Campbell and Wilson & Anor

FAMILY COURT OF AUSTRALIA

CAMPBELL & WILSON AND ANOR

[2009] FamCA 1260

FAMILY LAW – CHILDREN – BEST INTERESTS – Whether sexual abuse of child by father – Evidence insufficient to support findings – Some matters alleged inherently unlikely – Some matters alleged have possible innocent explanation – Father invited finding that on balance of probabilities sexual abuse of child by father did not occur – That finding not made as inherently difficult to prove a negative – On balance however no unacceptable risk to child of sexual abuse if in father’s care unsupervised – Mother and father each have a history of illicit drug use – Court ordered immunoassay hair analysis test not undertaken by either – Agreed that there be final orders that the maternal grandmother have sole parental responsibility for the child but that she consult with the mother and the father before making decisions and that the child live with the maternal grandmother and spend supervised time with each of the mother and the father – Observations as to Rice v Asplund

Family Law Act 1975 (Cth) s 60CC

B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
Ganley & Ganley [2009] FamCA 641
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Lindsay & Baker (2007) FLC 93-347
M and M (1988) 166 CLR 69
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 98-383
Moose & Moose (2008) FLC 93-375
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Reifek v McElroy (1965) 112 CLR 517
Rice and Asplund (1979) FLC 90-725
WK v SR (1997) FLC 92-787

APPLICANT:

Mr Campbell

FIRST RESPONDENT:

Ms Wilson

SECOND RESPONDENT:

Mrs Wilson Snr

FILE NUMBER:

BRC

12805

2007

DATE DELIVERED:

23 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

29 & 30 October, 2, 3 & 4 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Travis

SOLICITORS FOR THE APPLICANT:

Fitz-Walter Lawyers

THE FIRST RESPONDENT:

Appeared on her own behalf

COUNSEL FOR THE SECOND RESPONDENT:

Ms Howe

SOLICITORS FOR THE SECOND RESPONDENT:

Sempre Vero Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance
Legal Aid Queensland

Orders

UPON THE WRITTEN UNDERTAKING OF THE PATERNAL GRANDMOTHER MRS CAMPBELL GIVEN ON 14 JULY 2009 (ANNEXED TO THE RECORD OF PROCEEDINGS ON THAT DATE) IT IS ORDERED

Parental responsibility

The maternal grandmother have sole parental responsibility for Z born … December 2005 (the child) and for decisions in relation to the major long-term issues concerning her including her education both current and future, religious and cultural upbringing, health and any changes to her living arrangements that may make it significantly more difficult for her to spend time with the parties or any of them.
Before making any decisions about any those issues the maternal grandmother must:
(a)advise the mother and father in writing of the decision intended to be made;
(b)seek the mother’s and the father’s written response;
(c)consider, by reference to the child’s best interests, any response by the mother and the father before making any the decision; and
(d)advise the mother and the father in writing as soon as reasonably practicable of the decision.
In exercising her sole parental responsibility the maternal grandmother is authorised to sign any application for the issue of a passport for the child and the requirement of the mother’s and the father’s signatures on any such application is dispensed with.

Living arrangements

The child live with the maternal grandmother.
The child spend time with the mother as may be agreed between the maternal grandmother and the mother provided that all time the child spends with the mother be supervised either by the maternal grandmother or by Ms M, Ms T, Ms P or Ms S and that the child’s time with the mother must not include any overnight time.
The child spend time with the father as may be agreed between the maternal grandmother and the father but failing agreement on each alternate weekend from 9.00am until 5.00pm on Saturday and from 9.00am until 5.00pm on Sunday provided that all time the child spends with the father be supervised by the paternal grandmother or if the paternal grandmother be unavailable by a person or persons nominated by the paternal grandmother to the maternal grandmother and approved by her in writing.

Changeover

Changeovers in relation to the child spending time with the mother be as arranged between the mother and the maternal grandmother.
Changeovers in relation to the child spending time with the father are to occur at the M Contact Centre (or other contact centre agreed in writing between the father and the maternal grandmother) with all costs of the contact centre for all changeovers to be paid by the father, provided that if changeover is to occur on a day when such contact centre is not open or available (for example, Christmas Day) it occur inside McDonald’s at P at the commencement of time with the father and inside the foyer of the W Hotel at the conclusion of time with the father.

Special days

If Mother’s Day is a day when ordinarily the child would be with the father that time be suspended on that day with no make up time.
If Father’s Day is a day when the child is not ordinarily with the father, the child spend time with the father, supervised in accordance with paragraph 6, from 9.00am until 5.00pm on that day.
On the child’s birthday, … December in each year, if the child is ordinarily with the father on that day the time cease at 2.00pm instead of 5.00pm.
If the child’s birthday, … December in each year, is a day when the child is not ordinarily with the father, the child spend time with the father, supervised in accordance with paragraph 6, from 9.00am until 2.00pm on that day.
If the mother’s birthday is a day the child is ordinarily with the father, the child’s time with the father cease at 2.00pm on that day instead of 5.00pm.
If the father’s birthday is a day the child is not ordinarily with the father, the child spend time with the father, supervised in accordance with paragraph 6, from 9.00am until 2.00pm on that day.
If Christmas Day is a day the child is not ordinarily with the father, the child spend time with the father, supervised in accordance with paragraph 6, from 9.00am until 2.00pm on that day.

Telephone communication

If the child while in care of the maternal grandmother requests telephone communication with the father the maternal grandmother facilitate that by telephoning either or both of the father’s mobile or home telephone number.
In relation to such the maternal grandmother may remain within hearing of the child and supervise the call provided that it not be on a speaker phone and not be recorded and provided further that if the child should become distressed the maternal grandmother may terminate the call.
Otherwise the father is not to telephone the child other than by prior arrangement in writing with the maternal grandmother.
The father must not initiate any telephone communication with the child.

Information

The parties must notify each other of his and her residential address, landline and mobile telephone numbers and, in the case of the father, the residential address, mobile and landline of the paternal grandmother.
The parties must notify each other as soon as practicable of an serious accident or injury concerning the child.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.
The parties must authorise the child’s kindergarten, pre-school or school to provide to each party at his/her request and expense copies of kindergarten, pre-school or school reports concerning the child and circular or other written information concerning activities usually provided to parents of children at the kindergarten, pre-school or school provided that this order is sufficient authorisation to do so.

Parties’ attendance at the child’s kindergarten, pre-school or school

The mother and the father each may attend the child’s kindergarten, pre-school or school for formal occasions such as parent teacher interviews, speech day, sport’s days and the like provided that on all such occasions the mother be accompanied by the maternal grandmother and the father be accompanied by the paternal grandmother or other person as approved by the maternal grandmother as provided in paragraph 6, and the mother and the father use their best endeavours not to come into contact with each other and otherwise obey all directions by the principal or person in charge and if requested to leave the premises by any such person do so immediately.

Parties’ communication

All written communications between the parties concerning the child be by email or SMS text message and not contain any subject matter other than as may relate directly to the child and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication within 24 hours of any change.

