CERWIN & CERWIN (No.2)

[2019] FCCA 3339

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERWIN & CERWIN (No.2) [2019] FCCA 3339

Catchwords:
FAMILY LAW – Interim arrangement for child to spend time with her father – allegations of sexual abuse – father denies allegations and asserts mother is alienating the child from him – assessment of risk of sexual abuse at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk arising – questions to be asked – best interests – meaningful relationship.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

M & M (1988) 82 ALR 577

N & S (1995) 19 Fam LR 837

Slater & Light (2013) 48 Fam LR 573

W & W [2007] FMCAfam 602

Applicant: MS CERWIN

Respondent: MR CERWIN

File Number: ADC 4232 of 2012

Judgment of: Judge Brown

Hearing date: 4 October 2019

Date of Last Submission: 4 October 2019

Delivered at: Adelaide

Delivered on: 4 October 2019

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Harry Alevizos

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Carlin Lawyers

ORDERS

1. The child X to spend time with the father from 10.00am Monday 7 October 2019 until Q Airlines departs Adelaide for City B on 13 October 2019.

2. To give effect to the terms of this order, the child is to be exchanged between the maternal grandfather and the child’s aunt, Ms R, at the father’s home located at S Street, Suburb T, SA.

3. The father be restrained, and an injunction be hereby granted restraining the father, from:

   (a)Imposing on the child’s privacy while she is bathing, showering or undertaking her ablution’s; or

   (b)Entering her bedroom after she has retired for the night without her permission.

4. Father arrange for child to have telephone time on 6.00pm Thursday 10 October 2019 and Saturday 12 October 2019 at 6.00pm.

5. Further consideration of the matter is adjourned part-heard to 8 October 2019 at 9.45am for directions NOTING the parties are excused from attending if they wish.

IT IS NOTED that publication of this judgment under the pseudonym Cerwin & Cerwin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4232 of 2012

MR CERWIN

Applicant

And

MS CERWIN

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally during the hearing of the parties’ competing applications.  Given that they have been referred to in the subsequently delivered final judgment, I have arranged for them to be transcribed.

2. The parties who are involved in this matter are Ms Cerwin and Mr Cerwin, and they are the parents of a child, X, who was born in 2007, so X is 11 years of age, and she will be 12 early next year.  It is common ground between the parties that she is a child who is entering puberty, so issues to do with her privacy and autonomy are relevant.

3. Essentially, this afternoon I have to decide what arrangements should be put in place for X to spend time with her father following a Court process which has occupied some six days in two tranches, which have occurred in, I think, July of this year, and more recently from Wednesday of this week until a short, short time ago.

4. By way of background, the parties began a relationship together in 2004.  When they began their relationship, the mother had a child from an earlier relationship.  He is Mr C; Mr C is now an adult, but Mr C continues to live with Ms Cerwin and, indeed, with X in City B. 

5. The parties married in 2006, and there is no dispute that they separated in difficult circumstances in 2012.  As I indicated yesterday in some earlier reasons that I delivered when I was asked to disqualify myself, the parties each have significant connections to the City B area.  However, during much of their relationship, they lived in Adelaide. 

6. On separation, Ms Cerwin, Mr C and X returned to City B, where, from Ms Cerwin’s perspective, she had familial support.  From the father’s perspective, given the distance involved, that was a significant incident, and he was concerned that the move, of which he did not approve, might interfere with his relationship with X and, indeed, with Mr C. 

7. It is Mr Cerwin’s position that during the parties’ relationship and subsequent marriage he was a father figure to Mr C.  Anyway, that was the background to an earlier round of proceedings which commenced very shortly after the parties separated in November of 2012.  During those proceedings, the children, X and Mr C, were independently represented and a family report was prepared by a family consultant, Mr D, released to the parties on 1 May 2013.

8. It is of note that Mr D recommended in his report dated 1 May 2013 that both X and Mr C, indeed, return to live in the Adelaide metropolitan area, although it was his view that their interests would be served by living with their mother.  It was also recommended that Mr C have time with Mr Cerwin subject to his wishes, it being the mother’s case that the child has disclosed being assaulted by Mr Cerwin with a belt.

