BRIGGS and KERR
[2015] FCWA 54
•13 JULY 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: BUNBURY
PERTH
CITATION: BRIGGS and KERR [2015] FCWA 54
CORAM: THACKRAY CJ
HEARD: 8-10 JUNE, 1 & 2 JULY 2015
DELIVERED : 13 JULY 2015
FILE NO/S: PTW 7031 of 2012
BETWEEN: MR BRIGGS
Applicant
AND
MS KERR
Respondent
Catchwords:
CHILDREN - With whom a child spends time - Sexual abuse - Where the child made “disclosures” of sexual abuse to the mother and she sought orders for the father’s time with the child to be supervised - Where the father denied the allegations and ultimately sought that the child live with him - Where the “disclosures” were found to be unsubstantiated by the child protection authority, the police and the single expert - Where the Independent Children’s Lawyer supported orders for the child to live with the mother and spend unsupervised time with the father - Discussion of the approach to be taken in determining allegations of sexual abuse - There is no reliable evidence to establish that the child has been abused, or is likely to be in the future - There is no “unacceptable risk” associated with him spending unsupervised time with the father - The father should spend gradually increasing time with the child - Orders to be made for the child to live with the mother to be made on an interim basis only to allow her reaction to the Court’s findings to be monitored - Order made for termination of the child’s therapy with a psychologist.
Legislation:
Family Court Act 1997 (WA), s 66C, s 70A(1)
Category: Reportable
Representation:
Counsel:
Applicant: Mr Berry SC
Respondent: Mr Hedges
Independent Children's Lawyer : Ms Padfield
Solicitors:
Applicant: Shaddicks Lawyers
Respondent: Young & Young
Independent Children's Lawyer : CMS Legal
Case(s) referred to in judgment(s):
K v B (1994) FLC 92-478
M v F (2006) 36 Fam LR 519
M v M (1988) 166 CLR 69
Re W (Sex Abuse Standard of Proof) (2004) FLC 93-192
Thornton & Thornton [2015] FamCA 92
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1I am required to determine a dispute about [L], who is nearly six years old. L’s mother believes that L has been sexually abused by his father, and is therefore opposed to the father spending unsupervised time with him. The father denies the allegations and proposes that L live with both parents in a shared care arrangement.
2The allegations surfaced while the mother and father were in the midst of litigation, and after the mother became anxious about the time L was spending away from her. The mother’s concerns about abuse have been found to be unsubstantiated by the child protection authority, the police and the single expert. However, her belief that L has been abused is shared by the psychologist the mother employed to teach L “protective behaviours”.
The parties
3The father is 45 years of age. He lives in [a town in the South West (“Town A”)], across the road from the mother’s parents. He works [in an occupation involving manual labour]. The father lives alone, but has recently commenced a relationship. Between 1991 and 2001, he was in a relationship with a woman with whom he remains on good terms. After that ended, he had an “on-off relationship”, but did not cohabit with the woman, who had five children.
4The mother is aged 43. She also lives in Town A, where she works part-time as a [technician]. Her 11-year-old daughter, [T], lives with her. T is the child of one of the mother’s earlier relationships. The mother is now in a relationship with [Mr W], who regularly stays overnight in her home.
5The mother and father commenced their relationship after the mother moved back to live with her parents after the breakdown of her marriage to T’s father. The mother and father started living together in late 2007, when the mother found she was pregnant. Unfortunately, she later miscarried.
6L was born in August 2009, and was therefore just 21 months old when his parents separated in May 2011. He has since then lived mainly with the mother.
7The father was working long hours, both before and after the separation. He initially had contact with L fairly infrequently during the daytime, but their time together slowly increased, including overnights. In April 2013, a magistrate made orders allowing the father additional time with L, consisting of two consecutive nights in one week and one night in the next week. The mother thought two nights in a row was too much, but her efforts to scale back the time were unsuccessful.
The emergence of the allegation of sexual abuse
8In January 2014, the mother saw L (who was four years old) rubbing his genitals against T. When chastised, L allegedly said “daddy has me do that”. From that point, if not earlier, the mother was on the lookout for signs of abuse.
9In April 2014, L allegedly told the mother that the father had been touching his “doodle”. The mother was very distressed when the Court refused her ensuing request for the father’s time with L to be supervised. On the advice of her solicitor, the mother engaged [Ms X], a local psychologist, who began seeing L regularly to teach him “protective behaviours” and to provide “therapy”.
10In September 2014, L made a “disclosure” to Ms X. The mother was then successful in persuading the Court to require the father’s time with L to be supervised. As a result, since October 2014, L has only been able to see his father under supervision of female relatives, and for much shorter periods.
11The trial was due to start in Bunbury in February 2015, but regrettably did not commence until June 2015. It then could not be completed because Ms X had gone overseas after receiving a subpoena. The proceedings were adjourned to be completed in Perth in July 2015. In between the two stages of the trial, L made a further “disclosure” of abuse, which was said to have occurred during a supervised visit. Acting on the advice of Ms X, and contrary to her own legal advice, the mother withheld L from the father on the weekend before the trial resumed.
Orders sought by the father
12The father sought an order for week-about care when he started these proceedings in 2012. The orders he sought at trial were contained in a Minute filed on 5 June 2015. He proposed there be an order for equal shared parental responsibility and for L to live with each parent on a week-about basis (with a gradual build-up, commencing with alternate weekends from Saturday morning to Sunday afternoon).
13In the course of giving evidence during the first part of the trial, the father appeared to move away from his proposal for equal shared care. Instead, he said that what he had in mind was to pick L up from pre-school on Friday and return him to the mother at 4.30 pm on Sunday each alternate week, with another one-night visit in the intervening week. It was not entirely clear whether the father was positing this as a final arrangement, or as a step toward equal shared care. In his closing address, the father’s senior counsel submitted that it was intended only as a step along the way.
14When the second part of the trial commenced in July 2015, the father sought to amend his application to seek an order that L live with him full-time. This proposal was made in light of the mother’s fresh allegation that the father had abused L even while he was being supervised. Counsel for the mother opposed leave being granted, noting that the trial to that point had been conducted on the basis of the father’s proposal for shared care. I refused leave to amend; however, I made clear that if the mother’s claims of abuse proved unfounded, one option was to make an interim order only, with a view to monitoring the mother’s response to the finding of the Court.
15In response to the application filed by the mother after the fresh allegation, the father sought, on an interim basis, orders for the reinstatement of the April 2013 visiting times and the discharge of the requirement for supervision. As had been foreshadowed at the commencement of the trial, the father also sought an injunction restraining the mother from taking L to see Ms X. The father also sought that the mother attend counselling to deal with what his counsel submitted was the mother’s fixed belief that L has been abused.
Orders sought by the mother
16After the father commenced proceedings in 2012, the mother filed a response seeking permission to take L to live in a northern suburb of Perth. The mother abandoned this proposal only shortly prior to the trial. When she had set out her detailed proposals for the relocation, and notwithstanding that by then the initial “disclosure” had been made, the mother proposed that the father have L every second weekend from Friday afternoon until Sunday afternoon, and for periods of up to four days at a time during all school holidays.
17The orders sought by the mother at trial were contained in a minute filed on 5 June 2014. Like the father, she sought equal shared parental responsibility, but proposed that the father have daytime contact only, for three hours each Thursday and for eight hours on Saturday and Sunday of each alternate weekend. She proposed that the father’s time continue to be supervised by either his sister, his mother or L’s maternal grandmother.
18The mother’s position also changed after the fresh “disclosure” was made just before the second part of the trial commenced. She filed an application seeking an interim order that the paternal grandmother no longer be allowed to supervise the visits. However, by the time the trial resumed, acting on the advice of Ms X, the mother said she would only comply with an order for contact if L was supervised by a professional agency, such as Anglicare’s service in [another town in the South West (“Town B”)].
19The mother’s position changed again by the time the evidence was completed. In his closing submissions, counsel for the mother said that the mother now supported the times mentioned by the father in his oral evidence, which counsel recalled as being on alternate weekends from after school on Friday until 6.00 pm on Sunday and each Tuesday night, to coincide with T’s times with her father. Counsel for the mother said the mother wanted the visits to be supervised “for the medium term”. (Clearly, given the times, the supervision would have to be by family members.) Counsel for the mother further submitted that the father’s time with L should build up to what he described as the “eventual 9/5 outcome”.
Orders sought by the Independent Children’s Lawyer
20The Independent Children’s Lawyer did not provide a Minute. While she said that she did not support equal shared care, she also considered there was no substance in the allegations of abuse and therefore did not see the need for supervision. She proposed that the father’s time with L be gradually increased, starting with full-day visits, then moving to overnights, and ultimately arriving at a regime where L would be with the father on three nights each alternate weekend and one or two nights in the intervening week.
The law
21These proceedings are governed by the Family Court Act 1997 (WA) (“the Act”), which makes the best interests of L the paramount consideration.
22In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a)ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;
(b)protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c)ensuring they receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
23Section 70A(1) requires me to apply a presumption that it is in L’s best interests for his parents to share parental responsibility equally. In this case, the parents agree there should be an order for equal shared parental responsibility.
24The allocation of parental responsibility does not govern the time L will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time”, with each parent would be in L’s best interests. If either alternative is in his best interests, then I must consider making such an order, provided I have found the arrangement to be “reasonably practicable”.
25In determining what is in the best interests of L, I must consider the matters in s 66C of the Act. These are divided into “primary considerations” and “additional considerations”, but the law is now well settled that the “primary considerations” do not necessarily outweigh any combination of the “additional considerations”.
Approach to allegations of sexual abuse
26Family Court judges are regularly required to consider the probabilities of whether or not a young child has been sexually abused by a parent. Their decisions are now routinely the subject of strident criticism by interest groups, including well-meaning, albeit usually self-appointed, “advocates” for children. Whether such criticism is warranted is for others to determine; although see the recent article by the Honourable Richard Chisholm, ‘Misrepresenting the Facts About Family Law Cases and Mental Illness: A Brief Response to Elspeth McInnes’ (2015) 22(3) Psychiatry, Psychology and Law 474, which demonstrates the extent to which some judgments have been grossly misconstrued.
27It should go without saying that any judge who elects to serve in the family law jurisdiction is committed to the welfare of children, and would be repelled at the thought that their decision would place a child at risk of abuse (although there are sadly many cases where all options leave the child at risk). However, public discourse about these types of cases has now sunk to such depths that some judges feel the need to state what should never need to be stated. Following their lead, I adopt these remarks made by Murphy J in Thornton & Thornton [2015] FamCA 92, where his Honour recognised the gravity of the sexual abuse of children:
9.The notion that children might be used (directly or indirectly) for the sexual gratification of adults is wholly repugnant to any sane person. To the extent that it is possible (or desirable) to identify or quantify that, it might be said that particular repugnance attaches – and should attach – to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the Family Law Act 1975 (Cth) (“the Act”), the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined.