Mother and father drug use restraint

The mother and the father must not use any non-prescription drug at any time while the child is spending time with him/her nor for 12 hours before the child is to spend time with him/her.

Maternal grandmother – child’s attendance at medical and health practitioners

Other than for any medical emergency the maternal grandmother must not take the child to any general practitioner other than one at the M Family Medical Centre and not to any psychiatrist, paediatrician, psychologist or other health practitioner other than on referral by a general practitioner at that practice.
The independent children’s lawyer provide a copy of these orders and reasons for judgment to the practice manager of the M Family Medical Centre, by scanned email, with a request that a copy be kept on the child’s medical file.
The maternal grandmother must sign an authority to G Medical Centre to provide copies of all of its records concerning the child to the M Family Medical Centre.

Non denigration

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the child.

Maternal grandmother – overseas travel

If the maternal grandmother should propose to travel overseas without the child, the child for such period live with the paternal grandmother, provided that during such time the father not be present between 7.00pm and 7.00am.
The maternal grandmother may travel overseas with the child provided that at least 2 weeks notice in writing be given to the mother and the father together with information as to dates, mode of travel and itinerary, and provided further that any such travel be for not longer than one calendar month and not more frequent than once in each year.
The mother may accompany the maternal grandmother and the child for such travel, provided that the maternal grandmother strictly observes the supervision requirements in paragraph 5.

All other orders discharged

All other orders concerning the child are discharged.

All other applications dismissed

All other applications concerning the child are dismissed.

Independent children’s lawyer

The independent children’s lawyer is discharged, save in relation to any matters arising under the liberty to apply provision.

Liberty to apply

The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification; and if difficulty should arise in implementation of the order in paragraph 6 for alternative supervisors when the child spends time with the father for variation of that order without the commencement of new proceedings.

NOTATION: In the event that the mother or the father should produce results of an immunoassay hair analysis test conducted by the Victorian Institute of Forensic Medicine which shows that he or she has been drug free for the period of twelve consecutive months it is considered that such evidence would constitute a change of circumstances within the meaning of Rice v Asplund (1979) FLC 90-725.

IT IS NOTED that publication of this judgment under the pseudonym Campbell & Wilson and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12805 of 2007

MR CAMPBELL

Applicant

And

MS WILSON

First Respondent

And

MRS WILSON SNR
Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern Z born in December 2005 now 4 years whose parents are Ms Wilson (the mother) and Mr Campbell (the father). Mrs Wilson Snr (the maternal grandmother) is also a party to the proceedings, which were commenced by the father on 6 November 2006, before the child’s first birthday.
Initially, the competing applications before the Court concerning the child were as contained in the father’s amended initiating application filed 23 February 2009 (original filed 6 November 2006), the mother’s response filed 9 September 2009 and the maternal grandmother’s response filed also 9 September 2009, as updated by amended proposals made during the course of the hearing.
The parties and the independent children’s lawyer however agreed at an early stage of the proceedings that there should be final orders that the child live with the maternal grandmother and spend supervised time with each of the mother and the father, this circumstance arising because of a long history of the use of illicit drugs by each of the mother and the father, with neither, despite opportunity, being able to present evidence of any significant period free of illicit drug use.
The parties and the independent children’s lawyer further agreed that the maternal grandmother should have sole parental responsibility for the child, but that she consult with the mother and the father before making decisions as to any long-term issues. The proposed orders in this regard were expressed uniformly by each of the father, the maternal grandmother, and the independent children’s lawyer with the mother, who was self represented, also agreeing.
There was disagreement, however, as to the frequency of time the child should spend with the father; whether the supervision should occur at a contact centre or whether the supervisor should be the paternal grandmother; and a range of other issues which I need not presently list but will deal with in due course.
The evidence of the maternal grandmother, the mother, and two of the mother’s witnesses raised the serious issue of whether there has been sexual abuse of the child by the father, and, related to the sexual abuse allegations, whether there is unacceptable risk of sexual abuse of the child by the father if the child should spend time with him unsupervised.
At an early stage in the hearing I raised that there appeared to be no utility in determining the sexual abuse and unacceptable risk issues because any determination would not impact upon the parties’ agreement that there be a final order that the child’s time with the father be supervised. However, I was persuaded by Counsel that the parties need these issues determined; that the child’s best interests would be met by having these issues determined; and that in any event the determination of these issues would impact upon at least one of the principal matters not agreed, namely the frequency of time the child should spend with the father and whether the supervision should occur at a contact centre or the supervisor be the paternal grandmother. Further, it became plain that if these issues not be determined now then ultimately if in future proceedings the father should present evidence of a significant period free from illicit drug use and apply for an order that the child spend unsupervised time with him these issues would need to be determined at that stage which not only would be inconvenient but more difficult because of increased passage of time.

The issues

The principal issues thus for determination are:
(a)whether the evidence supports a finding that the father has sexually abused the child
(b)whether the evidence supports a finding that the father has not sexually abused the child
(c)whether there is unacceptable risk of the father sexually abusing the child.

Background matters

The child was born as the result of a relationship between the mother and the father which subsisted from about 2002 until about March 2006.
Between the child’s birth in December 2005, and March 2006, both the mother and the father, with the child, lived with the maternal grandmother.
The child has continued to live with the maternal grandmother and thus effectively has lived with her since she was born. This circumstance arose because of the history of illicit drug use by the mother and the father. As will be seen, despite many Court orders for the mother and the father to submit to drug testing, neither substantially has complied with the Court orders with effect that, presently, it is difficult to consider favourably any ultimate order other than that the child should continue to live with the maternal grandmother.
The mother, the father and the maternal grandmother all reside in the Gold Coast region. The mother presently resides at P, the maternal grandmother at U and the father at W with Mrs Campbell, the paternal grandmother.
The maternal grandmother is 56 years. The mother is 32 years. The father is 37 years. The paternal grandmother is 64 years.
The maternal grandmother is retired. The mother is usually in casual employment in hospitality, but not at the time of the trial. The father is a sportsman, but not in employment at the time of the trial. The paternal grandmother is retired.

History of contact since the separation

The parties and the independent children’s lawyer provided a schedule of time the child has spent with the father since the commencement of these proceedings in late 2006, cross referenced to the many interim orders made in the proceedings: see ex 8.

Interim orders made in the proceedings

Interim orders have been made on several occasions including 1 February 2008, 17 July 2008, 1 August 2008, 17 September 2008, 10 October 2008, 27 February 2009 and 14 July 2009.
It is not necessary presently to refer to the detail of those orders, and sufficient to observe that in respect of all of them the child has continued to live with the maternal grandmother and spend time with each of the mother and the father on various bases.
Several recovery orders have been made. However, it is not presently necessary to refer to those occasions or the several competing interim applications.

Orders for drug testing and available results

The parties and the independent children’s lawyer provided a schedule setting out the several orders made in relation to drug testing of the father and the mother and available drug test results: see ex 5. The schedule is important as a composite summary. However, it is not necessary to refer in detail to it because of the circumstance already mentioned that neither the mother nor the father was able to present evidence of any significant period free from illicit drug use.