9. In any event, when the matter was listed for trial, the parties were able to resolve issues between them through a consent order.  Essentially, the father did not pursue his application that Ms Cerwin and X return to live in the Adelaide area, but as a corollary of that it was ordered by consent that he spend regular periods of time with the child during school holidays, in particular for 10 days during the short school holidays, and for the second, third, fifth and sixth weeks, alternating with the first, second, fourth and fifth weeks of this Christmas school holiday.

10. Other orders were made in respect of the ability of Mr Cerwin to go to City B from time to time during the school term.  Mr C was authorised to spend time with his father, subject to his wishes.  It’s common ground that Mr C has not pursued a relationship with Mr Cerwin in the period since.  The background to those orders include Mr D’s assessment that X had a viable relationship with her father, but Mr C was negative in respect of him.

11. Because the matter was resolved by consent, issues to do with whether Mr Cerwin did or did not assault Mr C with a belt have never been resolved.  It may be the case that Ms Cerwin believes that the child was assaulted.  Mr Cerwin denies it.  It was not resolved at the time of the consent orders, though necessarily by her agreement the mother conceded that it was in X’s best interests to pursue a relationship with Mr Cerwin.

12. Thereafter, it seems to be the case that X did spend regular periods of time with the father.  The matter returned to Court in February 2018 with a contravention application.  It was the father’s position that the mother was not following orders in respect of X spending time within Adelaide.  That really has been the issue that has occupied the six days of hearing before me. 

13. During those six days, I have heard evidence from each of the parties at some length, I should say.  I have also heard evidence from Mr D, who was commissioned to write a second report regarding X, which he did on 15 October 2018.

14. It is, essentially, Ms Cerwin’s position, as I understand it – and I hasten to add that I am summarising her position, and in due course I will analyse her evidence with more detail – but it is her position that throughout the latter part of 2017 and on into 2018, the child became increasingly clingy, anxious and deregulated in anticipation of spending time with her father and afterwards.  She suspected, or she has deposed that she suspected, that something was untoward in the father’s household.

15. The parties’ relationship with one another, exacerbated no doubt by the earlier proceedings which involved the allegations of abuse which were in regard to Mr C, which were countered by Mr Cerwin in turn making very serious allegations against Ms Cerwin and her fitness as a parent, have ensured that there is no easy parenting relationship between the parties concerned, and the issues as to the chid, X’s, travel between City B and Adelaide and the expense of that has been an issue of contention. 

16. In any event, in general terms, it is the mother’s position that she thought something was untoward in terms of what had happened to X, and it’s her position, as I understand it, that she was encouraging and directing of X to spend time with her father, but she was resolute in her – that is X – resistance to spending time with her father.

17. I should also say that there are suggestions and allegations that prior to 2017 the child had had unexplained bruising whilst in her father’s care and it is the mother’s position that the child’s vagina was inflamed, both during the periods of time which she had spent with her father and afterwards. 

18. So the father’s position is that he denies any inappropriate conduct towards the child and, from his perspective, he believes that the only logical explanation as to these issues and complaints is that the mother has made them up or has fabricated them.  The mother has said in her evidence that she fervently believes that the father must have done something untoward to the child.  So the central issue in this case centres on issues to do with child protection. 

19. The father’s position is that if the Court gives undue credence to the mother’s concerns that must mean that there is a very grave risk that he will lose a close and loving relationship with X, whom he loves dearly. 

20. Before turning to the evidence in more detail, I need to outline as best I can the legal principles I have to apply in this case.  As I say, I have to consider child protection issues.  In the case of Deiter & Deiter,[1] the Full Court of the Family Court said:

    “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…We accept, however, that it is always a question of degree depending on the evidence that is before the court.”

    [1]  Deiter & Deiter [2011] FamCAFC 82 at [61]

21. The Full Court in another case called Slater & Light[2] assessed the task of assessing risk in the following terms:

    “The 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.”