28The law to be applied in cases involving allegations of sexual abuse is no different to that to be applied in any other case. However, the High Court has said that “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”: M v M (1988) 166 CLR 69 at 78.
29I also note what was said by the Full Court in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192:
19.The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
30The Full Court also cited with approval these remarks made by Kay J in K v B (1994) FLC 92-478 at 80,972, which I respectfully adopt:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the Court, and of the proper operation of the legal system, will be overlooked in the Court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled “Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made”, appearing in Volume XXVI No. 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
“Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well ... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.”
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
“The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that Melissa was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment ... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.”
31Mr Cris De Rooster, who was appointed as the single expert by the consent of both parties, referred to a great deal of research and academic treatises relevant to the assessment of allegations of sexual abuse. Amongst the publications he mentioned was one he described as “the Amicus Brief”: Maggie Bruck & Stephen Ceci, ‘Amicus brief for the case of State of New Jersey v Michaels presented by Committee of Concerned Social Scientists’ (2005) 1(2) Psychology, Public Policy, and Law 272.
32I have written at some length about the research brought together in the “Amicus Brief” in M v F (2006) 36 Fam LR 519. Although the Amicus Brief was compiled many years ago, Mr De Rooster was not challenged on his assertion that it is still widely accepted as reflecting valid psychological principles. I therefore adopt, for the purposes of these proceedings, [16]-[56] of my judgment in M v F, where I highlighted the research demonstrating the dangers associated with accepting, as the literal truth, “disclosures” made by young children.
33The cases involving allegations of sexual abuse that come before the Family Court are usually those where the evidence is insufficient to warrant prosecution in the criminal courts. In my experience, they also usually involve a young child whose parents have separated when the child is very young. The child’s age is no doubt a major contributing factor to the absence of prosecutions, since there would be no prospect of a jury convicting when the entire case depends solely on claims made by a child whose language skills are rudimentary, and whose maturity is such that he/she is highly susceptible to influence.
34In Thornton & Thornton¸ Murphy J described the principled way in which these difficult cases are dealt with in a society governed by the rule of law, rather than the law applied to “witches” in medieval duck ponds. In doing so, his Honour has echoed the authorities earlier recited about the gravity for the child of an incorrect finding – either of risk, or lack thereof (footnotes omitted):
10.Parenting cases in which allegations of the instant type are made present significant challenges for this court. Not the least of those challenges – and one evident in this case – is the nature, extent and quality of the evidence from which the court is asked to make findings in respect of very difficult central issues.
11.Section 140 of the Evidence Act 1995 (Cth)1 recognises that “the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved”. The gravity of findings bear upon the decision as to whether the evidence as a whole persuades me to the requisite standard that they should be made. Grave findings should not be made by reference to “inexact proofs, indefinite testimony or indirect inferences”. Nor, as Dixon J observed “… circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.”
...
13.The gravity of a finding that a father has sexually abused his children is matched by the gravity of its corollary; a finding that the father has not engaged in behaviour of that type has, if it is erroneous, obviously grave consequences for the children. Equally, a finding of unacceptable risk carries with it very significant consequences for the children and has, axiomatically, a dramatic impact on their relationship with the father as well as ramifications for how the father might be viewed in the future. Again, by way of corollary, a finding that an alleged abuser does not pose an unacceptable risk obviously also has potentially grave consequences for a child if it be erroneous.
35The present case has most of the elements which Murphy J described as typical at [14]-[17]:
•Sinister meaning is attributed retrospectively to earlier statements and behaviours.
•Regular and increasing statements by the child of one sort or another, repeated to family members and others, all of which are said to be indicative of sexual abuse.
•The alleged statements are said to be accompanied by observed behaviours in the child which are causally attributed to the abuse: nightmares; stress accompanied by physical symptoms; fear of the father and repeated behaviour (and statements) to the effect that the child does not want to see the father. Contrary to the axiom familiar to science and statistics, correlation is said to imply causation.
36While these characteristics are common, every case must still be approached without preconceived notions, since many of the characteristics could also be present where abuse has in fact occurred. It is therefore vital that the evidence be subjected to the closest scrutiny. In order to undertake this task, it is imperative to determine the order in which the “disclosures” were made and the context in which they emerged.
The chronology of the sexual abuse allegations
37There was no suggestion in the sworn evidence that the father has ever demonstrated sexual interest in children. In particular, there was no suggestion that the mother had any concerns about the father behaving inappropriately toward L or T prior to the separation. On the contrary, she sometimes left the children in his care, including at night. L was also left in the father’s care when the mother went to Bali with T (and T’s father) for a holiday just prior to the separation. L was still a toddler at the time.
38However, examination of the documents produced during the trial demonstrates that the mother had concerns (or pretended to have concerns) about the father’s earlier conduct which she shared with third parties, but not with the Court. Thus, in the contemporaneous note of an interview the mother had with officers from the Department for Child Protection and Family Support (“DCP”) on 1 May 2014, the following appears:
Worries around [T]. [The father] always had him [sic] on lap. Took [T] to the park.
39When the mother’s lawyer first made contact with Ms X on 16 May 2014, Ms X made notes of what she was told. The relevant note reads:
in past? Inapprop[riate] behaviour w[ith] daughter? 9yo – nothing to say this.
40Notwithstanding that the mother’s lawyer had seemingly not been told of any concerns about T, this is what Ms X recorded when she saw the mother for the first time on 20 May 2014:
Mo[ther] felt? he was spending alone time w[ith] [T]
[T] sat on his lap a lot
[The father] take [T] for walks a lot
felt excluded, but she was busy.
41Notwithstanding what she apparently said to DCP and Ms X, the mother seemed unconcerned about L spending time alone with the father after the separation. Although the parties now have different recollections about the mother’s disposition to allowing L to spend time with the father, there is no doubt the father spent unsupervised time with L, including overnight, with the mother’s agreement. In fact, the mother says the time was initially spent at her insistence.
42Although the mother and father had disagreements about the contact times in the first year or so of the separation, these largely revolved around the mother being concerned that L was not yet ready to spend extended periods of time with the father. The father also considered that it was unreasonable for the mother not to allow him to pick L up on short notice when a gap arose in his schedule, especially when the mother was at work. In my experience, disputes such as these routinely arise when parents separate, especially when their children are very young. However, I agree with the single expert that the father was inclined to push the arrangements along more rapidly than was appropriate for such a young child, and that he did not recognise the difficulties associated with not committing to a fixed regime. On the other hand, I consider the mother could have been somewhat more flexible with the arrangements to ensure L spent more time with his father when he was available.
43In a letter dated 6 January 2012, the father’s solicitors advised the mother’s solicitors that the father was then:
having time with L on an alternate weekend basis with no overnight time. Your client has indicated until such time as there is a court order overnight time will not be included.
44The father’s solicitors proposed in this letter that the father would have L for four nights a fortnight, including from Monday to Tuesday in alternate weeks, when the mother was working. The letter also recorded the father’s hope that agreement could be reached at a mediation which he had arranged to discuss L.
45In their letter in reply, dated 19 January 2012, the mother’s solicitors claimed that the father was “spending time with [L] on more than an alternate weekend basis”, and gave the dates and times of recent visits, none of which were overnight.
46Agreement was reached at mediation in early 2012 to allow the father to spend additional time with L every Friday during the day, as well as each alternate weekend from Saturday afternoon to Sunday morning. The father wanted the times extended, and he commenced these proceedings in December 2012, seeking shared care. The mother countered by seeking to remove L from Town A to “pursue my dream of shifting to Perth with my family to continue my studies”. (By “my family”, the mother presumably meant herself, T and L – since most of the extended family, as well as T’s father, live in and around Town A.)
47Although the father cannot now remember precisely what prompted him to commence proceedings, the parties could not agree at the time about whether he should be able to keep L overnight on the Friday nights on the alternate weekends when he had L in his care. The father considered it undesirable for L to be going backward and forward between the two homes on the Friday and Saturday, and he also said in his Case Information Affidavit that he could arrange his schedule so that he could care for L each fortnight, thereby obviating the necessity for L to spend time in day care at least half the time.
48The magistrate who heard the matter on an interim basis on 15 April 2013 made an order allowing the father to have L from 8.30 am on Friday to 4.30 pm on Sunday each alternate week and from 4.00 pm on Thursday to 5.00 pm on Friday in the intervening week. The mother had argued that L would not cope with being away from her for more than one night in succession, and she maintained that view after the orders were made. She claimed that L was increasingly reluctant to separate from her and from her mother, and that while he had initially been happy to go on the longer visits, she then began to perceive that he was reluctant to spend time with the father.
49On 23 July 2013, the mother took L to see [Dr Y] to discuss her concerns about the extended visits. Dr Y’s notes record a “long discussion about [L’s] overnight stays”. The notes also record the mother telling Dr Y that L “grinds teeth at night, anxious at night at [dad’s]”. The mother asked Dr Y to write a letter “to give to the court”. Dr Y’s letter said that L:
would appear to be manifesting anxiety while staying over night even though he is happy to be at his Father’s during the day. [L] strikes me as a normal 3 year old boy who is perhaps coping with a situation that he is not mature enough to deal with at present. The step up to 3 overnight stays is perhaps a bit quick for him although not unreasonable in the long term as he adjusts to the new circumstance. I would suggest that the number of overnight stays be reduced for the moment and increased only as [L] becomes more comfortable with the new family arrangements of day visits.
50The father says that it was around this time that the mother started sending L to him without his “turtle light”, which he used for comfort at night. She also apparently told L that if he telephoned her while staying with the father, she would come and get him. There was then a period during which the father would allow L to telephone the mother to say goodnight. On some occasions, L would become distressed during the call, and the father would then allow L to go home to his mother. However, acting on legal advice, the father then told L that he was not able to telephone his mother because his phone was broken. Nevertheless, there was at least one time (in October 2013) when the father allowed L to telephone to say goodnight after an outing. L became upset when speaking to his mother, and the father then agreed to drop L back at the mother’s home.
51In December 2013, the mother commenced dating her current boyfriend, [Mr W]. It is unclear when they began sharing a bed while L was in the home. In any event, it was only a matter of weeks after the mother commenced her relationship with Mr W that the first event occurred which the mother later came to associate with L having been sexually abused. The chronology about this was confusing, as the timing described by the mother in her affidavits had to be corrected when she gave her oral evidence.
