Bramford and Ainslee

FAMILY COURT OF AUSTRALIA

BRAMFORD & AINSLEE

[2016] FamCA 463

FAMILY LAW – CHILDREN – Best interests – Whether the child has been sexually abused by her father – Whether the father presents an unacceptable risk to the child in his unsupervised care – Whether the father should have contact with the child – Where evidence of the child displaying aggressive and sexualised behaviour – Where the child has made numerous disclosures to child care staff.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA and 60CC

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Bramford

RESPONDENT:

Mr Ainslee

INDEPENDENT CHILDREN’S LAWYER:

Doris Chan

FILE NUMBER:

BRC

9332

2011

DATE DELIVERED:

3 June 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16, 17, 18 & 19 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carmody

SOLICITOR FOR THE APPLICANT:

Raniga Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Murray

SOLICITOR FOR THE RESPONDENT:

Saunders & Co Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Doris Chan

Legal Aid Queensland

Orders

That all previous orders and parenting plans be discharged.
That the mother shall have sole parental responsibility to make all the decisions about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth) (“the Act”), for the child H born …, 2007 (“the child”).
That the mother shall also have sole parental responsibility for all the daily decisions that have to be made about the care, welfare and development of the child.
That the child shall live with the mother.
That the child shall not spend any time with the father and the father shall not communicate with the child other than as provided in paragraph (6) hereof.
That each of the mother and the father shall keep the other informed at all times of a postal address to which he or she can write to each other and the father shall be permitted to send letters, cards and/or gifts to the child at that postal address.
That the mother is restrained and an injunction is hereby issued restraining her from bringing the child into contact with the mother’s stepfather, Mr G.
That the mother shall ensure that the child continues to be enrolled at and attend the State School that she is currently attending until the child’s completion of primary school and the mother shall within seven days of receiving a sealed copy of this Order provide a copy of the Order to the child’s school.
That the mother shall remain living in the catchment area of the school at which the child is currently enrolled, whilst the child remains at primary school.
That the child shall continue to attend upon the following medical practitioners, counsellors and psychologists until such time as she is discharged from regular attendance and review by the relevant practitioner:
(a)Dr Q, Paediatrician;
(b)Dr I, General Practitioner;
(c)Dr J, Clinical Psychologist; and
the mother shall use her best endeavours to ensure that the child attends on these experts on a regular basis as and when required by the expert for review and the mother shall use her best endeavours to follow and comply with all of the advice and recommendations of each of those experts.
That the mother shall also continue to attend upon Ms K, psychologist, for counselling for as long as Ms K recommends and the mother shall use her best endeavours to follow and comply with all the advice and recommendations given by Ms K.
That the Independent Children's Lawyer shall have the leave of the Court to publish to the Queensland Department of Communities, Child Safety and Disability Services, copies of the following documents:
(a)the Family Report of Ms B dated 23 July 2014;
(b)the witness statements tendered into evidence of Ms L, Ms M, Ms N, Ms O (aka O), Dr P;
(c)copies of any other relevant documents under subpoena before this Honourable Court, pertaining to concerns for the welfare of the child including allegations of sexual abuse; and
(d)a copy of this judgment.
That the mother shall within seven (7) days of the issue of the sealed Order of the Court, provide a copy to the child’s school, Dr Q, Dr J and Dr I.
That the Independent Children's Lawyer shall be discharged.
That the father shall forthwith within seven (7) days of the date hereof cause the child’s name to be registered for private medical insurance cover at his cost, such cover to include coverage for the child’s counselling costs and he shall notify the mother forthwith of the registration and the claim number for the child.
That the father shall pay the costs of the child’s ongoing therapy with Dr J and he shall be entitled to claim and retain any Medicare and private health insurance rebates that are payable in respect of such therapy.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), 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 hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9332 of 2011

Ms Bramford

Applicant

And

Mr Ainslee

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

At issue in this five day trial that I presided over in February last year was the future of co-parenting of the child H born in 2007, now 8 years old. At the start of the trial, the father was seeking orders that the child move from the mother’s principal care to his. At the end of the trial, his counsel informed the Court that the father conceded that the child should continue to live with the mother and that the mother should have sole parental responsibility for the child. The contest between the parents was, by those concessions, then reduced to one relating to the time, if any, that the child should spend with her father.
Central to the determination of the proper parenting order to make in respect of the child’s time with her father is a need to consider whether the child has or has not been sexually abused by the father or, in the absence of a finding either way on that point, whether there is an unacceptable risk of her being sexually abused by him in his unsupervised care. The mother asserted, in her case, that she believes that the child has been sexually abused by the father. Her case gained support from the Independent Children’s Lawyer (“the ICL”) who submitted that the Court should find that the child was sexually abused by her father, whilst the father denied all such allegations.
In what were almost rare circumstances in this type of case these days, each of the parties was represented by solicitor and counsel at the trial.
This judgment has, of course, been reserved for a long time since mid-February last year. That is a regrettable fact. Long delays in delivering judgments in difficult parenting cases adds to the uncertainty in the lives of the parents, their extended families and in the life of the subject children that being involved in litigation in this Court already creates. As I have said relatively frequently lately, I attribute the length of time it has taken me to write this judgment to the length of the trial, the length of time actually needed to sit down and consider all of the evidence and the submissions and then to write these reasons, but most particularly, I attribute it to the obligation to hear and determine so many other equally long and difficult matters in the period of time during which my judgment has been reserved.