    [2]  Slater & Light (2013) 48 Fam LR 573 at 583

22. Slater & Light reflected an earlier decision of the High Court in M & M,[3] in which the unacceptable risk test was first postulated.  The Court should not grant access of a child to a parent if there is an unacceptable risk of the child coming to harm.

    [3]  M & M (1988) 82 ALR 577

23. Accordingly, in cases involving allegations of harm, the Court must attempt to analyse, as best it can, all the evidence available, because the consequence of getting any case wrong, particularly one regarding sexual abuse, are potentially horrifying. 

24. For obvious reasons, the detriment to a child of being subjected to sexual abuse – and these are the words of Fogarty J in N & S[4] – represents 

    “the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development.  Its effects, both in the short and long term, can be devastating.” 

    I do not discount the seriousness of the issues which I must determine.

    [4]  N & S (1995) 19 Fam LR 837 at 855

25. On the other hand, it may be equally emotionally devastating to a child to deprive that child of a living and worthwhile relationship with a parent on the basis of a risk which is nebulous or elusive in nature, existing only in the mind of the other parent concerned. 

26. In addition, it is not unknown in circumstances where parties are deeply suspicious of one another and do not communicate well for actions and events to be misinterpreted, for the words of children to be misconstrued, or for the ordinary exigencies of life to be misinterpreted.  Children do have bruises due to issues to do with hygiene.  Children do suffer infections and inflammation of their genitalia.

27. Where parties do mistrust each other, as is in this case, such circumstances provide fertile grounds in which actions can be misconceived or misunderstood.  It is also, regrettably, not unknown for allegations to be made for tactical or mischievous reasons. 

28. In addition, it may be difficult for a decision-maker to differentiate between various scenarios and, in some cases, there may be a combination of factors.  Again, Fogarty J in N & S[5] said:

    “Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, or as a result of misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”

    [5] Ibid at 856

29. Fogarty J, in another case, W & W,[6] went on to explain how, in concrete terms, the court is to apply the unacceptable risk test.  He said as follows:

    “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.  In asking whether the facts of the case do establish an unacceptable risk, the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegation?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence is provided?  Are there satisfactory explanations for the allegations apart from sexual abuse?  What are the likely future effects on the child?”

    [6]  W & W [2007] FMCAfam 602 at [30]

30. This is not a catalogue of the correct questions but a reminder that questions such as these are required in deciding whether an unacceptable risk may be shown.  The weight to be attached to the various answers to the relevant questions will invariably vary from case to case, but it is essential that questions like these be asked. 

31. As I say, Mr D was tasked with examining X in October of 2018.  He interviewed X at some length and he has given some evidence about that process today.

32. There was difficulty that he experienced in X coming in to see him because, initially, she was resistant to separating from her maternal family.  It is his evidence that after some – and this is his expression – cajoling, the child was persuaded to come in to his consulting rooms and meet with him and, indeed, with her father. 

33. Thereafter, Mr D described a process whereby, through a gentle process of engagement, Mr Cerwin was able to engage with X and, thereafter, the two were able to have a happy interaction with one another.

34. In this context, X said to Mr D that her mother did not like her father and frequently worries about her, meaning her mother.  X was concerned that, if she began to spend time, her mother would be lonely without her.  She was also aware that the mother held concerns by virtue of having viewed old photographs showing bruising purportedly perpetrated by Mr Cerwin. 

35. In this context, Mr D asked X to express three wishes.  The first was for her mother not to smoke cigarettes, the second wish was for her father to lose weight, and her third wish was for her parents to reconcile.  Mr D said the most important thing she wanted the judge to know – that is, X – was that her parents should stop fighting and/or butting in conversations.

36. Accordingly, it was, as I recall, in Mr D’s view that X has a viable and warm relationship with her father.  In his assessment, Mr D conceded that, over many years, Ms Cerwin has had an anxious personality. 

37. As I observed yesterday, it is also the case that Ms Cerwin has stated that she has no confidence in the Family Law system as a consequence of what happened to one of her relatives some many years ago now, and I will not discuss that any further.