The “rubbing” incident – January 2014
52In her affidavit sworn on 28 June 2014, the mother deposed as follows:
87.Approximately 3 months ago [L] was rubbing himself up against various people’s legs at a party. When I told [L] to stop he said words to the effect ‘daddy has me do that’.
88.At the time I thought it was strange. I said to [L] ‘You are a big boy now. Do you still have showers with Daddy?’ [L] said ‘Yes’. I said to [L] to ‘Tell daddy that you are now old enough to shower on your own’.
53On this version, the rubbing incident would have occurred in about March 2014; however, in her oral evidence, the mother corrected the timeline by saying that it happened in January 2014. Much more significantly, when asked to explain why it was that she now remembered the date of the incident, the mother volunteered a description of what occurred in terms entirely different to that given in her affidavit.
54This appears, in part, from the following extract from the transcript, which began simply with counsel for the mother drawing my attention to what he was instructed was an error in the timeline in the mother’s affidavit of 28 June 2014.
HEDGES, MR: If we took the three months back from the June 2014, it gets to about March. But the event is probably at the end of January/February. Why that is like that, I don’t know. I don’t know whether I should get this out of the witness or whether we’re happy that that’s the really the state of the evidence.
HIS HONOUR: I think it’s sufficiently important that the witness give evidence about it.
HEDGES, MR: Okay (indistinct).
At paragraph 86 of your affidavit for trial, you say that – you put a heading, Disclosure Of Sexual Abuse:
[L] has made a disclosure against [the father] to the effect that he has been sexually abused by [the father]. Approximately three months ago, [L] was rubbing himself up against various people’s legs at a party. When I told [L] to stop, he said words to the effect, “Daddy has me do that.”
Right. Now, this affidavit is filed on 30 June and sworn on 28 June. In terms of when you will recall that incident happening, are you able to tell his Honour as best you can when it was by reference to a month and a year?‑‑‑Yes. It was in January.
Of which year?‑‑‑Of that year.
Of that year. Okay?‑‑‑Of 2014.
And is there any reason why you were able to locate it at that time? ‑‑‑Yes. We had been to a family gathering … The kids were getting ready for bed. [Mr W] was present, my partner. We saw [L] when he was naked getting dressed, we saw him rubbing himself against his sister, [T]. I didn’t think anything of it at the time, and jokingly said, “[L], don’t do that. It’s not appropriate.”
All right?‑‑‑“Stop that.”
And you had, in fact, said approximately three months [ago] [L] was rubbing himself up against various people’s legs at a party?‑‑‑Yes.
Right. Now, is that the same incident?‑‑‑Same incidents.
And ‑ ‑ ‑?‑‑‑Yes. We returned home from that party, and it was at home.
...
... In relation to him rubbing himself up against various people’s legs at a party, can you explain what you meant by that?‑‑‑Yes. [T] would – was standing, and [L] put both legs around one of [T’s] legs, grabbed on, and was, yes, rubbing himself up and down [T’s] ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ leg.
It’s just that the – from what you’ve said, that was when you came home from the party?‑‑‑Yes. We had been to a party and we had come home.
Okay. Well – so what the sentence says is:
Approximately three months ago, [L] was rubbing himself up against various people’s legs at a party.
Now, can you see that that’s different from what you’re explaining?‑‑‑Yes.
Okay?‑‑‑Yes. Sorry. Yes.
Is one – is that correct or incorrect?‑‑‑We had been to a party. We were – had returned home, getting ready for bed, and that’s when we noticed that happening.
Okay. And so when you said in your affidavit [L] was rubbing himself up against various people’s legs at a party, is that incorrect?‑‑‑Yes. It would be, at that party. Yes.
55The mother tried to explain the errors in her trial affidavit by saying she had been rushed by her solicitor at the time of signing, and had been told: “Do not change anything. Sign it.” In fact, it transpired that she had been sent a draft of the original affidavit in which the error first appeared, and had made some amendments, but made no changes to paragraphs 87 and 88 before returning the document to her solicitor.
56In the course of the mother’s cross-examination, the following exchange occurred, which revealed a further major disparity in her evidence:
[MR BERRY SC] Why did you swear that he was doing it approximately three months prior to 28 June?‑‑‑I didn’t actually realise at the time when this was – this was a trial affidavit, which was a summary of all my previous affidavits. I did read it, and at that time, I believe that was correct.
At the time, you believe paragraph 87 was correct?‑‑‑Yes.
But you don’t believe it’s correct now?‑‑‑No.
And when you refer to various people’s legs, can you just tell the court whose legs?‑‑‑My – his sister, [T].
Right. Anybody else’s legs?‑‑‑Not really. No.
All right?‑‑‑There were – we were all standing around ‑ ‑ ‑
Right?‑‑‑ ‑ ‑ ‑ but it was mainly [T].
Mainly [T]. Was there anybody else that it did this to?‑‑‑Not really. No.
Well, is it not really or is it no?‑‑‑No.
So can you explain why you said against various people’s legs?‑‑‑Because we were all standing in a group, and it appeared, when he was running around, but when he grabbed on to [T], he was rubbing himself up and down.
So did you intend to say instead of “various people’s legs,” “[T’s] legs”?‑‑‑Yes.
But you swore to various people’s legs instead?‑‑‑Correct.
All right. Now, you say in paragraph 87 that [L] said words to the effect, “Daddy has me do that”. Is that your evidence about what he said?‑‑‑Yes.
Right. Did you say anything in response to that to [L]?‑‑‑I asked him if that was to wash himself.
Right. Did you say this to him at the party?‑‑‑No. I said that to him when he was having – after the disclosure in the bath.
Right. I just want to be clear about the conversation you had with [L] about that behaviour with [T]. After you told him to stop – you told him to stop?‑‑‑Yes.
And at the time you told him to stop, did you take the matter any further with him at that time?‑‑‑No.
You say in paragraph 88:
At the time I thought it was strange. I said to [L], “You are a big boy now. Do you still have showers with Daddy?” [L] said, “Yes.” I said to [L], “Tell Daddy that you’re old enough to shower on your own.”
Right. You that evidence in paragraph 88. Was that conversation – did that happen immediately after or on the same day as [L] rubbing himself against [T’s] leg? Or did that conversation happen at a later time?‑‑‑ I believe it happened at a later time.
And what – when was that later time?‑‑‑It could have been the week after.
It could have been the week after?‑‑‑Yes.
57As will be apparent, not only had the mother misstated the date on which the rubbing incident occurred, and given an inaccurate description of what occurred, she also contradicted her earlier evidence about what she said to L at the time. The mother claimed in her oral evidence that at the time of the rubbing incident, she did not place any particular significance on it, and said she “just thought it was an act that little boys did”. She said she only took a different view about the significance of what had happened in light of “subsequent events”. This too is in contrast with her affidavit in which she claimed that at the time of the event she thought it was “strange”.
58The mother’s oral evidence also does not sit well with an affidavit sworn by her mother on 3 December 2014, in which she said:
23.I first became aware of [L’s] sexualised behaviour in January 2014. [The mother] had dropped [L] off to me on her way to work. [The mother] quietly told me that she witnessed [L] rubbing his penis against [T] and [the mother’s] leg the night before. [The mother] further told me that when she told [L] to stop he replied words to the effect “Daddy makes me do that”. [The mother] said she did not talk any more to [L] about that and had continued her usual night time routine and put him to bed. [The mother] said that she thought it was an unusual remark and asked me to just keep an eye and ear out whilst caring for [L] to see if anything is mentioned again.
59A number of comments can be made about this evidence:
•the maternal grandmother’s recollection that the incident occurred in January 2014 was consistent with the corrected timeline given by the mother;
•if the grandmother is correct in recalling what she was told, then the mother misled her own mother by saying that L had rubbed his penis against not only T but also against the mother herself, since both the mother and her boyfriend later conceded that the only person rubbed against was T; and
•notwithstanding that the mother now claims that she thought at the time that what L had done was just something that little boys did, she saw enough significance in the event to report it to her mother, and to ask her to keep an eye out to see if anything was “mentioned again”.
60The mother’s boyfriend gave the same (inaccurate) account as the mother, save that he had always said in his affidavits that the rubbing occurred after the party. Having said in his affidavits that L had rubbed up against “people”, the mother’s boyfriend prevaricated in his oral evidence in precisely the same way the mother had by saying that it was “mainly [T]” against whom L had rubbed himself. When asked whether it was “mainly [T]” or “only [T]”, the mother’s boyfriend responded by claiming that L “did approach other people”. However, when asked whether L rubbed against them, he admitted L had not. (Neither the mother, nor her boyfriend stated who these other “people” were who were present when L was running around naked after the party.)
61In my view, the most likely scenario is that L was overexcited after being at a party and was running around being silly in precisely the same way as the mother now admits “little boys do”. When chastised for doing something “rude” to his sister, L knew what would be the most acceptable excuse to his mother and thus blamed his father. The mother, however, suspected inappropriate conduct by the father, and was thereafter on the lookout for signs of abuse (if she was not already), and went out of her way to ask her mother also to be on the lookout.
The first bath incident – 23 February 2014
62In her affidavit of 28 June 2014, the mother provided a description of what happened when L was having a bath on 23 February 2014 – i.e. just a few weeks after the “rubbing” incident. The significance of this event cannot be overstated since (following the recanting of the story about the “rubbing” incident) it is the first time the mother says she engaged in any discussion at all with L relevant to the alleged abuse. However, the mother presented her evidence about what was said in the bath in such as a way as to lead the Court to believe she did not consider the incident of any significance at the time. She said it was only after a later incident that she recalled it, as appears from the opening words of the first of the following paragraphs:
113After some reflection I re-called another occasion on or about Sunday 23 February 2014 when [L] mentioned or inferred interference after access weekend from [the father]. It was bath-time and he was talking to me and [T]. When [L] had spent the weekend with [the father], [L] commented to me he was having a shower and getting ready for bed that his father had a bath or shower with him each day he stayed there. I tried to ask further questions but [L] did not elaborate.
114.While I was talking to [L] there was a mention of some touching. I said ‘If you don’t want to have a bath or shower with your Dad then tell him [L]’.
63It will be observed that notwithstanding the obvious importance of the event, and the mother’s ability to describe in detail all of her other conversations with L, the mother here gives no detail at all of what led her to conclude “there was a mention of some touching”. She was equally vague under cross-examination, saying only that “[L] mentioned some touching, but he didn’t elaborate”. When asked how she could therefore possibly have reached the conclusion that L had “inferred interference” by the father, the mother again could only explain by saying it was because L “had mentioned some touching”.