Factual Background

The father is 55 years of age. He was born in Brisbane but grew up in Europe in a family in which his father was violent towards his mother and “very strict” and even violent to him. When he was 20 years old, the father, his mother and his sister, left Europe and returned to live in Australia. He has not had a relationship with his own father since then. Soon after arriving back in Australia, he met and married his first wife, to whom he remained married until 2006, when he met the mother in this case. He and his first wife had a son who is now a young adult.
The mother is 34 years of age. She was born in Brisbane and her parents separated when she was about two or three years old. Her mother had two other children to two different fathers. She lived with her mother after her parents’ separation until she was about 11 years of age and then she lived with her father for a few years. She was in a relationship with a man, Mr Q, for about six years from when she was a young adult until not long before she met the father. She and Mr Q have two children, R and S (now aged 14 and 12). They have lived with the mother since she and their father separated. The mother said they continue to spend time with their father by agreement.
The mother and the father met in 2006 when the father went to the mother’s home in a work capacity. They commenced a relationship soon after meeting and began living together as a couple in T Town. Their daughter, the child, was born in 2007 and they married in 2008 before separating in early 2009, after having moved south to Brisbane.
There is disagreement between the father and the mother as to the exact factual circumstances of their final separation and whether they were living separate and apart under the one roof in their home at Suburb U in early 2009 or whether they were still a couple until closer to the middle of the year. The mother asserted that they separated in January 2009 and lived separate and apart under the one roof until April 2009, where after, she says they moved apart. The father asserts separation actually only occurred around June that year, in 2009. What there was no dispute about was the fact that there was a terrible incident involving one of the family’s pet dogs in April 2009. The dog was euthanized by a veterinary surgeon after suffering a serious penetrating knife wound at the hands of the father. The father was charged with and convicted of an offence of animal cruelty arising from the incident. Although the father asserts that he merely threw a knife at the dog from several metres away and that it penetrated the dog’s body, the veterinary surgeon expressed the opinion that the dog’s wound was not consistent with such an assertion but rather was consistent with the dog having been stabbed with some force.
The evidence about the matter is that the father was mowing the lawn at the family home when he became quite angry at the dog’s response to the mowing, which was to flee from the yard into the house and to urinate on the floor inside the house. He then went and took a knife from the kitchen, having allegedly threatened to kill the dog (which threat the father denies making). Subsequently, the dog was found wounded and bleeding by the mother’s son, S, where-after the mother contacted the father’s adult son and daughter-in-law and reported the incident to them. They attended at the family home and then contacted the RSPCA who called the police to the family home. The wounded dog was taken to the vet by the father’s daughter-in-law and the mother. The dog was later put down, the family apparently not being able to afford to pay for the surgery that was necessary to try to save the dog’s life.
Although convicted of animal cruelty, the father has always maintained that he did not actually stab the dog but rather that he had simply thrown the knife at the dog from a distance. Having regard to the expert opinion of the veterinary surgeon, the father’s evidence is difficult to accept.
Physical separation actually occurred sometime after the incident with the dog. There is no apparent dispute that the father sent the mother a text message soon after, telling her he was sorry for what he had done and what he was about to do. Subsequent to that, around the beginning of June, 2009, the father overdosed on prescription medication in an apparent unsuccessful suicide attempt which he has conceded did occur. In fact, there is evidence in the form of a letter from a psychiatrist the father saw around this time that referred to managing the father’s “anger and bouts of depression that have resulted in suicidal behaviours”.
The psychiatrist said the father had “made a serious suicide attempt recently when he drank 1800 mg of Avapro which led to an overnight stay in [V Hospital]”.
Later in 2009, the mother commenced a new relationship with a man, Mr W. She fell pregnant to him, giving birth to their child, X, in September 2010. At trial, she was no longer in a relationship with him.
There was not a lot of evidence adduced by either party as to the factual circumstances that transpired between the time of their separation in Suburb U and 2011. However, there is evidence that the Department of Communities, Child Safety and Disability Services (“the Department”) received notifications of concerns held for the child, H, on 7 and 8 September, 2010.
The first of those reports included a whole range of notified concerns, including that the mother “has disclosed” that her current partner (Mr W) had emotionally abused and raped her. Other concerns reported were that the child, H, was having contact with her father every second weekend at a caravan park where he was living; that the mother had witnessed the father kissing the child, H, and putting his tongue in her mouth; that the mother was having difficulty managing the child’s increasingly difficult behaviour; that the mother had disclosed that her two older children have contact with their father which is positive; that there was an “extensive history of domestic violence” in the relationship of the mother and the father; that the child is fearful of her father; that the mother is fearful of the father; that the mother was sexually abused as a child; and that the mother believed that the father was playing computer games instead of supervising the child when she spent time with him.
An apparently different notifier made the notification on 8 September, 2010. The Department’s record of that notification reflects provision of the following information, amongst other things:
·That the mother had separated from the father after he attempted to commit suicide in front of the children;
·That the father had killed the family dog;
·That the father had threatened the mother’s life if she took his daughter away from him;
·That the father had broken the mother’s finger during an argument that turned violent;
·That the father had perpetrated a lot of emotional and mental abuse against the mother in the presence of the children;
·That the mother had allowed the father to have fortnightly contact with the child on the advice of her solicitor;
·That a family member had reported that when the child spends time with the father he lets her run around the caravan park unsupervised;
·The mother was said to be seeking counselling for the children from Bravehearts;
·That the mother had seen the father kissing the child on the lips and sticking his tongue in the child’s mouth when they were still in a relationship and that when she challenged him on the behaviour he had said “it’s just a game”;
·That since the child had been having contact with her father on weekends her toileting had regressed;
·That after having contact with the father, the child’s vagina is really red, has a “funny” smell and she states “ouch” and “hurts” when she grabs her vagina;
·That the child is displaying more aggression and frustration than usual and is now “really angry”;
·That before she goes to spend time at her father’s, the child becomes quiet and withdrawn and changes rapidly;
·That the child’s day care providers had raised these concerns (presumably some of the previously mentioned ones) with the mother;
·That physically the child is observed to have had a bruise after time with her father, as well as cold sores in her nose and to be covered in mosquito bites;
·That the father has been observed to drive a car with the child in the front seat without a seatbelt on; and
·That the child was demonstrating resisting behaviour when being collected from day care by her father.
A Departmental officer is recorded as having contacted the child care centre that the child was attending at that time on 8 September, 2010 and spoken with staff about the child. The notes of the conversation record that the child’s behaviour was regarded as relatively normal for a three year old child; that she does display aggressive behaviour at times; that she presents as mostly hygienic but does have head lice that her mother reports persisting despite treatment; that the child had been reported as wetting herself more in recent times; that the child presents as really upset when she knows her father is going to be collecting her and sometimes resists getting in the car with him; and the child’s urine was noted to have had a really bad smell.
The Departmental records reflect recommendations to the notifier to assist the mother to access legal advice, to access counselling and protective advice from Bravehearts and to seek medical advice in respect of the child’s alleged genital soreness and regressed toilet training.
There is no more Departmental involvement with the family until 2012.
It appears that the consensual arrangements for the child to spend regular time with her father began to become troublesome in 2011 and that the mother and the father were getting advice and representation in their dealings with each other from solicitors at around that time. In September, 2011, they attended a parenting conference convened by the Legal Aid Office which apparently resulted in an agreement being reached between them. A written document taking the form of and being called “Consent Orders” was prepared and apparently signed by the mother and the father and their solicitors. It was to be submitted to the Court with a view to becoming a Court order. Before that happened, though, the mother refused to sign the application for consent order, citing concerns that she had felt pressured to reach such an agreement at the conference but did not truly consider its terms as being in the child’s best interests.
Nevertheless, although a Court order was not made, the child started spending time with the father apparently in accordance with the terms that were contained in the written document, including from after day care every second Wednesday until 3:00 pm the following Sunday evening and also for half of the holiday periods.
There is no dispute that the child was placed in day care on a regular and long-term basis from a fairly young age, even when the mother and the father were still in a relationship. After separation, the mother was engaged in full-time employment for some time and, therefore, needed to use child care facilities.
The mother gave evidence that from as early as October 2011, soon after the arrangements agreed upon at the parenting conference were put in place and being adhered to by her, the staff of the child care centre began informing her of concerns about the child’s observed behaviour at the child care centre. The mother said that the child had become disruptive, naughty and difficult to manage. She said that early in 2012, one of the staff at the child care centre, Ms L, told her that the child’s behaviour had been getting worse and that the child was also demonstrating over-sexualised behaviour with an apparent knowledge of things beyond her age of development. The mother said that Ms L told her that staff members were very concerned about the child and she gave the mother an example of the child’s observed behaviour. She said the child had lay down on the floor and pulled her “knickers” to the side and started playing with herself in front of the other children.