38. It is, of course, the case that, although Ms Cerwin is entitled to not have any confidence in the system, that is her entitlement.  The fact remains it is my obligation and responsibility to adjudicate the dispute according to the law in this country. 

39. Mr D opined that, in his view, after asking X the questions he did and after X had told him what she did, that if sexual abuse was occurring, it would be highly unlikely that X would want her parents to reconcile and it is the case, as I say, that, at this stage, X was 11 years and eight months of age, and so, at least in theoretical terms, able to express in language what she believed had or had not happened to her.

40. In this context, it is also of note that, at an earlier stage of the proceedings, that is, in September of 2018, about two or three weeks prior to Mr D seeing X, it was arranged for X to consult with a family consultant, Ms J, in an attempt to get to the bottom of why X was resistant to spending time with her father.  On that occasion, Ms J reported that X gave what she – that is, Ms J – described as a convoluted story about her father giving her a Milo drink at night, which X believed had been drugged.  X said:

    “The Milo tastes off…I don’t know why…I can’t remember why…I remember how I forgot…I knew he was spying on me…I didn’t want to tell him what he was doing because I knew it would break his heart…I remember I was having the Milo before I didn’t remember anything after that…I don’t like how Milo tastes when I’m with him…when Mum gives it to me or U…gives it to me it tastes normal.”[7]

    [7]  Child Inclusive Conference Memorandum dated 20 September 2018

41. In that context, at the end of the interview with Ms J, X expressed some reluctance at the prospect of her father knowing about that account.  She was also apparently acutely aware that her mother had difficulties in respect of issues to do with airfares between City B and Adelaide. 

42. X averted her eyes from Ms J’s whilst this was being discussed.  Ms J – and I appreciate her evidence has not been assessed in any detail at this stage – was concerned that X was a child under pressure, particularly about issues to do with airfares.

43. Ms J, again – and I appreciate again that she has not given evidence – was concerned that there might be a prospect that the mother was taking steps to alienate X from her father.  Ms J was not convinced that the story about the drugged Milo was likely to be accurate. 

44. For obvious reasons – and I have explained this already – the only people who know whether X has been sexually abused are X herself and the person who abused her, if she has been abused.  Indeed, if the allegation is that X has been abused while she has been under the influence of a soporific drug, X herself cannot know what happened to her because she must have been unconscious.

45. Mr Cerwin has given evidence.  I have to make some sort of assessment of whether I think he is a trustworthy person and he is telling the truth.  I appreciate that people can lie.  They can lie convincingly but he was cross-examined at great length.  He, in my impression, was an unflappable person and he resolutely denies that he has done anything inappropriately towards this child. 

1. Mr D, in the 2018 report, recommended that Ms Cerwin have some therapy to deal with her anxiety.  The issue about the drugged Milo was investigated with Mr D and he describes the child as speculating that she had been drugged because she could not remember transitioning.  That was an issue I do not think was discussed with Mr D in any great detail.

2. Now, the issue at this stage, and indeed in the case as a whole, is should the child be deprived of potentially having a worthwhile relationship with her father on the basis of an allegation of abuse.  If that allegation is true or there is a risk to such a degree that is unacceptable that it might possibly be true, obviously, the Court cannot countenance it. 

3. Ms Cerwin has said she believes that the allegation is true.  However, it is not her task to assess the risk; that falls to me.  However, as the child’s primary carer at the moment, I have to consider the impact on her of the child spending time with her father and what is a proportionate response to the degree of risk as I assess it.

4. In any case to do with the child, I have to consider the best interests of the child. They are the paramount or most important consideration. The law in the Family Law Act, in section 60CC lists a long list of matters I have to take into account.

5. I have to consider two matters above all.  They are designated as primary considerations.  Firstly, I have to think of the benefits to a child of having a meaningful relationship with both of the child’s parents, and, secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The law is clear that pre-eminence has to be given to protective concerns.  However, having said that, I am not to ignore the benefits of X having a meaningful relationship with both her parents, particularly, in this case, her father.  The evidence of Mr D is clear that he is of the view that it would be detrimental to the child if she loses a relationship with her father. 