64The mother also said in her oral evidence that the conversation described at paragraph 88 of her affidavit of 28 June 2014 (relating to the “rubbing” incident) was in fact the conversation that occurred in the bath on 23 February 2014. If that be so, then she has provided two different versions of the same conversation in the same affidavit, notwithstanding that she purports to quote parts of the conversation verbatim.
65Although the differences in the two versions are subtle, for reasons which will be later explained, such subtleties can make all the difference in assessing the mother’s allegedly verbatim reports of what L has said to her about being abused. On one version, the mother asked L whether he showered with his father; whereas on the other version, L volunteers that fact. And in one version she purports to recall verbatim saying to L, “Tell Daddy that you are now old enough to shower on your own”; whereas on the other version she purports to recall verbatim saying, “If you don’t want to have a bath or shower with your Dad then tell him [L]”.
66Viewed in isolation, these differences seem trivial. However, they are part and parcel of a conversation in which the mother would have the Court believe that L said something which inferred that his father had interfered with him. When I asked her to explain again what she meant by saying that L had “mentioned some touching”, she replied:
That [L] is having a bath or shower, and he mentions some – he says, “Daddy touches my doodle.”
67When asked why she had not said this at paragraph 88 of her affidavit, she said:
I was unsure whether it was to clean his doodle. I did not want to elaborate. [L] didn’t want to talk about it.
68It is apparent from this answer, if it was not already clear from paragraph 113 of her affidavit, that the mother attempted to have L elaborate on his statement about showering with his father in order for her to be in a position to say that L “did not want to talk about it”. The question arises as to why there was any need for the mother to ask L to “elaborate” in circumstances where he had merely described an everyday event as if it was an everyday event. I infer that following the “rubbing” incident (or because of other matters the mother has chosen not to disclose, or cannot now recall), the mother was suspicious that something untoward might be occurring while L was staying with the father, and she wanted to find out what it was.
The second bath incident on 29 April 2014 and the disclosure to Dr Y
69The first “disclosure” made by L in which there is any detail of the alleged “interference” by the father was while L was being bathed by the mother on 29 April 2014. To put this “disclosure” into context, it should be noted that L had not seen his father for over three weeks, as L and his mother had been visiting the mother’s brother and his wife in [a town in Queensland (“Town C”)], just after the birth of their baby boy.
70The mother’s brother and his wife have three children. Apart from the new baby, they have two girls aged about 4 and 3. No evidence was given about the extent to which L and his girl cousins spent time together or bathed together during the holiday, but it would be safe to assume they at least played together. Nor was there any evidence of the extent to which L may have observed the baby being bathed, or what conversations or education might have ensued as a result (remembering that L has never lived in a home in which there is another male child resident).
71In her affidavit of 28 June 2014, the mother set out her version of what occurred in the bath when she was alone with L on 29 April 2014, just two days after their return from Town C. She also described what transpired during the visit that she and L paid to the doctor arising out of what L allegedly disclosed in the bath. The richness of the mother’s recall of the words used will be evident, but this time the mother only provided one description of what was said, so there can be no comparison of different versions in the same way as was possible with the earlier bath incident.
89.On Tuesday night of the 29th April 2014 I prepared a bath for [L]. After putting [L] in the bath and putting his clothes in the laundry on return I sat on the edge of the bath I noticed he was rubbing his penis
90.I said ‘what are you doing [L]? If you play with it too much it will fall off’.
91.[L] responded ’My Daddy plays with my doodle’.
92.I said to [L] does Daddy touch your doodle just to wash it. [L] said ‘No Daddy plays with it until it grows big’. I asked him what he meant. [L] stood up in the bath and said “Daddy puts his arm around me and plays with my doodle until it grows big”.
93.He went on to say, “You know what mummy when the water gets cold enough I am allowed to hop in the bath with Daddy and then I have a bath and I am playing he touches it”. This is when [L] stood up while in the bath. He turned towards the window and then with one hand he showed me how his dad reaches around his body and touches his penis around his belly and then between his legs. [L] said ‘Daddy gets his hand and comes around and touches it sometimes this way and sometimes this way. Sometimes I am playing and I looked down and he is playing with it’.
94.I said ‘What else is your Dad doing while he is playing with your doodle?’ [L] said ‘He is rubbing his doodle’.
95.I asked [L] if he thought that this was okay and if he liked it? [L] responded with a definite ‘No’.
96.I then asked [L] if he had told his Dad he did not like it and to stop? [L] very shyly said ‘no’. I asked him why he did not say no, [L] went very quiet and appeared to think about this. [L] then said he did not know. [L] also said his Dad says ‘Shhhh’ if he says anything.
97.I asked [L] if he always had a bath with his Dad. [L] said ‘Yes’ [L] also responded ‘Sometimes a shower. I have a shower with him too and he does it there too’.
98.[L] also said ‘Sometimes Mummy even when I have clothes on Daddy takes out my doodle and plays with it’. I asked if there was anyone else around when this happens and [L] said ‘No’.
99.I asked [L] ‘Do you know how long your Dad’s been playing with it? Do you know for how long?’ [L] was sitting in the bath and he held up 3 boats and put them together and indicated by holding them up for me and said ‘This long’.
100.I said to [L] ‘Maybe we should go to the Doctor so he can give you a general check up to make sure you are all OK’. [L] was happy with this and nothing else was talked about. [L] is comfortable in [Dr Y’s] presence.
101.I made a Doctor’s appointment at [Town A] Medical Clinic. [Dr Y], although not a specialist does take a strong interest in children’s matters. [L] is comfortable in [Dr Y’s] presence.
102.On Wednesday 30 April 2014, I took [L] to see [Dr Y]. I simply told [L] I was taking him to the Doctors to have him checked to ensure that all was well with him.
...
105.The Doctor’s appointment was at 4.50pm on Wednesday 30 April 2014 which was the earliest appointment I could get.
106.[L] and I walked into [Dr Y’s] room and sat down [Dr Y] said ‘Hello [L], what are you here for today?’ I told [Dr Y] that [L] would like to tell you something. [Dr Y] proceeded to talk directly with [L] and I remained silent.
107.[Dr Y] said to [L] ‘Ok [L] what did you want to say?’ [L] said very clearly that ‘I want to tell you my Dad touches my doodle’. [Dr Y] asked direct questions of [L] about when, where on his body, for how long in which [L] responded ‘Hours’ and how often it was happening.
108.During the course of the conversation, [Dr Y] said to [L] words to the effect ‘Do you tell Daddy to stop’. [L] said ‘I’m scared’. [L] said if ‘I say anything he tells me to Shhhh.
72The mother stressed in paragraphs 100 and 101 that L was “comfortable in [Dr Y’s] presence”. In fact, he was not L’s regular doctor, having only seen him once in July the previous year. In any event, L was present at all times during the appointment with Dr Y. Notwithstanding the mother’s efforts to assure me that she and Dr Y had spoken “quietly”, Dr Y accepted that L was within “earshot” while he was discussing the abuse with the mother. Dr Y’s recollection was that he and the mother spoke for a “reasonable amount of time” before he spoke with L. He agreed he was certainly not talking to L “within minutes” of his arrival, and that his discussion with L occurred only after a “fair discussion” with the mother. This is in direct contrast with the mother’s affidavit evidence, and also her oral evidence in which she assured me that:
When I entered [Dr Y’s] room, I didn’t talk to [Dr Y]. I just said that, “[L] is here to see you. He wants to say something to you.”
73The mother agreed that the only statement L made to Dr Y was that “Dad touches my doodle”. She claimed that L had “willingly” volunteered this statement. Notwithstanding L’s alleged willingness to volunteer information, L provided none of the rich detail that the mother claimed he had disclosed the previous evening. Dr Y’s note at the time was that “[L], with a [little] prompting from his mother, said that his father sometimes touched his penis in the bath and in the shower”. In his oral evidence, Dr Y explained that the prompting from the mother was not in the form of leading questions, but rather telling L that it was all right for him to tell the doctor what he had told her. Dr Y had earlier noted in his letter to the Independent Children’s Lawyer of 12 May 2014 that after L told him that his father had touched his doodle:
…He was then unwilling to answer any questions to elaborate on what he had told me, [preferring] to defer to his mother after this. He would answer questions unrelated [to] this topic after this, like questions to do with school, but would not be drawn in to any more discussion about his father.
74Dr Y was contacted by [Ms H] from DCP shortly after his consultation with L. She made a note that Dr Y had told her that the information from L had only been obtained after “much prompting and prodding” and that the disclosure was made “reluctantly”. Dr Y said in his oral evidence that he did not think it was a fair interpretation to say that L’s disclosure was made as a result of “much prompting and prodding” and that he did not necessarily agree the word “reluctant” was used by him. However, Dr Y’s notes do say:
[L] behaviour appropriate for age. shy but willing to engage in conversation about school etc. reluctant to talk about this issue but with reassurance from mum did [briefly] mention the incident.
75The mother apparently did not think it was worth recording in her affidavit that Dr Y carried out a careful physical examination of L during his consultation, and found nothing untoward. She did, however, volunteer in her affidavit that it was after seeing Dr Y and “after some reflection” that she recalled the occasion in the bath on 23 February 2014, when L allegedly mentioned “some touching”.
76L was meant to be spending time with his father on 1 May 2014, the day after seeing Dr Y. However, the mother withheld L pending an investigation into the report that Dr Y had to make to DCP. The mother said L “was clearly relieved” when told he was not spending time with his father, notwithstanding he had not seen him for three weeks. Although the mother claimed in her affidavit of 28 June 2014 that Dr Y had advised her to stay at home with L and not to let him see his father, and also suggested that she ring the father to tell him L was sick, Dr Y’s contemporaneous notes said the mother:
would not be happy to send [L] back with this information revealed ... [suggest] the [the mother] [contact] family court about cancelling access visit ... [The mother] will contact her lawyer in [the morning] about approaching [family] court.
77To like effect, in his letter to the Independent Children’s Lawyer dated 12 May 2014, Dr Y said “as [L] had an access visit the next day that was concerning [the mother] I advised her to notify the family court to see what she should do”.
78It will thus be seen that Dr Y made no reference in his notes to telling the mother to lie to the father about L being unwell.
First contact with DCP – 1 May 2014
79After hearing L’s “disclosure”, Dr Y contacted DCP, in accordance with his statutory obligation.
