. Consequently, I have concluded that it is in the children’s best interests that they live with the mother.

2. Ms J said that, even if there was a positive finding that the father sexually abused E, the fact that the children enjoyed their supervised time with him and looked forward to it militated against ceasing their time altogether. She thought that a continuation of the time was a positive thing, provided that the children could be protected from the risk by a level of supervision: that is, her opinion was that the children’s time with their father should continue, but this needed to occur in circumstances where the children were safe and they could be closely monitored. Ms J thought it important for the children to maintain some sort of relationship with their father, provided that the risk of harm to them was minimised and that the interaction that was occurring was providing them with a positive benefit or having a positive effect on them. I accept the general tenor of her evidence in this respect.

3. Ms J also said that supervised time between the children and the father was appropriate if the Court found (as I have done) that the father posed an unacceptable risk to E.

4. Ms J also opined that, given that the boys had already made comments to the effect that it was E’s fault that they were having only supervised time with their father, ceasing their time with their father altogether had the attendant risk that E might be subjected to even more comments by her brothers to the effect that the cessation was her fault. That is, such a result could have a significant detrimental effect on the relationship between E and her brothers. I am not in any way persuaded that this would be something that is in any of the children’s best interests.

5. I also note that Ms J did not support there being two different care regimes for the two boys on one hand and E on the other: that is, she did not support a parenting regime where the boys spent unsupervised time with the father and E spent supervised time with him. As I understood her evidence, she explained this opinion on the basis that she believed that such a regime would likely segregate the children, create difference between them and have the very real possibility that E might come to think that she had done something wrong and that was the reason why her time with the father was supervised while her brothers’ time was not. I accept her reasoning and her evidence in this respect.

6. The imposition of supervision over any child’s time with a parent on an indefinite basis is something which must, in one sense, be considered to be something of a last resort. This is because of the limitations inherent in the same.

7. Whilst I am, of course, cognisant of the various decisions of the Full Court of this Court in which it has been remarked that long term indefinite supervision orders are not (generally) in the best interests of children, such comments clearly cannot override the statutory imperative to make, in every case, those orders which, in the particular circumstances of the case, are determined to be in the particular children’s best interests.

8. In concluding that an ongoing order for supervision over the children’s time with the father is, at this time and in this case, that which is in the children’s best interests, I have particularly considered E’s age, the past comments which have been directed toward her by her brothers, the importance of not creating a situation in which E may come to think that her statements about her father’s behaviours toward her have not been heard, the importance of not suggesting to the boys that their assertions that E lied and made up her statements about her father’s behaviours toward her had substance and the importance of supporting the sibling relationships.

9. In determining that it is appropriate that the father bear the costs of the supervision of his time with the children, I have taken into account that the mother is almost totally responsible for meeting the children’s day to day expenses and does so with only limited contribution by the father by way of minimal child support payments. I am confident that, of the two parents, he is much more likely to be able to acquire the funds necessary to meet such costs than the mother who will remain primarily engaged in the day to day parenting of the children.

10. I note also that Ms J deferred to Mr B’s recommendations about what would need to occur before supervision of the children’s time with their father was removed. That is, she accepted and joined in supporting the suggestion that in order for that to occur, it would be preferable if the father was in a stable relationship, that he had participated in some offender acknowledged therapy and that further work in terms of protective behaviours had been done with E.

11. For the reasons expressed, I conclude that the orders set out at the commencement of these Reasons are those which are, at present, in the children’s best interests.

I certify that the preceding five hundred (500) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 May 2018.

Associate:

Date:             2 May 2018