The records of the JJ Medical Centre that were tendered into evidence also reflect concerns, noted by the doctor, the mother was expressing to him about the child’s behaviour and, particularly, from around January 2012, that the child care centre staff were said to be “now advising of their concerns”.
Statements by child care centre staff members, Ms L, Ms O and Ms N, as well as the former director of the centre, Ms M, were adduced into evidence and they also gave oral evidence at the trial. Their evidence was very significant, in my judgment.
Ms M said that the child’s behaviour could be aggressive towards other children and staff. She said the child used bad and abusive language and was physically abusive to other children. She said that towards the end of 2011 and into early 2012, staff members were reporting to her that they were observing the child to display inappropriate sexualised behaviours such as exposing her vagina and bottom to the other children at the centre. Ms M recalled an occasion around that time when she actually saw the child through the window with her shorts and underpants down around her ankles and touching her vagina, whilst a number of other children were around the same play area. When instructed to pull her pants up, the child is said to have acted as if “caught out”, but then complied. Ms M said she notified the mother of what she had seen and the mother presented as “embarrassed and apologetic”.
Ms M said that she knew of the parenting arrangements whereby the child would go on Wednesdays in each alternate week with her father to spend time with him. She said that, initially, she observed that the child quite willingly went with her father on those Wednesdays but that “at around the same time as when we began to notice the sexualised behaviours, I also observed that the child started to refuse to go with her father on a Wednesday and indeed would become upset when she saw him.”
Ms M said that she observed the child to become upset and distressed when reminded that her father would be picking her up and she would cry and say she wanted to be with her mother, not her father. On the days when the child was then to go with her father from the centre, Ms M said that the child was “invariably unhappy, moody and remained so for most of the day”. Ms M recalled a particular day when the father was unable to successfully calm the child who was screaming and crying hysterically, saying she did not want to go with him.
Ms N said in her statement that she had the child in her group from early 2012. She said that she noticed that the child had quite a few issues with her behaviour, being aggressive and disruptive, and using horrible language for a child. She said that the child would hit, kick, bite, scratch and punch staff members and other children. She said that after one particularly bad behavioural episode she told the mother about it and the mother gasped and rolled her eyes “as if in frustration”. Ms N said the mother appeared overwhelmed and said she thought there was something wrong with the child but that the doctors had not been able to diagnose anything. Ms N said she told the mother that in her opinion the child’s problems were behavioural, rather than medical.
Ms N also said that she observed the child initially to happily go along with her father when he collected her but that by mid-2012 her reaction to going with him had changed drastically. She became highly distressed at going and would be anxious and distressed throughout the day knowing she was going with her father that day. Ms N said that on the last few occasions that the father turned up to collect the child, the child screamed all the way to the car park, screaming that she did not want to go with him. Ms N observed the father pick the child up and put her over his shoulder and carry her to his car.
As for sexualised behaviour, Ms N said that the child sometimes took a friend to a quiet corner of the yard of the centre and would then expose herself by pulling her underpants and shorts down. She is said to have asked the other children to do the same. Ms N said she caught the child doing this about five separate times over a three month period.
Ms N described the occasions when she saw this happening and went on and said that she explained to the mother when she arrived to collect the child what had happened. She said that the mother replied that she would speak to the child to reinforce the idea that it was unacceptable behaviour.
Ms N said that on one occasion one little boy said that the child was kissing him “down there” and the child said “I was kissing him down there, just kissing his belly”. Ms N said the staff discussed the problem and determined to watch the child all the time. She said that she again spoke with the mother who, she said, assured her that she took it all quite seriously and would speak with the child.
Another staff member, Ms O, said that she was Ms N’s assistant in her group. She corroborated most of the observations of Ms N.
Ms O said that she recalled reading a book to the child on one occasion when the child said to her “I have a bed at mummy’s and daddy’s house” and she said to Ms O that her bed was pink. Ms O asked her if she slept in the bed by herself and said the child replied “Yes, because I’m a big girl but I don’t at daddy’s house”. Ms O said that she said to the child “but you said you have your own room at daddy’s house” to which the child responded “I have a room at daddy’s house but I sleep with daddy”.
Ms L said that she also had the child in her group at the centre for a time. She mentioned similar behavioural issues observed in the child as the other staff. She said that she spoke with the child’s father a few times about the child’s behaviour. She said that she recalled the father saying to the child after she (Ms L) had told him of her behaviour, “this is not the way to behave”. She said she overheard the father say to the child that her behaviour was “your mother’s fault”.
Ms L said she also spoke to the mother about the child’s poor behaviour. She said on a couple of such occasions, the mother burst into tears.
Ms L said that she had observed the child during rest times when lying down, “stick pencils into her vagina” and on another occasion to stick a Barbie doll on her vagina. She said she saw the child pull her panties “away from her body and stick the doll down the front of her undies and proceed to rub the toy on her vagina”. On other occasions, she observed the child to be touching and rubbing her vagina with her hands and lying on her stomach with her hands between her body “moving in an up and down motion on the bed as if .. imitating a sexual act.” She said that on another day she observed the child to pick up two dolls and place them lying on top of each other and then move them up and down against each other whilst laughing. Ms L said that she asked the child why she was doing this to which the child responded “because that’s what daddy does”. Ms L said she asked the child “did you walk in on daddy and his girlfriend” but the child did not respond.