80On 1 May 2014, L was interviewed by two DCP officers, including Ms H, who has 10 years’ experience as a specialist in interviewing children. L presented as being very tired during the interview (but did not fall asleep as the mother claimed later). He told the interviewers that he had a late night at his mother’s home the previous night and had not gone to bed until 8.30 pm because he was up watching television, but he could not remember what he was watching.
81The DCP report noted that L initially did not want to be left alone with the DCP workers, but once rapport was established, his mother was able to leave the room. The report recorded that:
[L] did not know why he was here today talking to workers, [he] did not disclose any sexual abuse, he did not disclose any worries when attending a visit with his father.
He was aware of protective behaviours and understood that people touching him on the genital area was wrong, disclosed that no one had touched his genital regions nor had he been asked to touch someone [else’s] genital area.
...
No concerns from the school, no indicators, always happy to go to his [dad’s].
...
[The father] was notified of the concern and was completely shattered by the allegations, he admitted that he does [shower] and sometimes bath with [L] and he does change him at swimming lessons. He asked him after he had been to the toilet if he has wiped himself. Normal parenting stuff he [believes], he asked advice on how he should shower or bath his child.
[The father] kept saying “Why would she want to go and do [something] like this”.
82The handwritten notes of the interview indicated that L answered “no” when asked, “do you have any worries are you sad when you go to [dad’s]”. Furthermore, when asked whether there was anything he did not like about bath time at his dad’s place, he said “no”.
83The mother was reported by the DCP officers as being “very distressed” to hear that there would be no further DCP intervention. She immediately said she wanted him reinterviewed, but was told it was DCP policy not to conduct a further interview unless there were fresh disclosures.
84On 1 May 2014, as a result of being contacted by DCP, the father instructed his solicitors to write to the mother’s solicitors that same day in the following terms:
The normal evening procedure at our client’s home is for he and [L] to either shower or bathe together. This has been usual. If this is of concern to your client, then this will cease. It has been a convenient way of ensuring that [L] is not left unsupervised.
85On 2 May 2014, the mother and her boyfriend returned to Dr Y to discuss the mother’s anxieties arising from DCP’s refusal to substantiate the allegation of abuse. The mother conceded in cross-examination that she was “very, very upset about the Department’s conclusion”, which she believed had been reached in circumstances where “[L] was scared during that interview and shut down, therefore no further disclosure was made to them”. She said the interview “wasn’t successful in that [L] was not comfortable in that environment to speak freely” (i.e. unlike when he was with Dr Y, with whom he was “comfortable”). The mother initially gave evidence that she “didn’t see the need that there should be another re-interview”, but then admitted that she had, in fact, asked for L to be reinterviewed.
86Dr Y recorded on 2 May 2014 that the mother was:
…concerned about many of [L’s] past behaviours being relevant to now from early on anxiety about visits documented in our notes, to imaginary friend that lives at his [Dad’s], to stating at school that the best thing in life is being picked up by Mum.
87Dr Y recorded (again most sensibly in my view) that he “cautioned [the mother] not to interpret everything in light of this alleged incident”. He further recorded that L “is a cautious child and a bit anxious by the sound of it”. He otherwise recorded that he advised the mother to “maintain normality”.
88The mother initially denied that Dr Y had recommended she “maintain normality”; however, after a break in her evidence while other witnesses were interposed, the mother contradicted herself by agreeing Dr Y had recommended this. Notwithstanding Dr Y’s advice, and notwithstanding DCP had not substantiated the allegations, and notwithstanding the father’s willingness to cease bathing with L, the mother continued to withhold L in breach of the orders. Then, on 12 May 2014, she filed a Notice of Risk of Child Abuse and an urgent application to suspend all contact.
The court hearing on 14 May 2014
89The mother’s application to suspend the contact visits came before Magistrate Sutherland on 14 May 2014. The application was dismissed, which was hardly surprising given the information from Dr Y about how the consultation had transpired. Her Honour did, however, make an order, on a “without admission basis” that the father be restrained from showering with L. This was in accordance with the undertaking already offered by the father to the mother.
90The mother was clearly distressed by the outcome, as she went straight back to Dr Y to seek a certificate for time off work. (The mother also went to her family doctor on 27 May 2014 because of her upset about the outcome of the proceedings.)
91The mother informed Dr Y on 14 May 2014 that her solicitor had recommended that she engage Ms X, a local psychologist. The mother denied that she had given any consideration to the appointment of a psychologist prior to the court hearing. She said she had only been prompted to do this because the magistrate said that the disclosure had been made as a result of the mother asking leading questions. The mother said she wanted advice about how to deal with future disclosures made by L. In fact, Dr Y’s notes of the earlier appointment on 2 May 2014 recorded that the mother’s lawyer was already “organising [a] child psychologist”.
92The first contact with Ms X seems to have been made on 16 May 2014. Remarkably, that first contact was made not by the mother but by the mother’s lawyer who provided details to Ms X concerning the status of the Family Court proceedings, including the fact that there was to be a trial at the end of the year.
93Ms X recorded at the time that the mother’s lawyer had told her that L had made a “clear disclosure to Dr”. Ms X also made a note, “court says ‘alienation mother’”. Ms X confirmed that these words were not her own, but the words used by the lawyer. It would be interesting to have a full account of what other titbits of “information” the lawyer fed Ms X, but there is no transcript and no letter of instruction. However, what can be said is that at no point did Magistrate Sutherland say there was “alienation” by the mother. All her Honour said was that DCP had not substantiated the disclosure; that the mother’s version of what happened in Dr Y’s rooms differed from Dr Y’s; and that she was concerned that L’s disclosure had been the result of leading questions from the mother.
94It is difficult to avoid the inference that the mother’s lawyer, in encouraging the mother to see Ms X, and then giving Ms X what would appear to be a slanted account of the facts, anticipated a role for Ms X in the future conduct of the proceedings. Indeed, as will be seen, her role became pivotal.
Mother’s first contact with Ms X – 19 & 20 May 2014
95The mother and L met Ms X on 19 May 2014. The mother completed a questionnaire provided by Ms X containing “a brief list of some concerns and worry’s [sic] that parents have about their child/young person”. The mother ticked the boxes for “anxiety”, “withdrawn”, “nightmares/sleeping difficulty”, “eating problems or disorder” and “living in a fantasy/imaginary friends”.
96The mother returned for a “parent consultation” the next day, and Ms X then saw L the day after that. No mention was made of seeing L’s father.
97At the interview on 20 May 2014, the mother told Ms X that when L made his disclosure in April 2014, he had said that his father played with his doodle “until it gets big [and] strong”. I observe that the latter part of this description appears nowhere else in the evidence. She told Ms X that L had fallen asleep at the recent interview at DCP and that L had “run away”. The mother was further recorded as saying that since L had been spending two nights in a row with his father, he had “changed” and was “not telling me he loves me as much”. The note indicates that the mother said that L had previously been telling her he loved her “once every hour”. If this were even half true, I would have thought it a matter of some concern, but there was no mention in the notes, or the evidence, of anything Ms X may have told the mother to allay her concerns about a nearly five-year-old boy no longer feeling the need to repeatedly tell his mother that he loves her.
98Another note made by Ms X concerned L telling his mother when he got into the car (seemingly after the interview at DCP), “I don’t want to talk about the doodle anymore”. He was also noted as saying that he did not want “to see [the] ladies anymore” (presumably the DCP workers), but he did want “to see [Dr Y] again”. To the best of my recollection, nowhere in the evidence did the mother reveal that L had told her that he did not “want to talk about the doodle anymore”.
99The mother further informed Ms X that, after the separation, the father had not wanted to see L “until October – 7 months”. Assuming the mother was correctly recorded, this is far from a full description of what occurred following the separation in May 2011. It was in fact in October 2011 that the mother says the father began to spend two days in a row with L, having previously seen him on Sundays (see paragraphs 48, 49 and 53 of the mother’s affidavit sworn 28 June 2014).
100Although the mother’s lawyer had told Ms X the name of the father’s lawyer, and although she could have obtained the father’s details, Ms X made no attempt to contact the father or ask him to meet with her. Ms X much later said she was perplexed why the father had not contacted her, but the father did not even know she was seeing his son until this this was disclosed in the mother’s affidavit of 28 June 2014. The mother conceded that she had not asked the father for his input about engaging Ms X because she anticipated that he would have objected.
101Since May 2014, L has been seeing Ms X regularly at a cost of $160 per session. Although by the time of trial, L had apparently seen Ms X over 26 times, there has never been discussion between the mother and Ms X about when, if ever, L’s therapy would come to an end. The mother explained that: “[L] enjoys going to [Ms X]. He is comfortable in her presence.”
102Throughout the therapy, the mother has corresponded with Ms X, as well as chatting with her at each of L’s visits (and at a couple of “parent consultations”).
103On 8 July 2014, the mother emailed Ms X in the following terms:
Hi [Ms X]
Thank you for letting me make contact with you.
I have been wanting to discuss something [L] said after your last appointment with him in [Town A] on the 18 June.
The following morning we were getting ready in the morning I picked out a jumper for [L] as he was to spend Thursday with his Dad ... [L] took off his top … he threw it on the ground and told me he was not going to wear that, give me something else. When I asked why not? he said my Dad won’t like it, I said I think your Dad would not mind you wearing that and [L] said no I am scared that my Dad won’t like it and he won’t like me. I gave him another top to put on and had a similar response.
I asked [L] why he as scared and if he was scared he should talk to [Ms X] about it. [L] told me in his words…“What’s the point…..it won’t change anything”.
I asked him why he thought that and he said [Ms X] doesn’t know my Dad and won’t talk to my Dad. I was shocked and concerned that he had made that connection. It made me feel terrible because I felt he was inferring to himself when telling me that I was not able to change anything after he had told me in the bath.
I asked [L] in the car on the way to my Mums house what [the father] does to make him feel scared he told me he growls like a lion. I asked when he does this he told me in the bath and when I do something bad. I told [L] I don’t think you would do anything bad as you are a very good boy and please tell Mummy or [Ms X] when this happens again.
I ended up taking [L] to my Mums house without a top on just a singlet. [The father] normally collects [L] from my Mum’s house after I have left.
… I just wanted you to know what he said and if there anything I can do to help [L]. I feel that he seems scared and has nightmares most nights waking between 1-3am he often says I was scared someone was taking you Mummy when he wakes crying. ...
104Many observations could be made about this email; however, I note that:
•although the mother claims that L was having nightmares most nights, she made no mention of these in the lengthy affidavit she swore only a week before;
•on a day when the mother was planning on L wearing a jumper, she was unable to dissuade him from going out in anything other than a singlet; and
•the mother assumed that L’s claim that he was scared that his dad would not like his top meant that the father had done something to make L feel scared.