7. The difficulty in the case is that, ultimately, it may be necessary for me to make some form of ruling as to whether the mother has either fabricated these concerns about X, or has fallaciously believed that there is a risk as a consequence of her perception of a number of factors in the jargon that is known as cognitive bias; essentially, that her thinking is that the child has been sexually abused, and, although there may not be objective evidence to support that conclusion, she remains convinced of its truth.

8. In those circumstances, there is a risk, I think, and Mr D accepted that there was a risk, that the child will be exposed to the mother’s fear and anxiety about the risk, and there will be, what Mr D called, a feedback loop:  the mother has her fears, she will talk to the child, the child will assume the mother’s concerns and will, in turn, share her mother’s cognitive bias regarding her father’s conduct towards her.

9. In those circumstances, the child will decline to spend time with her father, and from Mr Cerwin’s perspective, there is little he can do other than to invoke the assistance of the Court to enforce the orders which were granted in his favour.

10. It is, at this stage, his position, the only way, invidious though it may be, that X can have a proper level of relationship with him is if the child is removed from the mother’s care and placed in the care of him.  Mr D recommended that X should continue to spend time regularly with her father. 

11. He also recommended that if Mr Cerwin moved to City B that the Court should consider something analogous to a shared care arrangement for X.  As I have said, he also recommended that Ms Cerwin have some assistance to deal with her anxiety about arrangements for Mr Cerwin to spend time with X.

12. That report was released to the parties in the lead up to the final hearing, and it was, in broad terms, favourable of Mr Cerwin’s position.  Since that time, it appears to be the case that there has been an escalation of the child’s complaints, whatever they are, and I will come to those in a moment, and Mr Cerwin has experienced growing difficulties in respect of spending time with his daughter.  That was the background to the matter returning to Court in mid-May of 2019.  X came to Court with her mother.  She was in the child care section, as I recall it.  I think I am right about that.

13. Ms Cerwin was represented by her solicitor, Mr Alevizos; Mr Cerwin was represented by his barrister, Mr Dillon.  Though, as I recall during the hearing, Mr Dillon was called away.  It was clearly Mr Cerwin’s position that, given the child was in Adelaide, it was appropriate for him to spend time with the child on the basis of what, firstly, Ms J had said and what Mr D had said.  I agreed with him.  I was not prepared to speak with X, and it is not usually appropriate the judges speak with children. 

14. The proper way to canvas a child’s views is usually through a family report or a family consultant.  Anyway, I was of the view there should be some time between X and her father.  Ms Cerwin was not pleased about that, and I can understand why that would be the case. 

15. In any event, X reacted angrily and with difficulty to that arrangement.  Mr Trevaskis and Ms J were able to broker the child’s transition, and they said that, ultimately, X left the Court with her father and grandmother sullenly but without resistance.

16. Mr Cerwin’s evidence which, at this stage, I have no reason to discount, is that, as with his experience with Mr D, once the child had come into his orbit, she relaxed and settled into his care and transitioned easily. 

17. From his perspective, the danger is that, unless he interacts regularly with X, either consciously or tacitly, the child will be caused to have negative views about him; that she will believe that he is a sexual predator, which he denies, and that will, essentially, warp the child’s view in respect of all manner of things, particularly about him, a loving father, and this will have long-term consequences for the remainder of her life.  Mr D in his evidence accepted that there was a significant risk of that.

18. The parties were directed to file their affidavit material for the trial.  I should say that it is the mother’s position that she told Mr Alevizos that it was her view that the child had been sexually abused, and that it was Mr Cerwin who had done it, but that was not something Mr Alevizos told me during the hearing of 20 May 2019. 