Ms L then said that only about ten minutes later that same day she saw the child take a teddy bear and rub the teddy’s paw on her vagina and Ms L saw that the child had no panties on under her dress. Ms L said that she then went to the child and asked her why she was doing this to which the child, a little sullenly, replied “that’s what daddy does to me”. Ms L said that she responded to the child “no, daddy wouldn’t do that” to which the child then responded with “some frustration and anger” with the words “yes he does, yes he does”, getting louder and louder as she said those words.
Ms L also said in her statement that she observed the child, on a couple of occasions, follow little boys into the toilet. One of those days, she said, a little boy came out and said to Ms L “H says daddy’s pee pee is bigger than yours” (referring to the little boy). The little boy said that the child had kept looking at his “pee pee” whilst he was going to the toilet. Ms L said that when she later asked the child about this, her response was simply “Well, he was standing beside me”.
Of particular note, in my view, is Ms L’s evidence that she spoke with the father on two separate occasions (no dates given) about the concerning sexualised behaviours that she observed in the child. She said that he replied to her saying “Kids will be kids”. She specifically stated that she told the father about the occasion when she saw the child lying on her stomach during rest time, playing with herself and moving as if in a sexual manner. She said she also told him of the child rubbing her vagina with the teddy’s paw. She said that the father said to her “kids see things on TV and are simply acting them out”.
Ms L said that she recalled Ms M telling her at some point that the mother had informed her that the child may have been sexually assaulted but that Ms M did not inform Ms L who the alleged perpetrator was. Ms L said that one afternoon the child was waiting to be picked up by her father and Ms L saw the father walking in. She said she told the child to wait where she was whilst she (Ms L) spoke with her father. She said she approached him to talk about her concerns about the sexualised behaviour she was observing and he replied “kids will be kids” and suggested that perhaps the child had seen certain things at her mother’s place. She said that the father told her that the child did not exhibit such behaviours at his place.
Interestingly, Ms L said that had been “a couple of weeks before the child moved from being in my group (in 2010)”.
Departmental records reflect that the father notified the Department or the police on or around 30 April 2012 that the child had disclosed to her grandmother (presumably his mother) that she had been touched and kissed “down below” by her half-brother, S. The father notified that the grandmother then told him and he notified the police. He notified that the child had provided the same information to him and further said that S had placed a rope around her neck and placed her hand behind her back.
The records adduced in evidence reflect that the child was interviewed by a police officer attached to the Child Protection and Investigation Unit at the Suburb Y Police Station on 28 April 2012, having been taken to the police station by the father. The interview was video recorded and the DVD of that interview was made an exhibit at the trial and played in Court. I have watched it again recently.
Four year old H spoke and engaged with the police officer and answered his questions. Early in the interview she volunteers that her brother put a rope around her neck and that it hurt a little and that he was putting it behind her back as well. The child indicates that S had said “don’t tell mum” but when their mother, who was outside, came inside, she said “Take it off your sister right now” and that S had said “alright mum”.
The policeman puts to her that he has heard that S kisses and licks her and asks her does he kiss and lick her. The child scoffs “he don’t want me to kiss him”. The police officer asks her does her brother touch her. She nods affirmatively without verbally answering. The officer asks her to tell him about S touching her and she says “I don’t know”. The officer asks her where S touches her and she says “everywhere”. Then she says “on my legs” and gestures towards her right leg. She then corrects him when he says “on your lips?” apparently having misheard her, and she says “only on my legs”.
When the police officer says he has heard that S has touched her “down below” and asks her if that is right, the child nods affirmatively but then says “only here on the leg”. The officer asks her to show on a drawing of an outline of a child where S touched her and she identifies her knees, her hand, her thumb, her shoulders and her hair, but not her genitals or her groin. The officer asks the child if S has ever touched her “rude part” and she scoffs “noooo”. The officer then asks her to identify on the drawing what is her “rude part” and she apparently identifies that correctly as the genital area between the legs. He then shows her another picture of the outline of a child’s body from behind and asks her to identify any other rude part. She quickly points to the bottom and says “the bottom, the bum bum”.
He then converses with her about protective issues and asks her who she could tell if anything scared her and she says “my daddy, and my mummy”. She soon says “I’ve had enough” and the interview is then finished.
The Departmental record reflects that the child disclosed that she had been “touched and kissed down below”, but having seen the video recording of the interview I do not accept that as a correct description of what happened in that interview.
The record reflects the father reporting that he and the mother had 50 per cent custody with a 3 day/4 day living arrangement each week, reversed as between them from week to week. That was incorrect. The record reflects the father reporting that he had concerns about the mother and would be applying to the Court for full custody of the child. He only did that after the mother commenced these proceedings.
Another part of the Department’s records reflects another notification was received on 30 April, 2012 in which the notifier told the Department that about a month before the notification the child told the father that “during a bath a few months back, S peed in the bath and all over the child”.
The record reflects that neither the police nor the Department took the matter any further at that point.
There is no suggestion in the evidence that the father told the mother or any of the child care centre staff anything about these alleged disclosures.