Notice of Child Abuse

On 23 January 2009 the maternal grandmother filed a Notice of Child Abuse containing the following:
1.The Father has enacted activities with the child of sexual intercourse and masturbation, both directly and indirectly.
2.The Father has introduced the child to the word, “Fuck”, and taught her to relate this word to the opening of her legs.
3.The Father has introduced the child to the placement of objects in her vagina.
4.The Father has rubbed the child’s vagina with his hand, then smelled his hand, on more than one occasion.

The evidence

The father relied upon affidavits by himself and the paternal grandmother, Mrs Campbell.
The mother relied upon affidavits by herself, the contents of her questionnaire (to which she deposed) and an email in ex 1, dark blue tab, document 20, p35.
The maternal grandmother relied upon affidavits by herself, Ms P, Ms T and Ms S. Ms P and Ms T are friends of the maternal grandmother. Ms S is the partner of A Wilson, who is the one of the maternal grandmother’s two sons, who are A Wilson and T Wilson.
The independent children’s lawyer relied upon reports by Mr C, social worker, Dr G, psychiatrist, and Ms B, the family consultant appointed in relation to the matter, each annexed to their respective affidavits.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;

and:

·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

Principles relevant to findings of sexual abuse

In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

Approach to the analysis of evidence relating to sexual abuse disclosures

In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.

Principles relating to unacceptable risk of sexual abuse

In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“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.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