19. In any event, I must look now at what has happened since that occasion from the mother’s point of view.  She filed her trial affidavit on 5 July 2019.  In terms of her allegation, she says, as follows:

    “I have had X consult with a general practitioner, Dr K at the L Clinic in City B.  Dr K examined X and also had a lengthy discussion with her in my presence.  Dr K indicated that, given the disclosures made by X, she had concerns about the father’s conduct while X was in his care, and she was hopeful that X would not have to endure any further visits with the father.”[8] 

    [8]  Ms Cerwin’s trial affidavit dated 5 July 2019 at [46]

20. Accordingly, it is unclear, particularly what X said, and I will come to what the doctor has reported in due course.  Mr Alevizos arranged for Dr K to write a letter to him, and that was done by Dr K on 24 June following an attendance of X and her mother on 30 April 2019. 

21. In the report, Dr K, and this is to a police officer, reported that during the visits she has had with her father over a number of years, she has had a sore vagina, and, at different times, had noted bruising.

22. Ms Cerwin confirmed that the child had had a sore vagina, and that it had been red and treated with paw paw cream.  Ms Cerwin also reported that the child had been to see the child’s usual medical practitioner, but who had listened to their story, whatever it was – it is not specified, but the child had not been examined. 

23. Other complaints had been made to the Department of Child Services abuse line.  When Dr K saw X, there were no concerns about the child, and she had not, at that stage, seen her father for some months since Christmas.

24. X also complained that she was expected to sleep in the same room with the father, shower in the bathroom and be observed.  X denied that there were any issues regarding contact with her father during the day.  The doctor goes on:

    “She is worried that something has happened to her, but she reports it has only happened to her at night.  She sleeps very soundly when she is at her father’s home.  X told me that she has a Milo at her father’s home, which tastes differently from the Milo she has had at her friends, her grandmother’s or her mother’s home.”[9]

    [9]  See Exhibit A

25. In the report to the police of 30 April, the child has reported that she is worried that something has happened to her; something has happened to her in the context of her sleeping very soundly and her opining that she has been drugged. 

26. As I say, Fogarty J enjoins me to look at what the child has said, to whom and in what context.  What is the child’s complaint?  That something has happened to her.  As I say, I have to be cautious about depriving a child of having a potentially worthwhile relationship with someone who loves her on the basis of something that is uncertain or imprecise. 

27. At this juncture, it is likely to be impossible to prove whether she has been given Milo with a drug in it.  It is Mr Cerwin’s case that he does not keep Milo in his home.  More significantly, and this was some months after the child had spent time that she was examined, there were no physical injuries observed on the child.  Although her hymen was not intact, the doctor opined that it was not abnormal.  It was Dr K’s view that, psychologically, X was frightened and did not wish to stay with her father. 

28. Dr K was clearly placed in a difficult position.  Unlike Mr D, she was not in a situation where she could assess the father, speak with him, or gain evidence from him; and, as I say, it is, essentially, the father’s case that the mother and child are engaged in some sort of process of negative reinforcement, so far as he is concerned.  The child says she does not want to stay with her father, and said she has written spontaneous notes to that effect.

29. That evidence does not fit comfortably with how she appeared with Mr D and the family assessment report process.  In all these circumstances, I have some concerns that, in the lead up to the trial process, there has been an escalation in the polarisation of the parties’ positions in this regard, and I hasten to add that it is still very far from clear if the child has made some concrete disclosure, or has merely ventilated an anxiety that something has happened to her. 

30. From the mother’s perspective, the fact that the child has an inflamed vagina must inexorably mean the child has been sexually abused.  Well, that is essentially a medical question but, necessarily, there may be other logical explanations as to why that has occurred.  In any event, this evidence, as it was, was before me in July. 

31. Following this, the mother, with X, evidently presented at the City B Police Station and made a complaint that the child had been sexually abused by Mr Cerwin.  Mr Cerwin was not in a position to know what he is alleged to have done.  In any event, a police officer came around.  He was requested to attend for an interview and he did so.  He went with his solicitor. 

32. He was cautioned and interviewed and, I have not seen his interview, but it necessarily must be the fact that he denied any wrongdoing.  As he understands it, the allegation was that he had drugged the child with Milo and, on at least five occasions in January 2019, vaginally raped her with his fingers. 