H’s treating General Practitioner’s notes of 18 July, 2012 refer to behavioural problems, including “trying to strangle a choild [sic] at preschool”, “difficult behaviours at home”, “talks to herself constantly”, “destructive and aggressive behaviours”, “won’t settle at night”. The doctor’s notes conclude that day with the observation that the child is being referred to Dr Q (a paediatrician) for opinion and that it is likely she will need to see a child psychologist as well.
The paediatrician, Dr Q, saw the child on 8 August, 2012. He reports that she has “obstructive sleep apnoea and needs a tonsillectomy”. He also says “she obviously needs intervention through a psychologist”. He says she “has developmental delays, and there are clearly environmental concerns”. He expresses the view that the child needs “consistency at home” and “intensive psychological intervention”.
Records from the child care centre reflect a note of a conversation had between a staff member and the mother on 10 August, 2012. The mother is reported to have told the staff member that she had been to a specialist appointment for the child and that they are “proceeding forward” as the child “does have behavioural problems as well as other issues”. The mother is noted to have said that she told the specialist that when she and the father were married she would “see him kiss the child when she was about 3-5 months old and her other children and stick his tongue down their throats.” The note records the mother apparently telling the staff member that he “specialists” asked the mother if she suspected the father of “interfering with the child” and that the mother had said “yes” but that she could not make an “accusation if she had no proof”.
The child care centre records reflect that the child was collected by her father on 15 August, 2012. She was observed to be fine as she was leaving with him, but crying by the time they had reached “the hallway” and he was observed to be carrying her at that point.
If the child stayed with her father pursuant to the schedule consensually in place at that time she would have been with him until Sunday evening, 19 August 2012.
A note of the child care centre’s records says that on Tuesday 21 August 2012, the child’s behaviour was poor and when being spoken to by a staff member she started telling the staff member “you’re a bum bum dickhead” and “you’re a bum bum bitch”. She continued despite gentle discouragement and said “you’re a stupid fuckhead” and “you have sex with your boyfriend”. She is recorded as then pointing to her “private” and saying “kiss this”.
The child care centre records also reflect the child wetting her pants on that morning of Tuesday 21 August 2012 and complaining that her bottom was sore and, again, later in the day, when resting, complaining that her bottom and genitals were sore. Very bad behaviour towards other children by the child is also recorded for that day, as is clingy, cuddling behaviour with one of the staff members during which the child is reported to have bitten the staff member on the stomach.
The same records reflect the child telling a teacher on 22 August 2012 that her brother “did this to my neck” whilst she held her hands around her neck. The staff member wrote that she said to the child “Ok, what happened next?” the child is recorded to have said “I cried and told him to stop but he didn’t. Then he got a rope and did it again. I had a red mark here. (pointed to her neck) and here (lifted her top and showed me her belly – no marks were apparent)”. The staff member wrote that she then asked “did you tell Mum?” and the child said “no” as she walked away.
A different note of the centre’s records reflects that the child also wet her pants again at the centre on 22 August, 2012 and again complained of having a very sore bottom. That same note reflects that the child wet her pants again on 23 August 2012. The same note reflects that the child was seen “playing with herself” behind the tree at the centre on the morning of 24 August, 2012 and that she “ignored instructions” when asked to stop. About five minutes later, she “wet her pants badly”.
There is another note of the child care centre records bearing the date 27 August, 2012. It reflects a further conversation between the mother and a staff member and notes the mother informing the staff member that “she had spoken to her solicitor and they were moving forward with an intervention order so the child does not go to dad’s place.”
The child was then seen with her mother by a psychologist, Ms F, on 28 August, 2012 and was seen again on 18 September, 2012 and on 2 October, 2012. Ms F’s notes, emails and a report she wrote to the Department were in evidence, but there was no statement or affidavit from her. The Court was told that she could not, over a long period of time, be located anywhere to give evidence at the trial, even with the ICL engaging a private investigator to try and find her.
Ms F’s notes reveal that the mother told her at the first appointment that the child care centre had reported sexualised behaviour. Some of the behaviour described is set out in Ms F’s notes. Ms F also has a note that appears to reflect that on that first day the mother told her that the child had told her that S had “peed in her mouth”.
The child care centre’s records reflect further bad behaviour and very bad language by the child on 29 August, 2012 and a further conversation between the mother and a staff member that same day. The note refers to the mother telling the staff member that “she was almost finished with the process of the protection order”. The note said the mother “repeated the incident about the tongue down the throat” but that she also then spoke of catching the child push her pants to the side and “she started playing with herself”. It records that the mother also said that she had caught the child sticking pencils into her vagina and that she is aware that the father watched a lot of pornography when they were together and that “maybe the child might of [sic] seen it”.
In her statement, Ms M also said that she has a recollection of the mother telling her one day that she had started taking the child to a psychologist. What Ms M described as “the morning after the child’s first visit to the psychologist”, she said that the mother arrived at the centre with the child who appeared relaxed and her usual self, whilst the mother appeared “upset and shaken”. Ms M said that the mother told her she had just come from the psychologist’s. The mother is said to have told Ms M that she had been with the child and the psychologist when the child made “certain disclosures”, including claims that the father had been touching the child inappropriately and asking her to touch him in his private parts. Ms M also said that the mother had informed her that the child had disclosed that her father had put his penis in her mouth and “made her drink stuff from his penis”. Ms M said she encouraged the mother to seek independent legal advice as to whether the child should continue visitations with her father and she said that the mother was “particularly concerned about the September school holidays when the child was to spend a week in her father’s care”.