The evidence and findings in relation to the sexual abuse allegations

Ms Howe of Counsel, for the maternal grandmother, helpfully set out in her written submissions a concise schedule of the “behaviours” and “utterances” by the child, between February 2008 and September 2009, cross referenced to the evidence: see at pp4-7, which for ease of reference I incorporate into these reasons, without setting out.
Mr Travis of Counsel, for the father, identified in his written submissions, at par 6, the time frames opened by Ms Howe as to those during which it is alleged the child was “in some way sexually abused by the father”, being between:
(a)17 November 2007 and 1 February 2008;
(b)11 September 2008 and 17 September 2008;
(c)10 October 2008 and 27 February 2009; and
(d)14 July 2009 and 21 September 2009.
Mr Travis pointed to the circumstances however (par 7 of his written submissions) that:
·In the first period, the child was alone with the father for only 4 days in December 2007
·At all other times the father was residing with the maternal grandmother (period (a)), or was strictly supervised pursuant to Court orders (periods (b)-(d))
·During period (a) the paternal grandmother’s evidence was that the father had very little involvement in the bathing and changing of the child, and that for periods (b)-(d), the evidence from both the father and the paternal grandmother was that the father had nothing to do with the bathing, toileting and changing of the child and had no opportunity to do so.
The time frames opened by Ms Howe, and as summarised succinctly by Mr Travis, have effect that Ms Howe’s schedule conveniently may be viewed not only as a running chronology, but also as divided into the time frames identified by Ms Howe, as taken up by Mr Travis.
All of the evidence in relation to the child’s “behaviours” and “utterances” was given by the mother, the maternal grandmother, Ms T, who is a friend of the maternal grandmother, and Ms S, who is the partner of A Wilson, one of the maternal grandmother’s two sons.
Mr Travis, in his detailed written submissions, analysed each of the child’s alleged “behaviours” and “utterances”, and made the point, which is significant, that the child has not, it would appear, shown the alleged behaviours or made the alleged utterances (with one exception to which I will refer) to anyone outside of the mother’s / maternal grandmother’s circle, and in particular not to anyone else, it would appear, who has had opportunity to observe or speak with the child, including staff at the Day Care Centre which the child attends, staff at the contact centre and several professional persons the child has seen as listed by Mr Travis in his written submissions at pars 13-14, to which list and observations I would refer without setting out. The one exception to which I refer is at par 14 (p 10), being a reference to 9 June 2009 when the child was interviewed by Ms B, the family consultant engaged in the matter. Ms B recorded that on that date, 9 June 2009, the child told her “Daddy is naughty”. However, Ms B said that when she asked the child “who says this”, the child replied “Someone… . He does naughty things”. Ms B observed however, in other parts of her report, that the child had a “happy face” and was relaxed and spontaneous with the father and did not while with him show any insecurities or fear.
Dr G, psychiatrist, said that it is unusual for children of the child’s age to discriminate between settings in which they will display sexualised behaviour; but agreed that often, if it is displayed, it is in intimate settings such as at bath time.
The schedule referred to prepared by Ms Howe is chronological. It is useful however to “group” or to “categorise” the child’s behaviours and utterances according to their type, as to which it would appear there are six categories, as identified by Mr Travis, in his written submissions, par 17, which I will set out:
(a)the child is spreading her legs while being changed and saying “Daddy, Fuck, Fuck, Fuck”;
(b)the child’s insertion of a toy into her vagina;
(c)variations on the child rubbing her vagina with a flat hand and smelling it, and when told to stop saying “Daddy rubs me and smells it”;
(d)the child bouncing a stuffed dog on her lap and saying “Daddy touches me, this is Daddy”, and throwing the stuffed toy onto the floor, before pulling her “vagina” apart and asking that the maternal grandmother to “check” her;
(e)the child inserting her fingers “into her vagina” and in response to being told to stop, saying “Daddy makes my bottom sore”; and
(f)the child putting her hand inside the leg of her “undies”, “poking” at her vagina and referring to “pimples”.
Whilst there are variations, in my view Mr Travis’s summary is a fair categorisation of the child’s “acts” or “behaviours”.
Additionally, there was a disclosure by the child to the mother in August 2008 to the effect “Daddy touches my bottom”. However, I am satisfied on the evidence that this disclosure was prompted by the mother asking the child directly whether anyone “touches her privates”.
The “list” in Ms Howe’s schedule is disturbing, upon any first reading, and also when read with the affidavit material of the maternal grandmother, the mother, Ms T and Ms S.
However, when each alleged event or group of events is put into the context in which it occurred, or is alleged to have occurred, a quite different picture emerges of possible innocent explanation of some of the child’s “behaviours” and “utterances”, inherent improbability of other of her “behaviours” and “utterances” and indeed, as it would appear, some possible exaggeration by the maternal grandmother, who had ill disposition towards the father in a setting described by Ms McDiarmid of Counsel, for the independent children’s lawyer as one of “considerable hostility” by the maternal grandmother towards the father. In particular, Ms McDiarmid submitted that there are “many discrepancies and inconsistencies” in the maternal grandmother’s evidence. Ms McDiarmid referred also, as was the case, to “the changing nature of the maternal grandmother’s evidence under cross examination”: written submissions, p5.
Whilst the evidence of Ms T and Ms S is capable of being viewed more objectively than that of the maternal grandmother and the mother, Ms S, in particular, saying that it was the combination of the child’s words and actions which “shocked” her because she had “never seen anything like it”, nonetheless, as put by Ms McDiarmid, when examining sexual abuse allegations “the context, particulars and time frames are critical”: written submission, p5. To give context, the child’s words and actions witnessed by Ms S which “shocked” her included that in February 2008 the child all of a sudden “stuck her legs in the air”, “then started opening and closing them” while Ms S was putting on the child’s nappy, saying “fuck, fuck, fuck”; and on another occasion in the same month Ms S witnessed the child not wishing to have a bath, at which proposal “she really started to cry”, with the child subsequently becoming “hysterical, crying, screaming and hiding in the corner”. However, in context, this type of alleged behaviour and utterance by the child, referred to also in the maternal grandmother’s evidence (affidavit, pars 108-109) had occurred shortly after a recovery order made on 19 December 2007 obtained by the father against the mother, and, as such, at a time of major hostility between the parties.
Ms Howe made clear, however, on behalf of the maternal grandmother, that she conceded that the evidence does not permit of a finding that the father has sexually abused the child (written submissions, p3). Further, Ms McDiarmid submitted that a positive finding is not able to made that sexual abuse has occurred, because the evidence comprises inexact proofs, indefinite testimony and indirect inferences (written submissions, p2).
I accept the concession made by Ms Howe, on behalf of the maternal grandmother, and the submission made by Ms McDiarmid, on behalf of the independent children’s lawyer. However, it will be self evident in what follows that independently I have concluded that the evidence is insufficient to support any finding that the father has sexually abused the child.
In light of Ms Howe’s concession, and Ms McDiarmid’s submission, and the circumstance that the mother (who was self represented) supported the maternal grandmother’s position as stated by Ms Howe, I will limit my observations to some only of the alleged incidents and categories of incident.
·The child saying “Daddy, Daddy, Fuck, Fuck” or “Daddy, Fuck, Fuck, Fuck”, is likely to be innocent. The evidence is clear that the child is accustomed to spreading her legs when having her nappy changed, and on one occasion used the words “right back”, which typically can be an adult’s instruction in that task, which the child may have mimicked. Possibly, as the maternal grandmother observed to Mr C (see his report, par 78), the child “may well have been mimicking language” that she has heard the father use, as he “has a foul mouth”.
·In relation to the child rubbing herself and smelling her hands, Dr G observed that such is capable of being exploration, and is something that non-abused children also do, to explore their “smell”.
·The allegation that the child has “inserted” a toy “into” her vagina was retracted, and changed to a description of the child having a toy “near” her vaginal area.
·It is not likely that the child inserted her own fingers “into” her vagina. Indeed, Dr G said that it is unlikely that the child would be aware that she had an “orifice” in her vaginal area.
·The incident with the stuffed toy and the child asking the maternal grandmother to “check” her, asserting “Daddy checks me”, being October 2008, may have genesis in the mother’s conversation with the child in August 2008, to which I have referred, and/or the physical examination of the child in early 2008 which the maternal grandmother arranged with a Dr O, and/or the maternal grandmother telling the child in September 2008 that the father “does naughty things” to her: see Mr Travis’s written submissions, as to this, par 14(b).
·The child’s reporting an itchy vaginal area on one occasion was after a trip to the sand/beach and is likely to have innocent explanation as irritation from salt and/or sand.
·The “pimples” incident, I find, has innocent explanation as given by the father in his oral evidence, namely that, as a sportsman, he (like other sportsmen) suffers pimples/boils on his buttocks area, and the child, it would appear, may have overheard the father asking the paternal grandmother to check his buttocks for such.
·Otherwise, I would refer to the analysis of the evidence and the pertinent observations made by Mr Travis as to the various categories of incident, at pars 17-47 of his written submissions, which analysis and observations I accept as soundly based, with one qualification. In par 38, Mr Travis refers to the maternal grandmother’s demonstration of the child “rubbing” herself and then smelling her hand, which demonstration was a quick “touch” by her hand which was then quickly lifted to her nose area, which demonstration Mr Travis submitted “put a completely different light on the maternal grandmother’s accounts of rubbing and smelling”. At the hearing, when challenged about this, the maternal grandmother said her demonstration was “quick” because she was embarrassed, which explanation I said I would accept, and thus not place reliance on her demonstration.
In conclusion, it is sufficient for me to observe, that having regard to the evidence as a whole, even if Ms Howe had not made her proper concession, and Ms McDiarmid had not made her proper submission, independently I would have concluded that the evidence does not support any finding that the father has sexually abused the child.
I turn now to the finding sought by Mr Travis, namely that the father has not sexually abused the child.
In N & S (referred to earlier) at 82,714-5 Fogarty J referred to authority concerning the making of a finding that sexual abuse has not occurred.
Plainly, it is difficult to prove a negative. Further, a finding that sexual abuse did not occur is not the mere obverse of not making a finding that it did occur.
In some cases, such as Ganley & Ganley [2009] FamCA 641, relied upon by Mr Travis, the evidence is capable of such cogent factual analysis, even having regard to the importance of the subject matter and the other matters mentioned in s 140(2) of the Evidence Act, to support a positive finding on the balance of probabilities that sexual abuse did not occur.
This however is not such a case, as the evidence itself, as a body of evidence, is confused and confusing.
I have carefully considered all of the evidence, and Mr Travis’s criticisms of it, and his careful written submissions, in particular, at par 54, which I will set out, but determine nonetheless that the father has not discharged the onus which he assumed in seeking such a finding.
I have mentioned that I will set out Mr Travis’s written submissions, at par 54:
54.Moreover, the alleged behaviours, individually and collectively, can be readily explained by a far more sensible and likely account than that which must be posited by the respondents as part of their sexual abuse theory. A basic account in which the child perceives that there is tension between the father and her grandmother and mother; is given warnings about inappropriate touching with specific reference to the father or in a context that makes it clear to the child that daddy might “touch” her; that the child is either wittingly or unwittingly led to give answers that implicate the father (or the child learns that suggesting that the father does or condones certain behaviours is a means of getting out of trouble); and in which the respondents are motivated to view otherwise ambiguous events as conclusive proof of abuse (and report their “observations” consistent with their interpretation of events, safe in the knowledge that no one else is present to offer an additional interpretation based on overlooked contextual factors).
Mr Travis’s theme, in the paragraph set out, is that there are more credible explanations for the child’s behaviours and utterances, in context, which are “far more sensible and likely” than “posited” by the maternal grandmother and the mother as part of their “sexual abuse theory”.
Despite Mr Travis’s “sexual abuse theory” however, ably put in par 54 of his written submissions, the position is that, put shortly, it is inherently difficult to “prove a negative”, and rare indeed to be able to do so, absent proof of “alibi” for any specific allegations of actual acts by an alleged perpetrator of sexual abuse, including allegation of specific dates and times in relation to them. Mr Travis referred in his oral submissions to the circumstance that it is “inherently unlikely” that a father would sexually abuse his own daughter, and submitted that the father has in fact proved “alibi” because on all occasions the child was with him he was with the paternal grandmother, except for 4 days in December 2007, and otherwise was subject to supervision. I have referred to this aspect of Mr Travis’s submissions earlier. However, the father, on all of the evidence, did not prove that he has never been alone with the child. Moreover, unless allegations are made by reference to specific dates, times and surrounding events, as was the case in Ganley, it is virtually impossible to prove, by cogent evidence, that even what is vaguely alleged, and itself not proved, on the balance of probabilities did not occur.
For these reasons, I will not make a finding that the father did not sexually abuse the child. However, as I hope I have made plain, such does not carry any inference that the father did sexually abuse the child. Rather, because it is very difficult to “prove a negative”, in the particular circumstances of the evidence in the case it is not open to me, in my view, to make the finding sought by the father.