33. Following three days of hearing, during which Ms Cerwin was extensively cross-examined, the proceedings were adjourned part heard.  I was anticipating perhaps that Mr Cerwin’s interview, if it had been transcribed, could be provided to me, and, more significantly, if the child had been interviewed by police, that I could be provided with a copy of that interview. 

34. What I do know was that the police indicated to Mr Cerwin, in an email, that in the light of all the available evidence, the police would not take any further action.  They took the view that there were inconsistencies with the child’s narrative, between the mother, X and doctors, plural, and that there was a lack of forensic medical evidence.  There were no witnesses to any offending and there were concerns with the sustainability and reliability of X’s evidence, for those reasons.  So no prosecution was to be undertaken.

35. I was not provided with any further evidence in respect of the police involvement nor, indeed, whether it was asserted that X had made further disclosures to Dr K, apart from she was worried that something had happened to her. 

36. On that basis, Ms Lindsay, who is counsel for Ms Cerwin, applied to adjourn the proceedings, and I should say that was her position at the outset of the initial proceedings.  From the father’s perspective, he is concerned that the longer the proceedings are delayed, the greater the risk is that he will lose his relationship with his daughter. 

37. As I say, I have to make some sort of assessment of each party’s credibility and, in my view, at this stage, what the mother’s concerns are, what the child has disclosed to her, to Dr K, indeed, to the police, remains nebulous and inchoate. 

38. From the father’s point of view, all he can do is say what he knew of things, and that is, he denies resolutely that he has done anything wrong.  As I say, although he may be a consummate liar, he did not strike me as such. 

39. The mother’s antipathy towards Mr Cerwin was palpable, and from Mr Cerwin’s perspective, which I accept, it is his case that he has struggled to maintain a relationship with X over many years, and I accept his evidence in this regard. 

40. It is also his evidence that he would dearly love to have a relationship with Mr C, but that has not transpired and he fears, essentially, that what has happened with Mr C will inevitably happen with X. 

41. In those circumstances, I must make some sort of assessment of the risk which may flow to X if she spends some time with her father now, and that is the reason that I am sitting late today, because it is the third term school holidays at present.  The first week has finished and the second week will begin shortly. 

42. The Monday of this week is a public holiday in South Australia, so the issue has to be determined this evening and regrettably, notwithstanding arrangements, much time has been lost during today and, indeed, during the hearing generally.  There has been nothing smooth about this process and one thing is clear, the mother resolutely resists the father spending time with X. 

43. I am, of course, sensitive to the mother’s concerns and I acknowledge that she is X’s primary carer and I also envisage that, at least until the Court has concluded the case, X must continue to live predominantly with her mother. 

44. So I must be sensitive to her concerns.  But the difficulty in the case is, if it is left to Ms Cerwin to assess the risk, the reality is that there will be no time between X and her father.  I am of the view that the risk of X losing her relationship with her father is extreme, and I must ensure that the two engage with one another in as natural and as unstilted a fashion as possible. 

45. Having looked at what these issues are and what the risk is, I am not of the view that there is an unacceptable risk occasioned to X that she spend some time with her father, including overnight time, from Monday of this week, until Sunday of next week. 

46. In particular, I think the benefits of X being able to pursue what Mr D regarded as a viable and happy and loving relationship with her father, and the risk of losing that relationship mandate that there be this time.

47. So, for those reasons, I will direct that X spend time with her father from 10.00am on Monday 7 October 2019 until the Q Airline departs from Adelaide to City B on 13 October 2019. 

48. To give effect to this order, the child is to be exchanged between the parties via the maternal grandfather, Mr T, and the child’s aunt, Ms R, at the father’s home at S Street, Suburb T, SA.

49. I have already indicated that that will be subject to an injunction regarding the child’s privacy regarding bathing and showering; I will reiterate the injunction.  The father be restrained and an injunction issued restraining him from imposing upon the child’s bathing or ablution arrangements or entering her bedroom after she has retired for the night without her permission.

50. I will also order that the father arrange for the child to have telephone communication with her mother at 6.00pm on Thursday 10 October and Saturday 12 October at 6.00pm.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 31 August 2020