Ms M said she contacted the Department to notify them of this information. Departmental records reflect a notification received on 29 August, 2012. By the information provided, it is reasonably apparent, in my view, that it was a staff member of the child care centre who made the notification. It contains much of the information I have already referred to as being within the apparent knowledge of staff of the child care centre as at that date. It includes the assertion that when the father collected the child from the child care centre that same day, 29 August, 2012, the child did not want to go with her father. It includes the assertion that the child care centre staff members have no concerns about the child’s younger sister, the daughter of the mother and Mr W, who also attended the centre.
Departmental staff contacted that same notifier again the next day, 30 August, 2012, and sought and obtained further information around the same subject.
If the child was collected by the father on Wednesday, 29 August, 2012 and stayed with him according to the usual schedule in place at that time, she would have been with him through until Sunday 2 September 2012. The father was living in a house at Z Town at that time.
Departmental records reflect that two Departmental officers and a Queensland police officer went to the father’s house in Z Town on the afternoon of 31 August, 2012 and conducted interviews with the child and also with the father. His new partner, Ms AA, was also present in the home that day. She was also interviewed.
No video recording of the interview with the child seemed to have been made, but notes of the questions and answers were taken and are in evidence.
The child told the officers the names of the people who lived at her mother’s place and they included “[Mr W] – [X’s] father” and his two children, [BB] and [CC], as well as [Mummy], [X], [S] and [R]. She told them that “Nanny and Poppy visit” also. The child was asked what she liked about living at her mother’s place and she said she liked chocolates, ice-creams and McDonalds. When asked what she did not like about it, she is recorded as saying that she did “not want to live there.” When asked why that was, she is recorded as saying that X, S and R are mean to her, say the F word, kick, hit and punch her and scratch. They asked about S and she said he is a boy with spikey hair and likes girl colours. She was asked what she and S do and she is recorded as saying that they go outside and play kicking and soccer.
The interview notes record her being asked what she likes about living at dad’s and the child responding, saying she wanted to stay there as she loves him and she misses him. She was asked what she did not like and she said that she has to sleep in her room there (the room they were in for the interview) with no-one. The notes record her showing the officers her night light there.
When asked if she felt safe there with her dad, she said yes. When asked if there was any time that she did not feel safe, she said when it’s scary, when there are monsters. She was asked who shared her room with her at her mother’s home and she said she did not know but when asked where S sleeps she is recorded as saying that he shares a room with her.
She was asked if anyone had ever touched her body and she said she always says “no, no, no”. She was asked who she would say that to and she said to her friends “[DD], [EE] and [FF]”. She identified that DD is a girl. She said that these friends live up the road, close to dad’s place. The child is recorded as having said that she had been touched everywhere including pointing to her genitals at that time. She told the officers that DD is 15 and lives with her brother and no adults. She said that FF is here too, and EE, who she thinks lives with FF. She said that she does not play with DD, EE and FF anymore as they are mean and she had told her father that. She is recorded as saying that she had seen these friends when living with her mother. She also is recorded as saying that she had told them to stop it (the touching) as she did not like it. She was then asked what she was touched with and she said “with a monster” and then said “a boy that trips everyone in jail like you”.
The same officers interviewed the father in the presence of his partner whilst there at his home that day. When asked if he knew why they were there he told them that his ex-wife was playing stupid games again. The father appears to have told the officers that approximately four weeks beforehand he had surgery and could not pick the child up for her time with him and that he had sent a text message to the mother to tell her this and that she had contacted the Child Support Agency about it. He said that when the mother does not get what she wants he has the police arrive on his doorstep.
One of the officers explained the reported concerns about the child’s sexualised behaviour and the father’s response was recorded as “talk to her mother about it”. He then asserted that the mother has a boyfriend who is always coming and going from her household, seemingly implying that if the child is being sexually abused it could be the mother’s boyfriend doing it. He told the officers that the child had not displayed any sexualised behaviours in front of him.
The father appeared to attribute itchiness or soreness in the child’s genitals to her failing to bathe at her mother’s home and says that his partner, at times, helps bathe the child at his place and he said that after she was bathed the itchiness had stopped, so he had not taken her to a doctor to check the itchiness.
The father pointed out the fact that the child had mentioned about three months before that she had been kissed, whilst she pointed down to her genitals. He mentioned that he had taken her to the Suburb Y police station about this.
The father said that he had not worked for three months but that when he did work his partner looked after the child and he did point out that his mother (H’s paternal grandmother) lived only one street away from them in Z Town.
The notes record that the father told the officers that the child is in child care each Wednesday, Thursday and Friday and that he picks her up on Saturdays, every fortnight. Clearly, that is not factually correct, as he was picking her up each second Wednesday after child care and caring for her until the following Sunday evening.
The father was asked about concerns about the child’s misbehaviour raised with him by the child care centre and he is recorded as saying that they raised concerns with him about the child misbehaving in January. He mentioned biting, kicking, swearing, not listening to teachers. He did not mention any concerns about sexualised behaviour being raised with him.
He was asked whether he believed the allegations made by the child surrounding her being touched in an inappropriate way to which he responded that if she had been touched in a sexually inappropriate manner that the mother’s relationships had to be considered. He then gave the officers information that he clearly presented to them as supportive of his view that men in the mother’s life might be responsible for sexual abuse of the child.
He appears to have told them that he had attempted suicide in 2009, had previously had a breakdown and had been taken to GG Town Mental Health, was medicated on anti-depressants and had been diagnosed with Asperger’s Syndrome. He told them he had been convicted of animal cruelty three years previously and the note says that he claimed he was set up for that.
The father’s partner told the officers that she lives in the home with the father and that she had moved from Country HH and helps the father care for the child. She is recorded as having told the officers that the child had started kissing and licking her back on one occasion in recent times and had said “Mummy, I am sexing with you”.
The mother was interviewed by one of the same Child Safety Officers on 11 September, 2012. The mother told the officer of her observation that the child’s sexualised behaviours had become more “full on” at the start of the year. When asked about an incident involving S “hogtying the child around the neck” she is recorded as having said that the child had been playing a “horsey game” with S in the bedroom and he had “put a ribbon around her neck”. She said she was not present in the room with them so was not sure of exactly what had occurred. She said that the child had also told her that S had urinated on her in the bath, although the mother added that she had never seen him trying to do that.
The officer asked if it was possible that S and the child might touch each other in a sexual manner and the mother responded “God, no”. She said that the children no longer bathe together, save for R and X. She said the children have their own rooms, save for R and X who share a room, it being a four bedroom house.
The mother was asked if she was aware of who DD, EE and FF are and she said they were children who went to the same child care centre as the child.
The mother said a lot of things to the officer that portrayed a very poor, co-parenting relationship with the child’s father.
The mother said she was not living in a relationship at the time and the only time that she had in recent years was when Mr W was living with her.
The mother told the officer that her eldest daughter had been sexually abused as a young child by the son of her (R’s) father’s then girlfriend (since broken-up) and that she had accessed counselling for that.
The mother said that if the child was not in her care whilst at her home, she would be in the care of the maternal grandmother.
The mother is recorded as intending to “gain full custody” of the child and subsequently limit any contact between her daughter and the father.
She is also recorded as having told the officer that she was diagnosed with depression after her youngest child’s birth and that she was medicated for this by her GP who she named.
The child went back into her father’s care on 12 September through to 16 September, 2012.
The mother was interviewed again by a different Child Safety Officer of the Department on 18 September, 2012. She was asked why she had engaged counselling services for the child and she said that her solicitor had suggested counselling and a paediatrician had, after the mother had told them of what had happened throughout her marriage to the father.
The same day, that Child Safety Officer also spoke with Ms N at the child care centre. Ms N is recorded as having said that two and a half weeks beforehand, the child’s sexualised behaviour had been bad. She was pulling her pants down and playing with herself. Ms N is recorded telling the officer that two weeks previously the child was hysterical when her father came to pick her up and there was “sheer terror in the child’s eyes”.
Ms N is also recorded as having confirmed that DD, EE and FF are other children who attend the child care centre and that FF is a child that misbehaves and engages in rough play, too. She said that the child is the ringleader though, with the other children copying her behaviour. She said that the child had told her that S hurts her a lot and had put rope around her waist and neck and pulled tightly.