105Of most interest, however, is the mother’s assumption that L’s comment that Ms X “doesn’t know my Dad and won’t talk to my Dad” was somehow connected with a concern on his part that his mother had not been able to change the contact arrangements after the “disclosure” in the bath. Given that L has now been found by the single expert to have a close bond and attachment to his father, it may equally (or much more likely) have been the case that L was frustrated that Ms X seemed to hold a view about his father which L thought might be dispelled if she met him.
106Ms X promptly responded to the mother’s email, thanking her for “sharing this” and noting that it “is all quite complex and I think we would need a parent consultation to discuss further”. Ms X also told the mother:
From what you have outlined, your responses seem very appropriate. The best way to continue to support [L] is to listen and to reassure him and continue to provide him with the emotional support and care that you do.
107Notwithstanding Ms X had suggested times to the mother for a “parent consultation” to discuss these “complex” matters, the consultation did not occur.
108L’s statement about Ms X refusing to speak to his father is also of interest in light of the fact that Ms X did not take this as a prompt to meet L’s father. Given the therapeutic relationship that was established, and the great weight placed on everything else L says, it is difficult to see why Ms X apparently did not ask L if he would like her to meet his father, or decide herself that this would be beneficial.
109In this context, it is important to note that Ms X was not just teaching L protective behaviours, but also providing therapy for ailments his mother described him as having, but which Ms X did not observe, such as anxiety. L, at that point, was spending significant amounts of time living in his father’s home, and it might be thought that a therapist would want to obtain additional information about how the child behaved when not with his mother. However, Ms X acknowledged that her method in the majority of cases was to deal with only one parent. The single expert was critical of this mode of practice, but I will return to that later.
Further “disclosures” on 10 August and 14 August 2014
110The mother claimed in her affidavit sworn on 3 December 2014 that “[L] made disclosures on 10 August 2014”. No details were provided in that affidavit; however, in an affidavit mentioned in the course of cross-examination of the father, sworn on 5 September 2014, the mother had already provided the following details:
9.On the evening of the 10th August, after showering at my home [L] said, “Guess what Mummy” “Dad touched me two times, two nights and then did the growly face.” [L] has complained in the recent past that when his father doesn’t like something he does or says or wears, [the father] puts on a “growly” face which has scared [L]. I have asked [Ms X’s] advice about that issue. [L] refers to his penis as his ‘doodle’.
10.I asked [L] if it was the first time his Dad had touched his doodle since the Judge had said not to do that. [L] said “Yes”. I asked [L] to tell [Ms X] on the next occasion he saw her.
111The mother sent an email to Ms X on 11 August 2014 in which she described the above conversation, but in which she revealed that she had also:
asked [L] to please do a favour for Mummy and next time he saw [Ms X] to tell [Ms X] what he had told me. He asked me what a favour was so had to explain and reword this. (emphasis added)
112The affidavit of 5 September 2014 was sworn in support of another application, filed on 12 September 2014, to suspend the orders for contact and for the father to spend only supervised time with L at the Anglicare facility in Town B.
113In support of her application, the mother also claimed that there was a further disclosure on 14 August 2014. She described this in her affidavit of 5 September 2014:
12.[L] then made a further disclosure about [the father] touching his penis on the evening of the 14th August 2014. [L] had spent the day with [the father] and had been to his swimming lesson. I was in [L’s] bedroom with him getting ready for bed. I asked [L] about his day and whether he had got changed at the swim centre. [L] had a running nose and a slight cold during that week and I was concerned that he had been properly dried off after the lesson.
13.[L] agreed he had got dressed at the swim centre but that [the father] had changed his clothes again when he returned to his father’s home. [L] said, “Dad played with my doodle. I said, No Don’t do that, but Dad kept doing it. I asked him to stop, I asked Dad why he did it, Dad said he wanted to feel what my doodle is like. Dad gave me a growly face he does.”
14.I said to [L]. “You know that the Judge said that no one can touch your private parts not your doodle, testicles, bottom or if you are a girl your vagina.” [L] repeated that his father had touched his doodle.
114The mother’s boyfriend also gave evidence about what happened on 14 August 2014. In his affidavit sworn on 3 June 2015, Mr W disclosed that when he visited the mother’s home on 10 August 2014, the mother told him that L had told her that he had two showers at his father’s home that weekend, and that although L had a shower at his mother’s place prior to going to his father, L had said that his father made him take another shower.
115The mother made no mention of this in her affidavit of 5 September 2014, even though on 19 August 2014, she sent an email to Ms X containing a statement from Mr W in which he referred to the showers. Mr W’s statement said that he and the mother agreed it was “strange and suspicious” that L had another shower after being dropped at his father’s place at 6.20 pm, having already had a shower after his birthday party after school. Mr W’s statement did not indicate whether the father had been told that L had already showered. Nor, of course, did Mr W know what activities L had undertaken after arriving at his father’s home.
116On the evening of 14 August 2014, the mother sent an email to Ms X to report on the latest disclosure and to ask whether an earlier appointment was available. The email (which contains a note from the mother’s boyfriend) reads as follows:
Hi [Ms X]
…
[L] spent his usual day visit with his Dad today – I asked him if he went swimming lessons today and he said yes and showed me how he learnt big swimming arms. I was happy with big swimming arms and said I hope you got dressed really quickly afterwards as it was a cold day he said when he got back to his Dads house he got changed and his Dad played with his doodle. I asked him what he said, he said ‘no Dad don’t do that’, but said he kept on doing it. [L] said he asked his Dad why he does that? and he told his Dad said ‘I want to feel what your doodle is like’. I do not what to do … or where to go from here. The Barrister that represented me in the Family Courts in Perth … indicated to me that if it was happening it would most likely happen again. I would have thought otherwise unfortunately I am sickened by what [L] has told me in the last few days.
My boyfriend [Mr W] had come over for diner after work meetings and he was near the fire and overheard what [L] had indicated to me.
Hi [Ms X], after what I heard tonight I think this is a police matter as its sexual abuse but happy to take your advice. [Mr W]
Regards
[Ms Kerr]
117The mother read a protective behaviours book to L after he had made his “disclosure” on 14 August 2014.
First police involvement – 15 August 2014
118On the afternoon of 15 August 2014, the mother attended at the police station to report the disclosures made on 10 and 14 August 2014. The police report records that:
[L] disclosed to [the mother] on Monday 11th of August 2014 that On Friday 8th and Saturday 9th August 2014 when he stayed with [the father] that he showered with his dad and [his dad] ‘played with my doodle’.
[L] had swimming lessons at school on Thursday 14th of August and was picked up by [the father] afterwards and taken to his address. [L] got changed there and he stated to his mother later that evening that [the father] touched his doodle again.
119The mother pointed out that the police report contained an error in that the first disclosure was made on 10 August not 11 August 2014. Also, the swimming lesson was not at the school, but at a private academy. However, the mother did not suggest the report was wrong in saying that she advised the police that the abuse was happening more often; that the abuse was getting worse; that the father had previously hurt L; and that the father had previously mistreated an animal or family pet.
120The police advised DCP of the fresh allegations, and Ms H telephoned the mother on 19 August 2014. The mother recalled that Ms H was “the same officer who had previously seen [L] and made [L] so scared he ran out the building and onto the road yelling at me Mummy lets go I don’t want to go back there”. Notwithstanding her reservations, the mother agreed to speak with Ms H, even though later that day, the mother emailed Ms X, saying “[Ms X], I do not want to have to deal with this DCP Officer again is it my right to ask for another Officer?”.
245L has a close and loving relationship with his sister T, and I accept the mother’s evidence that T misses L when he goes to visit the father.
246I also find that L has a close and loving relationship with his family on both sides. One of the most concerning aspects of his June 2015 “disclosure” was the fact that in making this “disclosure”, he also felt compelled to made derogatory remarks about a much-loved grandmother. I have no hesitation in concluding that these remarks were made only because he considered his audience would like to hear them.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity –
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
247Both parents have taken all opportunities to make decisions about L and to spend time with him and to communicate with him.
248Regrettably, the decision to have L undergo long-term “therapy” was made by the mother without consultation with the father. Also, knowing the concerns the father has previously expressed about health issues associated with young children visiting Bali, the mother nevertheless took L to Bali for a holiday in April 2015 without informing the father. I have pointed out to the parties that they should seek legal advice about removing L from Australia without permission, given that they face imprisonment for up to three years for doing so, without an order of the Court.
249The mother’s evidence about the trip to Bali also demonstrated her capacity to put a “spin” on things to advance her case. In giving her evidence, she let slip that she had become unwell during her time away:
I went to Bali with the kids and we caught up with my brother and his kids and family, and I got quite sick in coming – not in Bali, actually coming back from Bali.
250 It was obvious that the mother corrected her evidence to say that her illness was contracted in the plane on the way home, not while in Bali, because she did not want it to be thought that the father might have been right in expressing concerns about the conditions in Bali.
(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
251The father has met his child support obligations. The mother claimed that the father organised his affairs to minimise his child support, but she also conceded that at times he paid more than he was assessed to pay. Apart from the amount paid by the father, the mother meets all of the expenses for L, including his private education.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
252I agree with the single expert that it would cause L anxiety if he were to be separated from either of his parents or from his extended family. I also accept the opinion of the single expert that where a child is denied the opportunity to have a normal relationship with a parent, their relationship will be disrupted or even terminated and this will “significantly impact on the child’s developmental trajectory”.
253I also generally agree with the single expert that:
[L] is a well-adjusted and intelligent child who should be able to adjust to the living arrangements in both family homes. He has significant support from extended paternal and maternal family members who will help him adjust to any changes in living arrangements.
254The orders I propose to make will ensure that L is not separated from either of his parents or from their families. This is in contrast with the orders originally proposed by the mother for professional supervision, which would have made it all but impossible for L to have any relationship with his father’s extended family.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
255There is no practical difficulty or expense associated with L spending time with each parent, as they live in close proximity, and L’s school is nearby.
(f)the capacity of –
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
256The father has lived in the same home since 1998. He is a non-smoker and drinks alcohol very sparingly and only on social occasions. He is comfortably off, notwithstanding having agreed to pay the mother $215,000 pursuant to the property settlement agreement which was finally reached on Day 1 of the trial.
257The father has casual employment (and an income from investments) and would be able to rearrange his work schedule in order to be available to care for L each alternate week if I were to order the week-about arrangement which he proposes.
258The mother works Monday and Thursday and each alternate Wednesday (or at least that was her roster when she last provided details). She is not as comfortably off as the father, but has stable rental accommodation and can provide for L’s needs.