Unacceptable risk

Ms Howe submitted that there is a compelling case for a determination that there is unacceptable risk to the child of sexual abuse by the father if in his care unsupervised. She submitted that whilst the child’s behaviours themselves are concerning, the context of the child’s simultaneous utterances add “an extra dimension” and the matter of the time frames of when the child was with the father, in that context, raise an even higher concern.
Properly, Ms Howe put the case into the framework of the “accumulation of factors” principle, being the seventh in the summary of principles compiled by the Honourable John Fogarty which in Johnson & Page (above) at [71] the Full Court accepted with qualified approval, as I have set out already, namely that a judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered satisfy the standard of proof.
In this context, Ms Howe referred to and relied upon Dr G’s evidence in her report, p11, that:
…..if the Court accepts that the behaviour exhibited by [the child] has occurred I consider that there is a high level of suspicion that sexual abuse has occurred.
Ms Howe referred to Dr G’s oral evidence that it is the collective amount and type of behaviour, that is, its totality, rather than the individual behaviours which cause a serious concern as to sexual abuse having occurred or, inferentially, which in the future may occur.
Ms Howe referred also to Dr G’s evidence that it is plausible that the reason there have been no disclosures by the child at her kindergarten is that there has been less opportunity to display those behaviours which consistently are ones displayed after her bath or while being dressed.
Ms Howe relied also on Ms B’s report, par 45, in which Ms B recommended that the child’s time with the father be supervised because “the seriousness of the allegations” combined with the child’s young age have effect that in her opinion there is unacceptable risk to the child in spending unsupervised time with him.
Ms Howe referred to the evidence that the child did not display any disturbing behaviour “for a large period of time which coincided with the time the child was spending with the father at the contact centre” (written submissions, p11), that is, from and after March 2009 (cf Ms Howe’s schedule, September 2009 incident about the “pimples”) and urged that the following accumulation of factors amount to unacceptable risk:
(a)the number of observed behaviours and verbal disclosures;
(b)the fact that persons other than the primary carer have witnessed some of these behaviours;
(c)the timing of these behaviours and disclosures compared with when the father has spent time with the child;
(d)the magnitude of the possible harm to the child if the time with the father is not supervised;
(e)the age of the child;
(f)the observations of the experts.

The mother adopted Ms Howe’s submissions.
Ms McDiarmid urged that “the evidence does not establish that the father presents an unacceptable risk of sexual abuse” to the child (written submission, p1), and made careful observations as to the evidence (pp2-6), some of which I have referred to already and to which I would further refer without setting out.
Mr Travis relied on his observations as to the evidence in his written submissions to which I have referred already and to which I would further refer without setting out.
I have carefully considered all of the evidence, and the submissions, and am satisfied that even on the “accumulation of factors” principle being the seventh in the Honourable John Fogarty’s summary of principles, there is not an identified risk of sexual abuse of the child by the father. In particular, not only is it the case that none of the allegations is proved but, as submitted by Ms McDiarmid, “there are significant internal inconsistencies and discrepancies” between what the mother and the maternal grandmother described to Dr G, and other evidence (p2); there are “so many inconsistencies and discrepancies in the evidence surrounding each particular incident or allegation” (p5); and there was a “changing nature” in the maternal grandmother’s evidence under cross examination (p5). Ms McDiarmid referred also to Dr G’s evidence that each of the child’s behaviours is consistent with the behaviours of an “un-abused” child. There is also the circumstance that the allegations arose amid considerable hostility between the maternal grandmother and the father; and that the child’s alleged disclosure to the mother plainly was prompted, as I have observed earlier. I have dealt already with other evidence, including that of Ms S. Ms T’s evidence, to which I have not earlier specifically referred, was one of the “rubbing and smelling” incidents with which I have dealt as a category. Further, in relation to Ms T’s evidence, I would refer to Mr Travis’s written submissions at pars 35 and 39, which observations I would adopt, without setting out.
Further, I am attracted to the summary in Mr Travis’s written submissions, par 54, which I have already set out as a plausible criticism of the maternal grandmother’s and the mother’s “sexual abuse theory”.
Finally, Ms B’s opinion was based upon the seriousness of the “allegations”. Since then there has been a 5 day trial in which I have had the opportunity, as the trial judge, an opportunity not afforded to Ms B, to assess and weigh the evidence surrounding the “allegations”, or rather, put more accurately, the child’s “behaviours” and “utterances”, and the surmise arising from them. Similarly, whilst Dr G’s opinions referred to by Ms Howe I have considered carefully, and whilst I accept her opinion that the “totality” of the child’s reported behaviours rather than individual behaviours cause a “high level of suspicion that sexual abuse has occurred”, nonetheless it was based, it would appear, upon the information given to her (see the list of documents forwarded to her by the independent children’s lawyer, annexed to her affidavit) before the evidence was tested by cross examination of the witnesses. Thus, I prefer the submission of Ms McDiarmid (p2) that:
In her conclusion Dr [G] said, “If the Court accepts that the behaviour exhibited by [the child] has occurred, I consider that there is a high level of suspicion that sexual abuse has occurred.” One of the difficulties with that conclusion is that the “behaviour exhibited by [the child]” was that described to Dr [G] by the mother and the maternal grandmother. There are significant internal inconsistencies and discrepancies between those descriptions and other evidence so that the Court could not be satisfied that what was described to Dr [G] is in fact the behaviour that [the child] exhibited.
Further, Dr G could not have been aware of the “changing nature” of the maternal grandmother’s evidence under cross examination nor of the many “inconsistencies and discrepancies” which emerged at the trial during the cross examination process, which further matters underlie Ms McDiarmid’s written submissions.
As I have determined that there is not an identified risk of sexual abuse of the child by the father, it follows that it is not necessary to proceed to any “balancing exercise” as to whether any level or degree of identified risk of harm to the child by spending unsupervised time with him outweighs any possible benefit to her of spending such time unsupervised. If however it were necessary to proceed to such balancing exercise, I would refer, in relation to benefit to the child, to her interaction with the father observed in Ms B’s report at pars 32, 34, 35 and 37; and to my conclusion in relation to s60CC(2)(a) that there is no reason to doubt the benefit to the child, currently and prospectively, of having a meaningful relationship with the father.

The statutory matters

The child’s best interests

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

There is no reason to doubt the benefit to the child, currently and prospectively, of having a meaningful relationship with both of her parents: see McCall & Clark [2009] FamCAFC 92 at [108]-[122] especially at [119], [122].
However, each has a significant history of the use of illicit drugs, the mother heroin and the father ecstasy.
The mother has undergone detoxification on some two or three occasions, and in March 2009 entered a six month program of rehabilitation. However, she was discharged from that program after three months in controversial circumstances and thus did not complete it. The mother is genuine in wishing to put all drug use behind her, and according to her evidence has not taken any illicit drug since March 2009. She has however not undertaken the test recommended to her, namely immunoassay hair analysis, and thus has agreed that there be a final order that all time the child spends with her be supervised.
The father, in his oral evidence, admitted to using ecstasy four times during 2009. Similarly, he has not undertaken the recommended immunoassay hair analysis, and thus also agreed that there be a final order that all time the child spends with him be supervised.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

There is a need to protect the child from physical harm while with each of the parents, having regard to their illicit drug use history. This was not controversial, each agreeing, as I have said, to a final order that all time the child spends with each of them be supervised.
I have dealt already with the allegations of sexual abuse of the child by the father, and determined that there is no unacceptable risk to the child of sexual abuse by the father if the child should be in his unsupervised care.
The mother and the father each have a criminal history: see ex 1, dark green tab, pp1-2, the mother’s related to her drug history, with convictions in 1999, 2000 and 2008, and the father’s to the breach of a bail condition in 2008 and the dangerous driving of a motor vehicle in 2009.
However, as the child’s time with the mother and the father is to be supervised, it is not presently necessary to explore risk to the child relating to these occurrences.

Section 60CC(3) – the additional considerations

Any views expressed by the child

The child is too young to express meaningful views.

The nature of the child’s relationships

The child appears to enjoy beneficial relationships with the mother, the father and both of her grandmothers.
Ms B observed that the child is securely attached to both the mother and the maternal grandmother. In this regard however it might be observed that the parties separated when the child was only about 3 months, and since then she has spent considerably less time with the father than with the mother and the maternal grandmother. Further, the maternal grandmother has been the child’s primary carer for most of her life, and at times since the separation the mother also has lived with the maternal grandmother and the child. It is thus not surprising that the child’s attachment is with the maternal grandmother and the mother.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

The mother and the maternal grandmother both presented as firmly convinced that the father has sexually abused the child and expressed inability to accept any Court finding to the contrary.
It is likely thus that they may continue to hold that belief. However, Ms B recorded (report, par 29) that if there were no allegations and no concerns as to sexual abuse the mother would support the child spending time with the father “100%”.
Further, since the separation the maternal grandmother has facilitated the child spending time with the father and there is no present reason to doubt that she will abide the final Court orders that she do so, such that, if genuinely the child should be ill or for some other good reason is not able to attend time with the father, it is anticipated that the maternal grandmother would give him proper notice and adequate reason by email or text message or, if the Contact Centre is to be used for changeovers, via its message service.
The father on three occasions during the interim orders period withheld the child from the maternal grandmother and the mother. However, he explained his reasons for this and there is no present reason to think that he also will not abide the final Court orders.
There has been a history of denigration and hostility between the maternal grandmother and the mother on one hand, and the paternal grandmother and the father on the other hand. However, it is to be hoped that finality of the proceedings will bring commitment by all of them not to denigrate each other to or in the presence or hearing of the child so as to allow the child to develop a close and continuing relationship with each parent and with each grandmother.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living

As it is common ground that the child will continue to live with the maternal grandmother there will be no significant change in the child’s circumstances.
The child will complete her kindergarten in 2010 and then progress to prep and primary school in a similar location.
The child is well accustomed to spending time with the mother supervised by the maternal grandmother and, according to the evidence, is well familiar with the proposed alternative supervisors.
As will be seen, one of the matters for my determination is whether the child’s time with the father be supervised by the paternal grandmother, as sought by the father and not opposed by the independent children’s lawyer, or at the M Contact Centre, as sought by the maternal grandmother and the mother.
In recent times, the child’s time with the father has been partly at a contact centre and partly in the home of the paternal grandmother and the father. Thus, the child is accustomed to each.

Practical difficulty and expense

If the child’s time with the father is to be at a contact centre, or if changeover in relation to the child’s time with the father is to occur at a contact centre, costs will be involved. I will deal however more specifically with this matter below.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

This matter has been dealt with sufficiently. In short, the child’s parents’ capacities are impeded by their illicit drug use history.

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

This matter has been dealt with sufficiently.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The mother and the father each wish to care for the child and to assume the responsibilities of parenthood. However, their illicit drug history has prevented this.

Family violence involving the child or a member of the child’s family or family violence order

There are allegations of family violence by the mother against the father.
However, the overriding issues in the proceedings have related to the allegations of sexual abuse with less emphasis on any family violence history.

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

The circumstance of it being common ground that the child’s time with each of the parents be supervised renders this factor academic. Each of the mother and the father proposes to apply to spend unsupervised time with the child if and when each is able to provide evidence as to a significant drug free period. If and when either is able to show this, it may be likely that further proceedings will ensue.

Other matters

The authorities as to long term supervision

The case invites the question whether a final order as to long term supervision of the child’s time with the mother and the father may be appropriate as being in her best interests.
The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the child’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision: see, eg, Moose & Moose (2008) FLC 93-375 per Boland J at [118]-[119].

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

It is necessary to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with and communicate with the child and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child and spending time with and communicating with the child and has fulfilled or failed to fulfil the parental obligation to maintain the child.
The mother and the father have not successfully undertaken their responsibilities as parents because of their significant drug histories respectively.
By agreement in these proceedings, the maternal grandmother is to have sole parental responsibility for the child including in relation to making decisions as to the major long-term issues for the child.
The maternal grandmother gave evidence that the father has not provided child support to her in relation to the child. However, it appears that from time to time he has paid child support to the mother.
Largely, to her great credit, it is anticipated that the maternal grandmother will support the child, possibly with government allowance or assistance.
Discussion and conclusions
The circumstance that the parties agreed that there be final orders that the maternal grandmother have sole parental responsibility for the child and that the child live with the maternal grandmother and spend supervised time with each of the mother and the father has effect that it is necessary to refer only to the very few matters in respect of which the parties were at variance.

Supervision/supervisors

In relation to supervision of the child’s time with the mother other than by the maternal grandmother, Ms Howe proposed Ms M, Ms T, Ms P and Ms S as substitute supervisors. Ms M, as I understand the evidence, previously has acted as a supervisor, although she was not a witness at the trial. Each of Ms T, Ms P and Ms S were witnesses at the trial and each appeared to be suitable. No opposition was raised by the mother, Ms McDiarmid or Mr Travis to these fours persons being listed in the orders as alternative supervisors to the maternal grandmother while the child is spending time with the mother. Accordingly, I will make an order to reflect that.
In relation to the supervision of the child’s time with the father, Mr Travis proposed that the paternal grandmother be the primary supervisor. This was not opposed by Ms McDiarmid.
However, it was strenuously opposed by Ms Howe, and also by the mother (who adopted Ms Howe’s submissions). Ms Howe proposed that the child’s supervised time with the father be at the M Contact Centre.
The grounds of opposition included the paternal grandmother’s expressed belief under cross examination that the father had not “done anything” to the child; that on three occasions in the past the father has withheld the child, which the paternal grandmother said in cross examination was a “joint” decision on each occasion between her and the father, this demonstrating her inability to obey Court orders concerning the child and to ensure that the father does so; Ms B, the family consultant, expressed that if there be a determination as to unacceptable risk to the child in the father’s care she would have concerns about the paternal grandmother’s diligence in providing a high level of supervision; the paternal grandmother said in cross examination that she was not able to tell by the father’s demeanour when or whether he had used illicit drugs, combined with Ms B’s opinion that parents struggle with policing or having control over their adult children that are drug users; and the paternal grandmother’s somewhat naïve suggestion in cross examination that if as a supervisor she had difficulty controlling the father she would contact the independent children’s lawyer or the father’s solicitor, such without apparent awareness that a final order would have the effect that the independent children’s lawyer would be discharged and the father would not have a solicitor engaged in relation to any current proceedings.
I will deal with each of these matters in turn.
In relation to the paternal grandmother’s belief, I have determined that there is not any identified risk of sexual abuse of the child by the father and no unacceptable risk of such.
Whilst there is concern as to the paternal grandmother making “joint” decisions with the father on the three occasions the child was withheld contrary to interim orders, the matter since then has progressed to a final hearing and there is no present reason to think that the paternal grandmother would breach Court orders or assist the father to do so, other than in an extraordinary type of circumstance that would amount to the defence of reasonable excuse for contravention of a Court order.
Ms B’s reservation as to the paternal grandmother’s ability to be diligent in providing a high level of supervision was in the context of a determination by me of unacceptable risk of sexual abuse of the child by the father, which is not a determination which I have made.
As to the paternal grandmother’s ability to detect whether the father has used illicit drugs, and Ms B’s concern expressed about that, having observed the paternal grandmother in the witness box, including under intense cross examination, I am satisfied that although in the past on some occasions she has left the child in the unsupervised care of the father, such occurred, as I understand the evidence, before any order for supervision was in place, and that strictly and diligently she has complied with her obligation of supervision since interim orders were made in that regard. Further, the paternal grandmother gave detailed evidence as to the layout of her home, in which she and the father live, giving detailed examples of the child being within her vision at all times including in relation to any visit by herself or the child to the bathroom. Further, in my observation the paternal grandmother, throughout the trial process, gained an even deeper appreciation of her obligation as a supervisor of the child while spending time with the father and I have no reason to doubt that she will be vigilant.

As to the paternal grandmother’s suggestion that she would contact the independent children’s lawyer or the father’s lawyer if she had “difficulty controlling” the father, it is quite understandable that the paternal grandmother naïvely may have referred to the independent children’s lawyer or the father’s litigation solicitor as someone to contact. However, she would have the ability to contact the maternal grandmother or any of Ms M, Ms T, Ms P or Ms S, and to ensure the child’s return to the maternal grandmother as soon as possible, if such circumstance arose, or the ability simply herself to take the child to some other safe person or place.
Further, Ms McDiarmid, no doubt after similar careful analysis, supported that the primary supervisor for the child while spending time with the father be the paternal grandmother. Accordingly, I will order that, and I reject the maternal grandmother’s and the mother’s case that the child’s time with the father be at the M Contact Centre, as unnecessarily restrictive. Further, Ms B said in her report, par 45, which I accept:
45.….. I do not believe that [the child] and [the father] can effectively maintain an on-going relationship for a few hours a fortnight at a contact centre. Thus, unless there is further information that substantiates that [the child] is at risk in her father’s care, it I my view that day time on Saturday and Sunday each alternate weekend supervised by the paternal grandmother should enable [the child] and [the father] to maintain an on-going relationship and ensure her safety.
As to alternative supervisors, although the paternal grandmother named several people in her evidence, all of whom well may be suitable, unfortunately none was a witness so that their suitability was not able to be assessed. These included Mr and Mrs G, Mr and Mrs J and Ms W. This circumstance lead Ms McDiarmid to propose that alternative supervisors be “such other persons approved by the Court”. However, such would not achieve finality. Another proposal was a person registered as a Blue Card holder. However, there would be difficulty with such person not being known to the Court as a witness or to the maternal grandmother. There is however evidence that the maternal grandmother and the paternal grandmother, despite past differences and hostility, are willing to co-operate in relation to the child. Thus, doing the best I can, I will include in the orders that any alternative supervisor of the child’s time with the father be as proposed by the paternal grandmother to the maternal grandmother and approved by her in writing. I have in mind, for example, that the maternal grandmother may choose to meet the persons named above for the purpose of her approval as an ordinary incident of her having sole parental responsibility for the child. In case however this should not be successful, I will include in the liberty to apply provision that the matter be referred directly back to me if difficulty should arise.

Frequency of time

The time the child spends with the mother, sensibly, will be as agreed between the maternal grandmother and the mother. There was no opposition to this by Ms McDiamid or Mr Travis. Indeed, each supported that, as reflected in the minute of orders each proposed.
As I have determined that the child’s time with the father need not be at a contact centre, and as the father and the independent children’s lawyer each proposed Saturday 9.00am until 5.00pm and Sunday 9.00am until 5.00pm on alternate weekends, unless otherwise agreed, that will be the order.

No overnight time

The father and the independent children’s lawyer proposed that the child’s time with the mother not include any overnight time.
The circumstances of the mother’s drug history have effect that such unquestionably is in the child’s best interests for her protection and I will so order.
The same will apply to the father, based upon the same reasoning.

Changeover in relation to the father and costs of changeover

Mr Travis submitted that changeover for commencement of time with the father be inside McDonald’s at P and at the conclusion in the foyer of the W hotel at W. Mr Travis resisted that changeover be at a contact centre, because of the cost factor, which he said from the Bar table (without demur) presently is $60 per changeover day, or $120 thus per changeover for each alternate weekend time (being two consecutive days), which money otherwise could be put towards the child’s support, but submitted that if I should determine that changeover occur at a contact centre so as to be independently supervised, the maternal grandmother and the father should share equally the contact centre’s changeover costs.
Ms McDiarmid urged, and I accept, that the child’s best interests would be served by the least risk of hostility between the maternal grandmother and the father at changeover, that at an unsupervised public place there was such risk, and that as such is likely to be minimised or avoided by independent observation and supervision of changeover at a contact centre, such is in the child’s best interests. Ms McDiarmid pointed also to the circumstance that the contact centre offers a message service which would also be beneficial to the maternal grandmother and the paternal grandmother. In my view, such reasoning is sound, and I accept it. Accordingly, I will order changeover at the M Contact Centre, which was nominated by the parties, or such other contact centre as they may agree in writing, with a proviso that if changeover is to occur on a day when such contact centre is not open or not available (for example, Christmas Day), it occur inside McDonald’s at P at the commencement of time with the father and inside the foyer of the W hotel at W at the conclusion of time with the father.
As to the costs of use of the contact centre for changeover, the maternal grandmother gave evidence that the father does not pay her any contribution towards the child’s costs of support (although, at times, he has paid child support to the mother). It was put also that as the father is not presently in employment, the costs should be shared. However, the reality is that the maternal grandmother also is not in employment and, as the child’s primary carer, is responsible for all of the costs of raising the child including kindergarten fees, food, clothing, entertainment and the like. Ms McDiarmid submitted that having regard to this circumstance, even if the matter is viewed on the “no fault basis” as to the desirability of supervised changeover, it is reasonable that the father solely be responsible for the contact centre’s changeover costs. I accept this submission as plainly fair, having regard to the cost burden already voluntarily undertaken by the maternal grandmother in relation to the child. Net, this will cost the father $60 per week ($120 each alternate weekend).

Special days

Mr Travis proposed orders in relation to special days, by way of initial summary of argument at the outset of the trial, and as modified by way of proposed orders at the conclusion of the hearing. In my view there should be provision for special days, which I have formulated in the orders, and consider to be in the child’s best interests having regard to the importance of such days to a child.

Telephone communication child/father

Ms Howe sought an order that the father not initiate any telephone communication with the child, and a further order that if the child should request of the maternal grandmother to communicate with the father by telephone the maternal grandmother make every reasonable effort to facilitate that communication.
Mr Travis and Ms McDiarmid supported the second of those proposed orders but not the restriction.
In my view, however, there is an evidentiary basis for the restriction as sought by Ms Howe: see ex 1, dark blue tab, pp37-67, in particular at pp65-67; and as such, I will order the restriction as in the child’s best interests, but with a modification, expressed in the order.
The father said in his evidence that from his perspective it is more important that the child spend time with him than that he and the child have telephone communication, other than if the child should wish to have telephone communication with him.
Thus, the restriction is not inconsistent with the father’s own case.
There was reference in the material to the maternal grandmother using a speaker phone, which is likely to impede the child’s interaction with the father. I will order thus that the maternal grandmother may remain within the hearing of the child while she has telephone communication with the father, but that the call not be on a speaker phone, and further, having regard to the evidence to which I have referred, that she may terminate any call with the father if the child should become distressed.

Attendance at child’s kindergarten, pre-school and school

This was not a matter canvassed during argument, possibly because of concentration on other issues. However, in preparing these reasons it became apparent to me that any comprehensive set of final parenting orders which did not refer to attendance at the child’s kindergarten, pre-school or school may create an unintended gap and thus be ground for future dispute. However, by way of procedural fairness I will hear argument in this regard before deciding to pronounce such an order. In my view, such would be in the child’s best interests because of the normalcy of children’s parents attending important school events and having regard to the importance to a child of such attendance.

Maternal grandmother – child’s attendance at medical and health practitioners

The material shows that the maternal grandmother, no doubt acting in what she believed to be the child’s best interests, took the child to several medical and health practitioners including for genital examination. In my view, it would not be in the child’s best interests for the maternal grandmother to take her to any practitioner not already familiar with the child’s history, these orders and reasons for judgment. During argument, orders were proposed by me in relation to this which met with the agreement of the maternal grandmother, the mother, the father and the independent children’s lawyer. Accordingly, I will be make those orders.

Child’s passport and overseas travel

These orders, with minor modification, were as proposed and argued and in my view are in the child’s best interests.

Mother and father drug use restraint

The mother and the father each did not oppose orders restraining any use by them of illicit drugs while the child is with them or during the preceding 12 hours. Accordingly, I will make such an order.

Undertaking paternal grandmother

On 14 July 2009, the paternal grandmother provided a written undertaking to the Court (annexed to the record of proceedings of that date) relating to her personal supervision of the child’s time with the father and her personal attention to the child’s bathing and toileting. The paternal grandmother offered the continuance of that undertaking which in all of the circumstances in my view is prudent despite my finding that there is no identified risk to the child of sexual abuse by the father. The undertaking, in its first part, refers to supervision “pursuant to order 3(b)”, which was a reference to an interim order. Plainly, the undertaking in its context, has reference now so as to delete the words “pursuant to order 3(b)”, and to apply to the new order which I will make in relation to the paternal grandmother’s supervision of the child’s time with the father.
The orders thus will be prefaced upon continuance of the undertaking, with deletion of the words “pursuant to order 3(b)”.

Other orders

Otherwise, the orders either are as proposed by the parties or are non controversial.

Long term supervision

I am mindful, as I have mentioned, of the undesirability of long term or indefinite supervision orders. However, the particular circumstances of the case have effect that the principles relating to long term supervision apply, as indeed recognised by the parties and the independent children’s lawyer by their agreement to such.

Rice and Asplund

I am mindful of the principle in Rice and Asplund (1979) FLC 90-725 (see also Miller & Harrington (2008) FLC 98-383, and Marsden & Winch [2009] FamCAFC 152). I would observe, as I did during argument, that in my view a significant change of circumstances would be shown in the event that the mother or the father should produce the results of an immunoassay hair analysis test conducted by the Victorian Institute of Forensic Medicine that shows that he/she has been drug free for the period of twelve consecutive months. The independent children’s lawyer urged that a notation be made to the orders to this effect, and such was supported by the parties. It is plain that any intimation by me in these proceedings is not binding upon any other judge in the future. However, I will make the notation in case it is of assistance in any future proceedings.
Mr C, in his report at par 108, explained the technology relating to immunoassay hair analysis as follows:
108. The technology exists to determine with some confidence whether or not [the father] and [the mother] are using illicit drugs. Immunoassay hair analysis is a test based on the fact that drugs enter the hair from the bloodstream, and remain there in proportion to the amount taken, not diminishing over time. As hair grows, on average, 1 cm each month an analysis of 3 cm of hair closest to the scalp, for example, can determine whether or not a particular drug has been used in the previous three months. This testing method has an extremely high level of accuracy and there are no known processes to mask test results. It is my understanding that this form of drug testing is available through the Institute of Forensic Medicine in Victoria.
Previous interim Court orders have required that the mother and the father undertake such analysis after the period of 6 months drug free. Not only has neither done so, but each has such a long history of illicit drug use that in my view the period should be 12 months to warrant the institution of fresh proceedings.
There is no point in making further orders that the mother and the father have such drug testing. In the past, for one reason or another, the tests have not been undertaken.
It will be thus a matter for the mother and the father individually, if they wish more actively to parent the child, and have the Court consider an order that the child spend unsupervised time with them, or either of them, to be left to their own pro-activity to demonstrate a willingness and ability, in their lives, to put the child ahead of drug use.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:

Date: 2009

[2009] FamCA 1260

23 December 2009

Key Legal Topics

Areas of Law

Family Law

Evidence