Child’s significant disclosures to her treating psychologist

In Ms F’s notes of the session with the child that took place on 18 September, 2012, there are some significant disclosures by the child. Ms F says she asked the child if she likes kisses and hugs to which the child is said to have responded “yes”. Ms F reports that she then asked the child where her mum and dad have kisses and hugs to which the child responded that “mummy kisses [her] on the cheek but daddy kisses on the cheek, lips, neck, legs and on her bottom and it hurts when he does that”.
Ms F reported to the Department (in a letter dated 21 September, 2012) that the child was “at this point laying on the floor pointing to her bottom and she showed me where he (the father) touches on her bottom and she then scratched me and said “he does it like this”. Ms F reported the child telling her that she asks her dad to do it because it tickles and she likes it.
Ms F reported that she asked the child why it hurts when her daddy scratches her and she said “daddy touches my bottom and she don’t feel good” She is reported to have also said that she and her dad play tickle games and that she really likes it. Ms F reported that the child then spontaneously lay on her back and grabbed her vagina which she referred to as her “ball nuts”.
Ms F reported that when she asked the child where she plays these tickle games the child told her at her dad’s.
Ms F reported that the child told her that her dad puts his fingers “where poo comes out” and that she does not like it. Ms F reported the child began to lift her skirt up and then to pull her pants down and said that she plays daddy here, whilst pointing to her vagina again. The child is reported to have said “it looks ugly” referring to her father’s penis, that she referred to as his “doodle”.
H is quoted by Ms F as having said “it was ugly because it was soft and hard” and “he throws it in the bin and it has stuff in it”. She is reported as not elaborating on that point, with Ms F saying she did not question her further on that particular point.
Ms F reported asking the child if she touches her daddy like in the game where daddy touches her. The child is reported to have then pulled her skirt up again and again started to pull her pants down before Ms F stopped her and told her they did not do that there. The child is reported to have said that she touches “dad’s doodle”, grabbing herself at the same time as saying “like this” whilst trying to pull her pants across again to reveal her genitals. Ms F reports that the child then was moving her hand up and down and then again said the words “throws it in the bin and it has stuff in it”, adding this time “and it is yucky and ugly”.
Ms F reported the child then standing and telling Ms F that she has “ball nuts like a boy” and that at kindy she was laughing and trying to wee like a boy. Ms F said that once again the child was trying to actually demonstrate how she does that.
Ms F also reported that the child said that “daddy tells me that when daddy tickles me it is our game, and no one else is allowed to play”. Ms F reports asking if mum plays these games or if mum’s boyfriend plays these games, or if her grandparents or anybody else plays them, to which the child responded “no”. She is reported to have gone on to say that it is just for her and daddy.
Ms F reported that she asked the child if she was afraid of mummy or daddy and that the child said that she likes being with mummy and that she likes daddy but did not really like going there (to daddy’s I presume) because he plays the tickles game and “it feels good”. Ms F reported that the child started to scratch her (Ms F’s) leg again, prompting Ms F to ask her to stop. The child is reported to have said “can you feel that?” Ms F reports that she answered “yes, I can. You are scratching me and it is hurting me”. The child is reported to have then said that it is what her daddy does to her, scratching on the inside and outside of her bottom and her “ball nuts”. Ms F reported asking her if that hurt and does she often cry, to which the child is said to have responded “yes and no”.
The mother’s GP’s (the same GP who was treating the child at the time) records adduced into evidence reflect that he saw the mother on 19 September, 2012. His notes record the mother was tearful and distressed and had been sent home from work. She had told him she had been off anti-depressant medication for some time and he advised her to restart it and to come back to him for a review in a week’s time.
The doctor’s notes record that the mother told him that the father had contacted “social service and police” and alleged that she has been sexually abusing the child. She said she had been contacted by “social services” who “are investigating”. She is recorded as saying that the child is seeing a psychologist who she told that the father played a game with her that she was only to play with him. The doctor’s notes raise the question of sexual abuse by the father. The notes record her telling the doctor that she had previously contacted “social services” four times before the birth of her youngest child about the father, but had been told there was insufficient evidence to investigate. The notes record that the mother told the doctor that she “has solicitor and trying to block [the father] having access”.
A Child Safety Officer spoke with that same doctor on 21 September 2012. He confirmed that the child had been referred to Dr Q and that Dr Q had seen her and was concerned about the child’s behaviours and thought she might have autism spectrum disorder.
The GP said that he had been the father’s GP also when the couple were still in an intact relationship. He expressed the opinion that there had certainly been low to high grade domestic violence in the relationship, with the most severe incident being the “stabbing’ of the dog. He said he had not been aware of sexual abuse before this week, but said that the paediatrician felt that the child’s behaviour is exacerbated by stays and visits with her father. He is recorded as having said that he had no concerns in relation to the mother and that all the children were always “well presented and clean”. He said that the child had been different to the other children in the family, always being hyperactive, overly affectionate and clingy.
The mother said in her affidavit filed 22 November, 2012 that Ms F spoke with her about the child’s disclosures made during the session that she had with the child on 18 September and told her that the child should stop having any contact with the father immediately.
In that affidavit the mother did not explain the circumstances as to what she said happened, but she did say that 30 September, 2012 was the last time that the child spent time with her father. She said that after she collected the child from her father’s home on that day she took the child directly to the V Hospital for an examination for suspected sexual abuse. She said in the affidavit that at the hospital she “was advised that it appeared as though she had had a bath and there was no evidence of sexual assault”. I shall return to this event and this evidence a little further on.
The mother was asked questions about the time that the child spent with the father in that late September 2012 school holiday period in cross-examination at the trial. She agreed that the child spent part of the school holidays with her father in late September. It was put to her that she knew that the child was going to go to her father for the holidays and, in reply, I understood the mother to say that she knew before the holidays that the child was scheduled to go with her father for half the holidays but she said that the father had simply picked the child up from the child care centre on a day when the mother did not expect him to. She said “I didn’t think he was going to pick her up when he did”.
It was put to her again that she “sent” the child for time with her father in those holidays, the inference being that she could not therefore truly have believed that he had sexually abused the child; such inference being premised on the idea that a protective parent, acting reasonably, would not send a child to a person for a week’s holiday if they honestly believed that person was sexually abusing the child. The mother again said “I didn’t send her. He picked her up from childcare.”
On the point, Ms N in her statement did say that she recalled an incident where the father had come and picked the child up from the centre one afternoon and, later the same day, the mother had arrived asking about the child. Ms N said that the mother told her that there had been a change in the arrangements and that the child was not supposed to have gone with the father. Ms N said that the mother had not provided the centre staff with any notice of this change and they were not aware of it. Whilst consistent with the mother’s case, it is still not entirely clear if the occasion Ms N is talking about is the time the father collected the child just prior to the first half of the September-October 2012 school holidays.