259The single expert found both parents are able to meet L’s physical, emotional, social and intellectual needs. My only concern about the father’s capacity to provide for L’s emotional needs arises from the fact that he was inclined to push the contact arrangements at too early a stage in L’s development. Although the father was right in believing that he had a good relationship with L and would be able to provide for him during times L lived with him, I consider he underestimated the dependence L had on his mother at the time.
260At every point, the father presented as having a remarkably well-balanced view of the mother, and did not appear to be angry or bitter about her allegations. It would seem the only time he strongly expressed his emotion about the allegations is when he said to the maternal grandmother on 23 October 2014, “your daughter is filling [L’s] head full of shit”. (The grandmother also gave hearsay evidence of what the father allegedly said to the maternal grandfather, using more obscene language, but I note the grandfather was not called as a witness.)
261Notwithstanding the mother continuing to press her allegations, the father has no objection when she comes into his home, including when she walks around without invitation. The single expert’s opinion of the father corresponds with the one that I formed after having observed him over some very stressful days in court, namely that he is:
a friendly, calm, somewhat reserved and pleasant person ... He did not denigrate [the mother] and focused on how best to care for [L] and how to work or interact with [the mother] as a parent. He certainly seemed to be a patient person ... He is not an impulsive or aggressive person and showed good insight and judgement about his situation.
262On the other hand, I agree with the expert that the mother regards the father with suspicion; believes L is not safe with him; and does not regard his role as important as her role in parenting L. However, notwithstanding the mother’s suspicions about the father, she too interacts courteously with him whenever they meet.
263Personality testing of the mother revealed an elevation on scales indicative of a person who can “show exaggerated aggressive/emotional responses”. However, the expert found her to be a “friendly, warm and pleasant person”. He also found she was not “impulsive or aggressive” and “generally showed good insight and judgement”.
264 The single expert’s assessment of the mother corresponded with mine, save that I find the mother lacks insight into the way she interprets almost everything about the father in a negative or suspicious way.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
265L is still quite an immature child. The maternal grandmother said that even now, L is sometimes unable to wipe his bottom and seeks assistance to do so.
266The notes of a parent/teacher interview on 5 May 2015 record that “[L] is a quiet student who looks like he is listening attentively but often does not understand concepts being discussed ... [L] struggles with number recognition and of the one to one principle or when counting”.
267The main significance of these characteristics was in assessing the weight to be given to the “disclosures” L has made, and the extent to which it was necessary for the father to touch L’s penis as part of everyday hygiene when he was younger.
(h)if the child is an Aboriginal child or a Torres Strait Islander child –
268This factor is not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
269In almost every respect, the mother and the father have been outstanding parents, and taken their responsibilities as parents very seriously.
(j)any family violence involving the child or a member of the child’s family;
270The mother told Ms X at her first interview that the father had “whacked” her once. The father denied the allegation and said that it was the mother who had punched him in the face when he had opposed her request for him to discipline T, albeit he acknowledged this was a “once off”.
271When senior counsel for the father sought to cross-examine on the issue of violence, counsel for the mother advised that he was not going to make “a big song and dance about it”. In any event, when the mother completed her Case Information Affidavit in February 2013, she said there had been no family violence.
272The mother’s claim to the police that the father had been cruel to a pet animal turned out to be based on her recollection of having seen the father giving a rabbit a smack when he found it running around the garden, prior to putting it back in its cage.
(k)if a family violence order applies, or has applied, …
273Neither party has ever sought a family violence order.
(l)whether 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 child;
274It would be desirable to make orders that would ensure there are no further proceedings. These proceedings have been exceptionally expensive and no doubt exceptionally stressful for both parents. The money, time and emotional energy devoted to this litigation could have been much better devoted to L. Nevertheless, for reasons that I will later explain, I do not propose to make a final order.
(m)any other fact or circumstance that the court thinks is relevant.
275One outstanding feature of this case is the fact that the families seem to enjoy an amicable and respectful relationship, which I hope has not been damaged too badly by these proceedings. Unusually for such cases, the maternal grandmother said her relationship with the father was “quite OK” and said that “we get on quite well”. She said that she would agree that the father was a “fairly even tempered person”
276Clearly, both families will do whatever it takes to promote L’s welfare. Thus, regardless of any views they might have about the father, the mother’s parents have accepted invitations to attend his home for birthdays and other occasions. As I said to the families at the trial, L must love seeing the important adults in his life getting on so well together, and I am convinced that this kind of cooperation will be very important in promoting his psychological wellbeing.
277One relationship of significance not already discussed is that between the father and T. I find that they developed a very good relationship when T lived in the father’s home. He built a play area for her and a cubbyhouse over the sandpit, with a flying fox and slide into the pool. He read her stories, helped teach her to ride a bike and took her on outings. The father described T as a “delightful little girl with whom I enjoyed an affectionate relationship”. I accept his evidence (and indeed it was conceded by the mother) that he treated T as if she was his own daughter, and I also accept that he “took an active and positive role” in T’s life, which would have been of great advantage to her, as T’s father was largely absent.
278Following the separation, the father has given T birthday gifts, Christmas presents and Easter eggs, as he “wanted her to be aware that I do care for her”. Notwithstanding the previous relationship between the father and T, after the separation, when the mother dropped L at the father’s home for visits, she would sometimes leave T with her parents across the road, rather than encouraging her to go with L. On occasions, when the mother was not at the home of her parents, T would ask, and be allowed, to pop over the road to see the father and L.
279The father does not seek any formal orders for time with T. Obviously, she is growing up and has other commitments including a visiting regime with her own father. I accept that it would not be practical or even desirable for there to be any regular visiting regime between T and the father; however, hopefully in time there will be occasions when she is able to visit the father when L is visiting him.
Parental responsibility
280The mother and father agree they should have equal parental responsibility. I consider such an order would be in L’s best interests.
281It is one of the most pleasing aspects of the case that notwithstanding the accusations, the parents have largely been able to retain a civilised relationship. They should be able to cooperate to make good decisions about long-term issues for L.
Equal time
282As I intend to make an order for equal shared parental responsibility, I am obliged to consider whether an order for equal time would be in L’s best interests and, if so, whether such an order would be reasonably practicable.
283Although, by the end of the trial, the father wanted L to live with him full-time, for reasons already explained, he was not permitted to pursue that option. He did, however, maintain his request for equal time, although acknowledging that there would need to be a build-up period.
284The single expert was of the opinion that:
Maintaining and developing [L’s] relationship and bond with each parent will assist his psychological development. Therefore [L] will benefit living with each parent, benefit from the father and his family, benefit from the mother and her family as both family systems are stable.
285The expert posited various arrangements for L dependent upon whether there was a finding of risk. One proposal he considered to be viable was for L to spend time with his father in accordance with the orders made in April 2013. He saw many advantages associated with such an arrangement and no real disadvantages, save for the likely ongoing concerns of the mother about the father, which he considered would be difficult to manage, given the mother’s distrust of the father.
286The expert also considered as viable an arrangement whereby the father would spend time with L in accordance with the April 2013 orders, but then gradually increasing the time. The expert saw the same advantages associated with such an arrangement as with the first arrangement discussed, and no real disadvantages.
287Although there is a possibility that, in the medium to long term, it would be in L’s interests to spend equal time with each parent, I am not persuaded that such an arrangement would be in his interests in the short term, even though such an arrangement is “reasonably practicable”. L has always lived with his mother. He is still quite young; very attached to his mother; and dependent upon her. I would therefore leave consideration of equal time until a later stage. Any consideration of an equal time arrangement would also need to take into account the fact that this would involve L spending more time away from T, with whom he has always lived.
Substantial and significant time
288I am now obliged to consider whether a “substantial and significant time” arrangement would be in L’s interests, and if it would be reasonably practicable.
289The proposal made on behalf of the mother at the end of the trial amounts to a “substantial and significant time” regime. The mother’s counsel particularly stressed the importance of L continuing to live with his half-sister in arguing that:
[L’s] best interests will be served by continuing the arrangement with the suggested eventual 9/5 outcome ... given the likely reservation that [the mother] will harbour arising from the disclosures, the most stable arrangement will be to stage the time with [L] from the original orders to the proposed 9/5.
290As I understand his submission, in referring to the “original orders”, counsel had in mind the April 2013 orders, which involved the father spending two nights with L in one week and one night in the following week.
291I consider it would be in L’s best interests, and reasonably practicable, for him to gradually build up his time with the father so that by the commencement of the 2016 school year, he would be spending four nights a fortnight with his father, and then, by the start of the 2017 school year, five nights a fortnight. The times would be split into two parts – the first comprising from after school on Friday until the commencement of school on Monday, and the second to include the midweek night that T spends with her father.
Discharge of the therapist
292Although in her affidavit, Ms X expressed her opinion that it was important for L to continue to receive therapy, in her oral evidence she said it may well be appropriate for L’s therapy to come to an end in the next few months.
293The father’s proposal was for Ms X to be prevented from having any further involvement with L. However, having heard Ms X’s evidence about the importance of not precipitously terminating a therapeutic relationship, senior counsel for the father agreed that it may be appropriate for her to be given some time in which to terminate her therapeutic association with L.
294The father’s application stands to be considered in light of research referred to by the single expert, which he summarised as pointing to the undesirability of a:
children’s therapist becoming involved in the forensic issues of an alleged sexual abuse case ... In general, they should stay out of the legal arena when the case concerned someone with whom they have a pre-existing therapeutic relationship, in such cases, they should leave forensic activities to another.
295Clearly, Ms X has become caught up in “forensic issues” and was entering into the “legal arena”, right up to the week before the trial resumed. The single expert also questioned other aspects of Ms X’s mode of practice. For example, he was dubious about the “play therapy” which she used, expressing his opinion that “play therapy can unfortunately distort and confuse the recall of children by undermining the accuracy of what they think they remember”. He also said that when giving professional presentations to other psychologists, he strongly advised against a therapist engaging with only one of the child’s parents.
296These proceedings are ultimately about L, not about differences of opinion within the psychological profession. I have no hesitation in concluding that Ms X has done what she thought was best for L. I also acknowledge the fact that she has worked for many years in this field, including for DCP. I also accept that her methods of practice might be beneficial in those cases where there is no doubt that a child has been abused. In the present matter, however, I consider her role has been tainted from the outset by being fed selective and sometimes misleading information. As a result, and without having the benefit of all of the evidence, and without having met L’s father, she has formed a view that L’s disclosures represent the truth. In doing so, she appears to have had little regard to the research mentioned by the single expert about disclosures made by very young children.
297Ms X’s position emerged most clearly when I asked how, as a therapist, she could come to the conclusion that L had been abused, in circumstances where she was trained to accept the truth of what she had been told, and when she did not have the benefit of any evidence other than what she had been told. The exchange between us is reproduced below:
HIS HONOUR: How can you do it? You don’t challenge the mother, you don’t challenge [L]. You accept what, what they tell you as the truth. So how can you make any assessment at all when the people who are making the disclosures are not challenged in any way?
[MS X]:A lot of the training of child protection workers, social workers and psychologists is about believing the client and that’s my role as a therapist. In all of my experience in working with children, in child protection, the way that children present when they make disclosures is such that I have believed them and that is the way that child protection workers and social workers and psychologists are trained and that is the evidence of the research of which is quite extensive about children who make disclosures in relation to child sexual abuse.
HIS HONOUR: So all disclosures are correct?
[MS X]:Not necessarily, certainly there are some circumstances where a disclosure may not be correct but a professional would gather information and in various roles examine that information.
HIS HONOUR: But the only evidence that you have is from the mother and from [L] and your professional observation of them in circumstances where you are trained to and required to believe them and not challenge them.
[MS X]:That is correct.
HIS HONOUR: Right.
[MS X]:And that is my role as a therapist. That’s correct.
298I do not purport to have expertise in Ms X’s field of practice, but I do know, from long experience in my own field, that for the truth to emerge it is often necessary for stories to be challenged and scrutinised. Regrettably, there is no evidence that Ms X ever challenged anything told to her. For example, she would have been in an ideal position to give the mother some advice about what would be considered normal sexual behaviour for a little boy, but the mother said no such advice had ever been given. Nor is there any evidence that she told the mother that it would not be expected that a young boy would feel a need to tell his mother every hour that he loved her.
299As another example, although it is perhaps a better example of how the mother “spins” everything against the father, Ms X noted in her evidence that the:
mother reports improved behaviour and reduced separation anxiety (although during the May 2015 session, [L’s] mother reported that [L] had displayed some physical behaviour/aggression towards his sister. It was reported to me, that this may have come from play with another child whilst on the visit with his father).
300There was no indication that Ms X challenged the mother by pointing out that it is not unusual for a child to display some aggression toward a sibling, or that she asked her why she thought this could only have come from play while on a visit with the father. On the contrary, she appears to have seen her role as validating the mother’s concerns and assuring her she was handling the situation very well.
301In light of these matters, and given that Ms X said that she anticipated that L’s therapy could be coming to an end anyway, I consider that it is appropriate for an order to be made to ensure that the therapy does come to an end. I anticipate that Ms X may find it difficult to accept the finding that there is no unacceptable risk to L. The mother will also find it difficult. In my view, it will not assist the mother to come to terms with my finding if she continues to associate with a therapist who shares her views (although I also acknowledge the possibility that if Ms X is permitted to read this judgment, she may accept that there is, at the very least, room for a difference of opinion on the central issue).
302I accept Ms X’s professional opinion that her relationship with L should not be terminated immediately. I agree it would be desirable for her to have a few more sessions in order to prepare L for the cessation of contact with a person he has been seeing for more than a year and with whom he is comfortable. I will rely on Ms X to ensure that the relationship is terminated in an appropriate way and to encourage L to look forward to his time with his father.
Therapy for the mother
303Senior counsel for the father sought an order that the mother be required to attend for counselling or therapy to assist her to accept that L has not been abused.
304The single expert was of the view that the mother will:
probably find it difficult, if not impossible to change her belief or perceptions that the father has not acted sexually inappropriately towards [L]. I am uncertain if the mother is referred to a psychologist from counselling whether she will gain insight into what has occurred or gain a better understanding about the different possible explanations for what [L] reported. An additional problem may be that [L] treating psychologist may support the mothers views about sexual abuse, which in turn makes it more difficult for the mother to adjust or change her views. I will certainly recommend the mother sees a psychologist to obtain a better understanding of various possible explanations of what children say and children’s behaviour regarding sexual curiosity or inquisitiveness at [L’s] age and later stages of sexual development.
305The mother said she would see a psychologist as recommended by the expert if ordered to do so. However, I have reservations about making an adult attend therapy or counselling. While I consider that it would be desirable for the mother to receive some assistance, I also consider counselling or therapy would be more likely to be successful if she decided to have it without being compelled. I am convinced that the mother has L’s best interests at heart, and she will also be aware that in the event that she continues to encourage L to believe that he has been sexually abused, there is the possibility that her time with him will be significantly reduced.
306Those matters should be enough encouragement for the mother to attend counselling, if she feels she needs it, rather than being compelled by an order.
Proposed orders
307The orders I propose to make will be interim orders only. I am not prepared to make final orders because I intend to see how matters unfold following the delivery of these reasons. If the mother continues to believe that the father sexually abused L, and persists in behaving in such a way that L continues to make disclosures of abuse, then it will clearly be necessary for the Court to give consideration to whether her time with L should be considerably restricted.
308The mother is an intelligent person, who I anticipate will reflect on all of the matters set out in these reasons. She also has the benefit of the support of family who have a more moderate view of the father and who may encourage her to accept the decision of the Court. Should this occur, then there can be no doubt that it would be very much in the best interests of L for him to have his mother involved in his life to a very substantial extent. I therefore hope that although my orders are interim orders only, the only further issue that might arise between the parties in the more distant future is whether it is desirable for L’s time with the father to be stepped up beyond the terms of the orders that I propose to make.
309I should also record that in refusing the father leave to seek an order that L live with him full-time, I was motivated in part by my view that the mother has not acted out of malice or revenge, and that it is likely that her views about the sexual abuse of L arose in part because of the anxiety she felt about L living half-time with the father. I have also taken into account the fact that she is a devoted, caring and loving mother, who is to be commended for the role she has played in bringing up a delightful child. I also took into account the fact that the mother was, at times, acting in accordance with the advice of a qualified and respected psychologist.
310I intend that in the very short term, by way of a “settling-in period”, L will continue to spend time with his father on the same terms as he has been recently, save that the requirement for supervision will be removed immediately. After a few weeks, I then propose that he start spending time with his father from Saturday morning to Sunday night on alternate weekends, and overnight on Tuesday in the intervening period. There will then be a slowly graduated increase, so that by the commencement of school in 2016, L will be spending time with his father from after school on Friday to the commencement of school on Monday each alternate week and on one night in the intervening period, to coincide with T’s time with her father. Finally there will be a step-up to two nights in the intervening period, so that by the start of the 2017 school year, there will be the 9/5 regime mentioned by counsel for the mother in his closing address.
311Adopting the recommendations of the single expert, I propose to make orders that will ensure that both parents can attend all of L’s school, sporting and other activities. Although in other families this can be a challenge, these parents have shown an ability to behave appropriately when they are together and I am confident that L would be very pleased if they could each attend all of his activities.
Credibility
312Before concluding, I should make some observations about the credibility of the parties and their witnesses, as these have informed some of the findings made above.
313In his written closing submissions, which he advised were made with the advance knowledge and support of the mother, counsel for the mother conceded that the father’s credibility had “remained intact in relation to the central allegations” and correctly acknowledged that “the Court would understandably have reservations about rejecting his evidence”. This submission, however, was preceded by the statement “it is trite but true to observe that credible witnesses can nevertheless be liars”.
314I found the father to be a most credible witness. He was shown to be wrong on one issue, in that he maintained for a long time that the parties had commenced cohabitation just prior to Christmas in 2008, whereas he ultimately had to accept that it was Christmas 2007. I accept, however, that this was a genuine misunderstanding. Apart from this error, the father was not successfully challenged on his evidence. In particular, I accepted his firm denial of any inappropriate dealing with L.
315Although my impression was that the mother is generally an honest woman, I found her inclined to put a “spin” on anything to show the father in a poor light. Apart from her inclination to avoid answering questions put to her, I also found that she adjusted her evidence to suit her case on occasions. Nevertheless, I accept that much of what she said was the truth.
316I do not propose to make specific findings about the credibility of the other witnesses. I found all of the lay witnesses to be pleasant, sensible people who did their best to assist the Court to arrive at the best decision for L. Inevitably, some of their evidence was not entirely accurate and sometimes their evidence (particularly their affidavit evidence) was skewed to support either the father or the mother; however, I am satisfied none of them intentionally gave false evidence.
Orders
317No submissions were made at trial concerning the finer detail of the parenting orders that were proposed by both parties. Rather than seek to attempt to craft a specific set of orders, I intend to give the parties the opportunity to discuss the terms of the orders to be made by the Court.
318To cover the position while the parties and the Independent Children’s Lawyer are discussing the final form of orders, and the stepping up of the father’s time with L, I will make the following interim orders:
1.The mother and the father have equal shared parental responsibility.
2.L live with the mother.
3.The father continue to spend time with L for the same times as he was spending time with him at the date of trial, but the requirement for the time with L to be supervised be discharged immediately.
4.At the expiration of one month from the date of these orders, the father shall commence spending time with L from 9.00 am on Saturday until 4.30 pm on Sunday each alternate week and from after school on Tuesday to the commencement of school on Wednesday in the intervening week.
5.The mother shall instruct Ms X to commence termination of her engagement with L, with the engagement to be terminated after not more than four further visits with Ms X, with the last to occur not later than eight weeks after the date of these orders.
6.The mother be restrained and an injunction is granted restraining the mother from reporting any further allegations of sexual abuse of L to a third party, without the consent of the Independent Children’s Lawyer.
7.The Independent Children’s Lawyer is requested to provide a copy of the reasons for judgment to:
(a)WA Police;
(b)DCP;
(c)Ms X;
(d)Dr Y;
(e)Mr De Rooster; and
(f) any professional person engaged by the mother to provide her with therapy or counselling.
8.The mother be at liberty to provide a copy of Mr De Rooster’s report to Ms X.
9.The mother and the father be at liberty to provide a copy of the reasons for judgment to members of their own families and any witness who provided an affidavit in these proceedings (and with the consent of the Independent Children’s lawyer to any other person).
10.The parties be at liberty to present a Minute of Consent Orders to the Chief Judge in chambers, but failing agreement the parties and the Independent Children’s Lawyer be at liberty to seek the listing of the matter before the Chief Judge in the week beginning 3 August 2015 for argument about the final form of orders.
I certify that the preceding [318] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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1 While the Evidence Act 1995 (Cth) does not apply in these proceedings, the propositions stated by Murphy J hold good here where the Evidence Act 1906 (WA) applies.
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