Although counsel for the mother described the second recorded interview as “inept” in the way it was conducted in addressing her submissions to it, I did not consider it to be ineptly conducted. I simply saw a single police detective struggling to deal with the very difficult behaviours of a little girl, who, I accept, was presenting difficult behaviours across many settings at that time. That the child did not disclose to that police officer that her father sexually abused her does not persuade me that there is no risk in this case. That she did not make disclosures to her mother that her father sexually abused her also does not persuade me that there is no risk. I considered the mother’s oral evidence that the child “always told me that she wasn’t allowed to tell me about what things were happening” at her dad’s place to be credible and a possible explanation for that, in conjunction with the ambivalent attachment issues present in the mother and child’s relationship.
Counsel for the mother also pointed out that there had never been what she described as “an adequate medical examination” of the child for signs of sexual abuse. That seems to be the case. I have heard numerous matters such as this case where expert paediatric colposcopic genital examination has been done. Although, as I am aware, such examination does not produce conclusive evidence proving or excluding sexual abuse in my experience it sometimes assists. It is correct that no such examination was conducted in this case.
I am satisfied on all of the evidence in this case, as Mr C pointed out in his first report, that the following matters relevant to the father are of significance in assessing this matter:
·That he was the subject of abuse and violence from his own father as a child, witnessed his mother being abused by his father as a child and ended his relationship with his father when he was a very young adult;
·That he suffered from depression around the time of the breakdown of his relationship with the mother;
·That he attempted suicide at around the time of separation from the mother;
·That he had lost control of his anger and impulses and stabbed the family dog, resulting in its death, and continues to minimise responsibility for his actions in that regard, including by asserting he was “set up”;
·That he was over a long period of time having lengthy, unsupervised time with the child on their own; and
·That he then sourced a relationship with a woman from Country HH more than twenty years younger than him, who has a single female child one year older than the subject child.
I also consider, as was submitted by counsel for the mother, that there is relevance in the apparent coincidence of the visits by the father’s new partner to his Queensland home and the commencement of a fresh de facto relationship of cohabitation with her and the escalation in sexualised behaviour of the child and the disclosures of the child to Ms F, including reference by the child to sexual activity between the father and his partner as well as the father and her.
As I have already observed, I do not go as far as finding that the child was sexually abused by her father, as the ICL submitted I should. However, as acutely aware as I am of the consequences for this child of a wrong decision either way, after considering all of the evidence in this matter, I am satisfied that permitting this little girl to have unsupervised time with her father would subject her to a real risk of experiencing sexual abuse at his hands. In all of the circumstances, having regard to the child’s best interests being my paramount concern, I am quite satisfied that the level of that real risk is unacceptable.
Accordingly, I will not be making a parenting order that provides for the child to spend unsupervised time with the father.

Should there be any supervised time?

This is always a difficult matter to determine in these cases after an unacceptable risk finding has led to there being no order for unsupervised time.
In this case, the expert, Dr J even said in oral evidence that it is important for a child to know their parent. Whilst I accept that, I immediately am drawn to the evidence that Ms B gave of her opinions about the mother and her capacity to continue to act protectively if the child was seeing her father. Ms B expressed serious concern for the mother’s ongoing capacity in the event that the child was seeing her father on an unsupervised basis. I also perceived there to be a level of concern for the wellbeing of the mother and daughter relationship if the child was seeing her father on a supervised basis.
The evidence satisfied me that the mother and daughter relationship in this case was quite a fragile one and that the mother’s emotional and mental health and her capacities to care for the child and all of her three siblings could very easily be detrimentally impacted such that they could become compromised.
I was given some comfort by the evidence of Dr J that I have already discussed, that suggested there had been improvement in the child’s behaviour, in the mother’s capacities and in the mother and daughter relationship in the few months preceding the trial. Of course, I am unaware of what has transpired in the time since the trial was concluded and my judgment has been reserved and, accordingly, must act on the extent of the evidence adduced at trial. These things cause me to determine that it is in the best interests of the child, as well as her three siblings, to do little, if anything, that might disrupt the delicate equilibrium of care being provided by the mother. I will not make an order for the child to spend any supervised time with the father either.
The parenting order I will make will restrict communication between the father and the child to letters, cards and/or gifts that the father may, at his discretion, send to the child at a postal address that the mother shall keep him informed of. He will be required to keep the mother informed of his postal address as well. In this way, the child, when old enough, should be able to seek out her own contact with her father if she chooses.
The parenting order will restrain the mother from bringing the child into contact with the mother’s step-father, Mr G. The mother indicated to the Court that she would comply with that restraint.
The ICL sought an order that the mother ensure that the child remains enrolled at and continues to attend the same school she is attending until she finishes primary school and that the mother remains living in the same catchment area for that school whilst the child goes to that school. I am readily persuaded that is in the child’s best interests and will include that in the order.
I am also persuaded by the ICL submissions that the child should continue to attend upon Dr Q, the paediatrician, Dr I, her GP and Dr J, her treating psychologist for ongoing therapy. I will so order and I will order that the mother use her best endeavours to comply with and follow their advice and recommendations.
I will make the same orders in respect to the mother continuing to attend upon her own psychologist, Ms K.
The ICL will be given leave to publish material from the trial such as expert reports, witness statements and a copy of this judgment to the Department and they are requested by this Court to keep a watching brief over and to provide assistance, where practicable, to the mother in the provision of responsible parenting to her four children.
The mother will also be ordered to provide a copy of the sealed Order of this Court to the child’s school, Dr Q, Dr J and Dr I.
I am, as should be clear, particularly satisfied of the child’s need for ongoing therapeutic counselling with her treating psychologist. There was evidence about the difficulties involved in maintaining that on a regular basis because of the cost of it to the mother outside the parameters of the Medicare rebate that can be obtained. The father gave evidence about his willingness and capacity to include the child on private health insurance cover. I am satisfied that he should be required to do that even though the child will not be spending time with him. Although his counsel told the Court that the father opposed an order the ICL asked the Court to make that obliged the father to meet the private costs of the child’s therapy with Dr J, I am satisfied that the therapy is vitally important to the child’s welfare and that all should be done to ensure that it continues. I will make orders that require the father to have the child included on private health insurance cover and for him to meet the costs of the child’s therapy with Dr J, with the father to be entitled to claim and retain any applicable Medicare and private health insurance rebates.
I make the orders set out at the commencement of these written reasons satisfied that they are proper and in the child’s best interests.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 June 2016.

Associate:

Date: 10 June 2016

[2016] FamCA 463

3 June 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness