Cogger & Druce
[2022] FedCFamC1F 405
•3 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Cogger & Druce [2022] FedCFamC1F 405
File number(s): BRC 4873 of 2020 Judgment of: HOGAN J Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – PARENTING – UNACCEPTABLE RISK OF HARM – Where the mother alleges that the child has been sexually abused by the father and paternal uncle separately and/or together – Whether the child would be at an unacceptable risk of sexual abuse if she spent unsupervised time with the father – Whether the child would be at an unacceptable risk of psychological abuse if she spent supervised time with the father – Where the father and the paternal uncle deny all allegations that they sexually abused the child separately and/or together – Where the father contends that the mother has psychologically or emotionally abused the child by exposing her to, and seeking to enjoin her in, her belief that he has sexually abused her – Whether the child will be at an unacceptable risk of harm if she continues to live with her mother – Where the mother is completely fixated on the idea that the child has been sexually abused by her father and paternal uncle – Where the mother’s evidence has to be approached with significant caution – Where the mother has engaged the child in therapy for the purpose of obtaining “disclosures” – Where the mother has always been the primary carer for the child – Where it is unlikely that the child would be able to have an ongoing relationship with her father if she continues to live primarily with her mother. Legislation: Family Law Act 1975 (Cth) Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cox v Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108
Morden & Coad [2019] FamCAFC 233
N and S and the Separate Representative (1996) FLC 92‑655; [1995] FamCA 139
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: Division 1 First Instance Number of paragraphs: 241 Date of hearing: 19, 20, 21, 22 and 23 July 2021; 30 and 31 August 2021 Place: Brisbane Counsel for the Applicant: Mr George Solicitor for the Applicant: Sba (Shila Batenburg & Associates) Lawyers Counsel for the Respondent: Ms Carmody Solicitor for the Respondent: Raise Law on 19, 20, 21 22 and 23 July 2021;
HCM Legal on 30 and 31 August 2021Counsel for the Independent Children's Lawyer: Ms Downes Solicitor for the Independent Children's Lawyer: Aylward Game Solicitors ORDERS
BRC 4873 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COGGER
Applicant
AND: MR DRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
3 June 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The child, X, born 2014, live with the father from the making of these orders.
3.The father have sole parental responsibility for the child in respect of all major long‑term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
4.In the exercise of the father’s sole parental responsibility, he shall:
(a)inform the mother in writing (via email) about decisions to be made, including any views he has and relevant information he has considered, twenty-one (21) days prior to making the decision, save in the case of an emergency and then such notice to be provided as soon as practical; and
(b)seek a response from the mother in writing about the decision to be made; and
(c)the mother shall have seven (7) days to respond to the father’s email correspondence; and
(d)the father shall consider the mother’s response and keep in mind the best interests of the child as his paramount consideration; and
(e)the father shall inform the mother in writing within seven (7) days as to the decision he has made.
5.Within seven (7) days of the date of these orders, the parents will enrol, and thereafter complete an intake (at their respective cost), at a Children’s Contact Centre nominated by the Independent Children’s Lawyer in writing (“the Contact Centre”).
6.The child shall spend no time with the mother for a period of twelve (12) weeks from the date of these orders and shall only communicate with her as allowed by the father.
7.Following the expiration of twelve (12) weeks from the date of these orders, the child shall spend supervised time with the mother at the Contact Centre, with such time to occur, subject to the availability of the Contact Centre, and as arranged between the mother, the father and the Contact Centre:
(a)each fortnight, commencing on the weekend of 24 and 25 September 2022, on either a Saturday or a Sunday (or an alternative day if agreed in writing between the mother and the father) for up to two (2) hours; and
(b)on Christmas Day, Easter Sunday and the child’s birthday, or on a day as close to those days as the Contact Centre can accommodate, for up to four (4) hours;
8.Following the expiration of twelve (12) weeks from the date of these orders, the child shall communicate with the mother by video call (Skype or such other video call service agreed to between the parents) between 6.00 pm – 7.00 pm on the Wednesday immediately prior to the weekend that the child is to spend with the mother, with the father to assist the child to initiate the call.
9.The mother is at liberty to send cards and gifts to the child not more frequently than once per fortnight, with the father:
(a)to be at liberty to read any communication from the mother to the child to ensure that the communication is child-focussed; and
(b)to ensure that any child-focussed communication and/or gifts are provided to the child.
10.In the event that the Contact Centre offers supervised time only at times which are less frequent than specified in Order 7, then time will be spent at the times which are offered by the Contact Centre.
11.The mother shall be responsible for paying the costs of the child spending supervised time with her.
12.From the date of these orders, the mother is restrained and an injunction hereby issues restraining her from attending any school the child attends and from removing the child from school, save that commencing from Term 1 in 2024, the mother may attend:
(a)events at the child’s school to which parents are normally invited to attend; and
(b)parent teacher interviews.
13.Each parent is hereby authorised to obtain from the child’s school/s, at their own cost, all notices, letters, school reports or other communications, information or notices which are usually provided to parents.
14.Each parent shall be at liberty to provide a copy of the Reasons for Judgment and the Family Report of Ms B and the Report of Dr C to any therapist upon whom that parent attends.
15.The father shall ensure the child attends upon Ms D, who shall be appointed as the child’s Counsellor (“the Counsellor”), as and when directed by the Counsellor and to give effect to this Order:
(a)within seven (7) days of the date of these orders, the Independent Children’s Lawyer will provide a covering letter to the Counsellor attaching:
(i)the Family Report of Ms B; and
(ii)the Report of Dr C; and
(iii)the Reasons for Judgment and these orders.
(b)within seven (7) days of the date of these orders, the father will contact the Counsellor to arrange an initial session; and
(c)the father shall follow all reasonable recommendations made by the Counsellor, including making arrangements for the child to attend at programs or upon other treating professionals recommended by the Counsellor; and
(d)the parents are to attend for sessions only as and when directed by the Counsellor; and
(e)the father is to pay the out-of-pocket costs for any sessions the child attends; and
(f)the mother shall pay any out-of-pocket costs payable for appointment fees incurred in relation to any session she attends individually; and
(g)the father shall pay any out-of-pocket costs payable for appointment fees incurred in relation to any session he attends individually.
16.In the event Ms D is unavailable, the Independent Children’s Lawyer shall nominate an alternative therapist to be the child’s counsellor and the terms of Order 15 will apply to the alternative therapist.
17.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.
18.The father shall inform the mother as soon as reasonably practicable of any significant medical condition or significant health issue suffered by the child, including advising of any follow up doctor’s appointments.
19.During the time the child is with either parent, the parents shall:
(a)speak of the other parent and their family respectfully; and
(b)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(c)not denigrate or insult the other parent or their family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the child; and
(d)not use any form of physical discipline on the child; and
(e)not smoke in the presence of the child nor in confined spaces or a vehicle in which the child is located; and
(f)not consume alcohol so as to exceed a BAC of 0.05 unless another adult is able to transport the child if needed.
20.The mother and father shall:
(a)keep the other parent informed at all times of their residential address, landline (if any) and/or mobile phone numbers and email addresses and notify each other within forty-eight (48) hours of any changes to those details; and
(b)not denigrate or insult the other parent on social networking media or sites; and
(c)be respectful and courteous in any communication with each other.
21.Pursuant to s 121 of the Family Law Act 1975 (Cth), the parents and their legal representatives have leave to provide a copy of these orders to:
(a)any school, education institution, or care provider; and
(b)any treating medical practitioner, hospital, or health care professional; and
(c)any government department or instrumentality; and
(d)any member of a police force, State, Territory or Federal.
that may seek or require to hold a copy of these orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).
22.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child X, born 2014, be permitted to have a passport or an Australian travel document (as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
23.Within fourteen (14) days of a written request from the father, the mother do all such acts and sign all such documents as may be required to apply for or renew a passport (or Australian travel document) for the child or any other documents deemed necessary for the purpose of overseas travel.
24.In the event the mother refuses or fails to sign the application for the child’s passport (or Australian travel document) then:
(a)the father shall be entitled to seek the passport (or Australian travel document) to issue without the written consent of the mother and it is requested that an Australian travel document issue for the child notwithstanding the mother’s refusal or failure to provide her written consent; and
(b)any requirement for the signature or consent of the mother be dispensed with and the father is at liberty to do all acts and sign all documents necessary and have such authority as is necessary, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) (as amended) to procure a valid Australian travel document for the child without the signature or consent of the mother, including that the father is authorised to sign all documents on behalf of the mother; and
(c)such refusal will constitute sufficient special circumstances for the father to seek that the Minister administering the Australian Passports Act 2005 (Cth) give consideration to issuing an Australian travel document pursuant to s 11(2)(a) of the Australian Passports Act 2005 (Cth).
25.The costs of the child’s Passport Application or renewal shall be paid by the father and the child’s passport shall be held by the father.
IT IS FURTHER ORDERED THAT:
26.The mother is restrained, and an injunction hereby issues restraining her, from removing the child from the Court Children’s Service.
27.The mother leave the Court precinct immediately upon the rising of the Court.
28.A family consultant shall assist the parties in relation to compliance with and the carrying out of these orders by:
(a)explaining the terms of these orders to the child; and
(b)explaining the Reasons for Judgment, delivered in support of these orders, to the extent that this is possible, and in terms that are appropriate, given the age of the child.
29.The Court Children’s Service, Level 3, Harry Gibbs Commonwealth Law Courts, Brisbane, is authorised to deliver the child, X, born 2014, into the care of her father, Mr Druce.
AND IT IS FURTHER ORDERED THAT:
30.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these orders.
31.The Independent Children’s Lawyer is discharged following the expiration of sixteen (16) weeks from the date of these orders, unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
32.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
33.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS DIRECTED THAT:
34.A Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane provide a copy of paragraphs [118]–[127] and [239]–[242] of the Reasons for Judgment and paragraphs [57]–[59], [61], [63], [66], [76], [78], [81]–[84], [98], [103], [105]–[106], [110]–[111], [113]–[114], [116]–[122], [126]–[129], [132], [135]–[136], [142]–[147], [151], [161], [163], [169]–[170], [180], [280], [286]–[287], [303]–[307], [318], [328], [332], [341]–[342], [353]–[358], [363]–[364], [368], [372], [380]–[382], [397]–[398], [402], [416], [422], [425], [427], [434], [438]–[440], [455]–[456], [461], [465] and [472] of Schedule 2 of the Reasons for Judgment to the Australian Psychological Society, the Office of the Health Ombudsman and the Australian Health Practitioner Regulation Agency for consideration about what, if any, action should be taken in respect of the conduct of Dr E.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cogger & Druce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are now in the best interests of X.
Whilst X’s parents differ in their recounting of these matters, it suffices to say that they met in about 2009/2010, started to live together in mid/late 2010 and married in late 2012.
X was born in 2014. Her parents separated in early/mid 2016 but remained living in the same residence until late 2016/early 2017, when the mother and X moved out of that house. There is no doubt that the mother was X’s primary care-provider during the cohabitation, because the father’s employment took him away from their home, often for weeks at a time. It seems that, between about January 2017 and April 2017, the father’s brother (Mr F) moved to live with the father. During this time, X spent time with her father each Tuesday and Thursday (either for a few hours or overnight) and on each alternate weekend (from Saturday morning until lunchtime on Sunday). Given that Mr F has two daughters (who were, in 2017, aged 10 and 12 years of age) and that they spent time with him whilst he was living with the father, X had the opportunity to spend time with her cousins when they were staying with their father.
When X and her mother moved back into the father’s house in early 2017, Mr F was still living there. The mother and X moved out of the house in mid-2017. Whilst X spent unsupervised time with her father until late August 2017, she then spent only supervised time with him, usually on a fortnightly basis and initially supervised by her mother (until 2018) and then at a contact centre, until the mother stopped this time in about mid-2020. When Ms B (the author of the Family Report) interviewed the parents and X in November 2020, the father had not seen his daughter for six months. This remains the case.
The imposition of supervision over the father’s time with X, and the subsequent cessation of such time, occurred because the mother asserted that the father sexually abused X when she stayed with him on the weekend of 19 and 20 August 2017 (“the August 2017 weekend”). She also asserted that, looking back, she realised that the father and Mr F had previously sexually abused X.
The father denies sexually abusing X or harming her in any way. The mother has also alleged that Mr F has sexually abused X. He denies these allegations and any suggestion that he has ever harmed X. The mother has alleged that the father and his brother have acted together to sexually abuse X. Both deny such allegations.
The mother proposes a continuation of the current parenting regime: that is, that X continue to live with her and spend no time and have no communication with her father. She proposes that she be accorded sole parental responsibility for the major long-term issues relating to X. In advancing her case that the orders she proposes are in X’s best interests, the mother contends that the Court will be persuaded to conclude that the father has previously sexually abused X; that she will be at an unacceptable risk[1] of being sexually abused by him in the future if she was to spend any unsupervised time with him; and that she will be at an unacceptable risk of suffering psychological harm if she was to spend supervised time or have any communication with him in the future.
[1]See: M v M (1988) 166 CLR 69; N and S and the Separate Representative (1996) FLC 92-655; A v A (1998) FLC 92-800; Bant & Clayton (2019) FLC 93-924.
The father proposes that X move to live with him and spend only supervised time with her mother. He proposes that he be accorded sole parental responsibility for the major long-term issues relating to X. In advancing his case that the orders he proposes are in X’s best interests, the father contends that the Court will be persuaded to conclude that the mother has psychologically or emotionally abused X by exposing her to, and seeking to enjoin her in, her belief that he has sexually abused her; that she has otherwise harmed X physically, psychologically and emotionally and that, consequently, X will be at an unacceptable risk of harm if she continues to live with her mother or have unsupervised time or communications with her.
The father’s case is supported by the Independent Children’s Lawyer.
Consideration
In determining those orders which are in X’s best interests, I am required to consider the benefit to her of a meaningful relationship with both of her parents.[2] Given that:
[2] Family Law Act 1975 (Cth) s 60CC(2)(a).
(a)the Family Law Act 1975 (Cth) (“the Act”) does not define the term “meaningful relationship”, nor prescribe criteria on which the Court should rely to assess how X’s parents have, or should have, a meaningful involvement in her life; and
(b)authority prescribes that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach[3] and, consequently, I am required to consider and weigh the evidence and determine how, if it is in X’s best interests, orders can be framed to ensure that she has a meaningful relationship with both parents; and
[3] McCall & Clark (2009) FLC 93-405.
(c)an affirmative finding that there is benefit to X of a meaningful relationship with both parents does not depend simply on there being a lack of danger of physical or psychological harm to her arising from time and/or communication with that parent;[4] and
[4] Vigano & Desmond (2012) FLC 93-509 at 86,517 per Bryant CJ, Strickland & Murphy JJ.
(d)if I determine there is benefit to X of a meaningful relationship with both parents, then I must consider whether that benefit needs to give way to the requirement to protect her from physical or psychological harm,[5]
[5]Vigano & Desmond (2012) FLC 93-509 at 86,517 per Bryant CJ, Strickland & Murphy JJ.
it seems logical – especially given the primary issues in this case – to first determine those matters associated with the assertion that X has been sexually abused by her father[6] before turning to consider the balance of the statutory considerations mandated by s 60CC of the Act.
[6] Family Law Act 1975 (Cth) ss 60CC(2)(b) and (2A).
In approaching the matter in this way, I have not overlooked that authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of those parenting orders which are in X’s best interests.[7] However, because the prescribed statutory framework imposes an imperative of protecting X from harm,[8] and because the resolution of so many of the additional considerations is impacted by the conclusions about the allegations of sexual abuse, I think it convenient to approach the matter as I have.
[7] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[8] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
Given that the mother is the source of so much of the information relied upon by those psychologists who have provided reports and given evidence in her case, it is necessary to consider carefully whether she can be regarded as being a truthful, accurate and reliable witness or as someone whose evidence needs to be assessed very carefully before accepting it as a truthful, accurate and reliable recitation of facts rather than a misrepresentation of what occurred. Even taking into account the various matters and diagnoses outlined in Schedules 1 and 2 of these Reasons, I have concluded that the mother’s evidence has to be approached with significant caution. I am persuaded that she deliberately lied on occasion; at other times she was, I consider, deliberately evasive and obstructive.
The mother’s evidence that she did not live with her brother (Mr G /Mr H) is contradicted by the following:
(a)case notes made by Ms J (from the L Clinic) on 10 May 2017,[9] which include: “External stressors: brother ‘[Mr H]’ just admitted to [N Hospital] psych ward with [a mental illness]; had paranoid delusions about [Ms Cogger] and she had concerns about her safety. Had to move back into marital home due to homelessness, although sep from [Mr Druce]”; and
[9] Exhibit 1 page 51.
(b)the content of notes made by Dr M (from the Suburb K Medical Centre) of a consultation on 14 July 2017[10] include: “marriage broke up… was living with her partner – [Mr Druce]; all lived together; then mum moved into her brother’s house and her brother had a lapse of [a mental illness], then mum took her to another house”; and
[10] Exhibit 1 page 317.
(c)the contents of Ms O’s (from P Psychologists) notes of a consultation/parental intake session with the mother on 23 July 2020[11] which record that: “[Ms Cogger] and [Mr Druce] separated when [X] was 2 yo but remained living in same house for 6mths. [Ms Cogger] moved out and [Mr Druce’s] brother moved in. [X] started having overnight stays with [Mr Druce] – after this, [Ms Cogger] noticed the sexualised behaviours, eg. Asking to be pat on the ‘bum bum’, inserting objects. [Ms Cogger] moved in with her brother but he has [a mental illness] and was unwell – delusion that [Ms Cogger] was trying to poison him, so [Ms Cogger] moved back in with [Mr Druce]”.
[11] Exhibit 1 page 376.
Whilst the mother’s evidence when cross-examined about these entries included that the counsellors must have been confused and mistaken because she told them that she had stayed at her mother’s brother’s house, it seems highly unlikely to me that she would have described such person in those terms rather than simply calling him “my uncle”. I think it much more likely than not that the mother told those who made the entries outlined above exactly what they each recorded and that, in order to eliminate the line of inquiry that her brother Mr G may have been the uncle that X had referred to as having touched her bum, she determined to say that she and X had not shared a residence with him at any time: the issue could easily have been put beyond doubt had the mother called her brother to corroborate her evidence that she and X never lived with him or by calling her uncle to say that they had.
Further, when cross-examined, the mother said that she did not know if her brother had a specific mental illness and that she understood him to have mental health problems: she said she had most likely told Ms O that he had “symptoms of [a mental illness]” (as this was her observation and he had had some symptoms that seemed consistent with a mental illness and she had been suspicious at the time that he may have had it). However, it is, I consider, clear from the notes made by Dr M and Ms J (referred to above) that on each occasion the mother told each of them that her brother suffered from a mental illness. The relevance of this is not whether X’s uncle has a mental illness – rather, it provides a clear example of the difficulties associated with simply accepting the mother’s assertions and highlights the need to consider her evidence very carefully. Further examples of the mother’s lack of veracity are recounted throughout these Reasons, including in Schedule 2.
I think there is significant force in the submission made by Counsel for the Independent Children’s Lawyer about the incongruity between the mother’s accounts (as summarised in various entries in the Schedules which form part of these Reasons) of the abuses which she said she was subjected to by her parents when she was a child, including those perpetrated by her mother (whom she has alleged sold her to strangers for sex when she was a child) and her evidence at trial, which included that X had a loving relationship with her mother’s immediate and extended family, particularly with the maternal grandmother and maternal aunt with whom she was said to be extremely comfortable. It is, indeed, difficult to reconcile how the mother could allow her daughter to have a loving relationship with the person whom she has elsewhere asserted treated her so heinously.
I accept the submission to the effect that, when regard is had to the mother’s various diaries that are in evidence, there are significant inconsistencies in the contents of the same. For example, entries for 20 August 2017 differ as follows:
20 August 2017[12] 20 August 2017[13] [X] spent w/e with [Mr Druce] – he sent photo of [X] on a swing that weekend and I remember thinking that it looked like a picture from an ad for abused children as [X] was looking down and not into the camera. I thought nothing of it [X] spent w/e with [Mr Druce] – he sent photo of [X] on a swing that weekend and I remember thinking that it looked like a picture of a sad child as [X] was looking down and not into the camera. I thought nothing of it [12] Exhibit 1.
[13] Exhibit 1.
Further, reference to the photo the father had actually sent the mother of X on the swing on this occasion (captioned “cutie pie”)[14] seemed to me to show her looking up at the person taking the photo with a smile on her face.
[14] Exhibit 12.
Similarly, there appeared discrepancies in the mother’s recounting about what happened to the testing of X’s underclothing in that it seemed that one person was told that the underpants were lost, others were told they were unable to be tested and yet others were told the testing had not revealed the presence of semen.
I also accept that there is a significant difference in the mother’s accounts of what occurred after she collected X from spending time with her father on 13 August 2017. According to the contents of texts sent on that occasion,[15] X had been upset on leaving her father and the mother asserted that she and the father were missing each other at the same time; however, according to her affidavit, whilst X started to cry and said “daddy” repeatedly and became so distressed that she had to stop the car, she denied missing her father and when asked if she wanted to go back to see him said “No” again. In a similar vein, I accept that there is a significant discrepancy in evidence about X’s reaction when she first saw her father after the August 2017 weekend: the mother’s affidavit asserts that, when X first saw her father after this weekend she was distressed and flailed her arms around; however, it was clearly established by the content of text messages that, in fact, X had spent what was a normal Tuesday night overnight with her father after the August 2017 weekend.
[15] Exhibit 12.
As noted elsewhere in these reasons, I accept that the mother did not tell Dr Q, Dr E or Dr R that X spent overnight with her father on 22 August 2017 – that is only two days after the mother said she observed the discharge from the child’s anus.
I accept that, in her email correspondence dated 26 July 2020 to X’s school the mother asserted that X had been sexually assaulted by her father and uncle and that her use of the term “monsters” had never existed before a significant event of sexual abuse happened in August 2017 – “of which there is physical evidence”. The assertion of the existence of physical evidence is, in my view, false. In fact, as noted at paragraph [89] and in the summary contained within Schedule 2, the Department concluded in August 2017 that there was no physical evidence that X had been sexually abused, noting “there was no evidence of bruising or trauma.”
Having regard to the discrepancies in the mother’s evidence, including as highlighted elsewhere in these Reasons, I think it highly likely that the mother’s recounting of whatever behaviours X has exhibited at various times has, on occasions, been at best an exaggeration and, at worst, an invention. By way of clear example, her recounting that in playing with toothbrushes X had been showing them to be having “threesomes” is a clear demonstration of the prism through which she has viewed X’s behaviours since no later than August 2017 – similarly, it appears she sought to rely on X’s reported reaction to seeing a complete stranger (male) across the road as being indicative, somehow, of X regarding men in a certain light. Further, the mother’s comment to Dr E that she was minded simply to make an allegation up in order to see how the father and his solicitor would deal with the same causes me very significant concern about her veracity and to reflect very carefully about the prospect that she may previously have actually taken this course.
There is, I think, significant force in the submission by Counsel for the Independent Children’s Lawyer that the evidence establishes that the mother has been willing, in this case, to lie, exaggerate or misrepresent the truth in order to achieve her aim of getting X to disclose the abuse she has no doubt occurred and, consequently, remove the father from the child’s life.
Where the evidence given by the mother, the father and X’s uncle differ, I prefer the evidence given by the father and X’s uncle.
The allegations of sexual abuse
The events of the weekend of the August 2017 weekend were, at least in one sense, those on which the mother primarily relied for her assertion that the father had sexually abused X. However, her evidence included that a number of matters had occurred before that weekend which, particularly after that weekend, have persuaded her that the father (and his brother) have sexually abused X.
X spends overnight time with her father on 22 August 2017
I accept that, at 9.28 am on 22 August 2017, the mother texted the father to ask him what time she could bring X over to him that afternoon. I accept that, after he replied to tell her 3.00 pm, the mother agreed and then asked him “[t]hen what time tomorrow morning” – to which he replied 6.00 am, which was agreed.[16]
[16] Exhibit 12.
There is no mention in the mother’s affidavits about this text conversation. I accept that the mother did not tell any of the therapists upon whom she has subsequently attended (other than, perhaps, Dr E) that she communicated with the father in this manner on the day after she noticed discharge in X’s underwear which she said caused her to think that the child had been sexually abused whilst in her father’s care.
I accept that, as agreed between the parents, the mother dropped X off to her father’s home on the afternoon of 22 August 2017 and that she spent overnight with him. I accept that, between 4.30 pm and 8.16 pm on 22 August 2017:
(a)the parents exchanged texts about X; and
(b)the father sent the mother photos of X in his care; and
(c)after her mother asked him how X was, he replied to say that she was “awesome” and “having some crackers”.[17]
[17] Exhibit 12.
Again, there is no mention in the mother’s affidavits about this text conversation or the fact that X spent the night of 22 August 2017 in her father’s care. I accept the mother did not tell any of the therapists upon whom she has subsequently attended (other than, perhaps, Dr E) that X spent overnight in her father’s care on the night of 22 August 2017. I accept that, despite knowing this had happened, the mother allowed the various reports prepared by various psychologists on whom she has attended to positively assert that she had not allowed X to spend any unsupervised time with her father after she returned to her care on 20 August 2017. Given that she is the source of the information recounted in these reports, it is clear that the mother led the authors of the same to think that she had not allowed X to spend unsupervised time with her father after returning to her care on 20 August 2017. Her actions in doing so, during her engagement with each of the therapists from whom she has obtained the reports used in this proceeding (other than Dr E who said she knew that the mother had allowed X to spend unsupervised time with the father after the August 2017 weekend) can only be regarded as deliberately misleading and manipulative. I also think it likely that the mother failed to correct what she knew was an incorrect assertion in the reports she relied on in her case because of the impact that might have had on her case.
What happened in the lead up to the August 2017 weekend?
For example, the mother said that, in December 2016, she saw the father in the spa with X and they were playing the “bum poking game”;[18] she also said that, in about early 2017 (after she had spent overnight with her father) X said to her – for no apparent reason – “now it’s your turn to please me”, while pointing to her bottom.[19] Given my conclusion about the mother’s veracity and reliability generally and in recounting comments she asserts X has made to her in particular, I am not necessarily persuaded that X spoke to her mother in this way; even if I am wrong in this conclusion, I do not consider X’s comment to indicate that her father and/or her uncle had sexually abused her. Further, having regard to the father’s evidence about the asserted “bum poking game” – which I accept – I am not persuaded that the father sexually abused X when she was in the spa with him sometime in December 2016.
[18] Affidavit of the mother filed 29 June 2021, paragraph 85(c).
[19] Affidavit of the mother filed 29 June 2021, paragraph 85(g).
It is, I think, necessary to have regard to some aspects of the evidence about the mother’s personal history in order to appreciate the factors which were likely influencing her in her approach to X’s behaviour. This evidence, relating to matters which had happened before the end of 2016/early 2017, is summarised in Schedule 1.
Noting that the mother’s evidence was that she and X moved out of the former matrimonial home in January 2017, I accept that the mother had an intake session with Ms J (from “the L Clinic”) on 8 February 2017. According to the notes, this was for anger management and parenting a two year old child in the context of childhood trauma (physical and sexual abuse) and kidnapping/sexual assault as a teenage school leaver. According to the L Clinic documents, the mother was assessed (as a result of her answers to various tests) as experiencing severe depression, extremely severe anxiety and extremely severe stress.
The notes of the L Clinic intake session relevantly detail that the mother advised that: she was recently separated from the father; she is a trauma survivor who had previously been diagnosed with PTSD and depression; she had had a severe childhood history of domestic violence, trauma and neglect[20] by her parents (which included physical and sexual abuse from an early age); her brother (Mr G) had recently revealed he was also sexually assaulted by their father and had been venting anger toward her as he had been unable to do so toward their parents. She said, in essence, that, whilst she had previously seen a female psychotherapist for three years and then a male psychiatrist for six years, she did not feel that she was making much progress.
[20]The mother reported having been provided with inadequate food, having been made to stay outside all day and not knowing it was normal to have three meals a day until she was an adult.
I accept that the L Clinic documents record the mother’s symptoms as including anger, dissociation and lack of healthy boundaries. She felt she was, in essence, a care-taker of others and reported having experienced “telepathy” with her sister Ms S (but “it takes a lot of energy so we don’t do it”) and said she believed in “parallel universes”. I accept the mother told Ms J that she had read a lot about trauma and the brain and felt that anger was compressing other emotions; I accept they talked about “anger monsters”. I also accept that the mother reported having fears about brain damage, due to her many episodes of head injuries.
I accept that the mother had her first session with Ms T (from the U Centre (“U Centre”)) on 8 May 2017 and that, during this session, she reported having been sexually abused as a teenager, child sexual abuse by her biological father and that her brother had had recent mental health issues. According to the notes, the mother was very protective of X, especially around other men and, in particular, the father’s brother. This last reference is, clearly, a reference to Mr F.
I accept that, when the mother attended on Ms J on 10 May 2017, for support for post-traumatic stress and parenting, she also took X “for assessment”. According to the notes of that consultation,[21] the mother was worried about X’s development, felt she had no bench marks to know what was “normal”, tended to be hypervigilant (which impacted on her parenting) and was concerned about keeping X safe. She also said that X was “going through anal stage”.
[21] Exhibit 1 pages 51–52.
I accept that the mother also told Ms J, amongst other things, that her brother Mr H[22] had just been admitted with a mental illness to the psychiatric ward of the N Hospital; that he had had paranoid delusions about her and she had concerns about her safety – which resulted in her moving back into the former matrimonial home due to homelessness. I accept that the mother told Ms J her room at the house had been taken over by the father’s brother (clearly, Mr F) and that her relationship with her mother and sister at the time was difficult. I accept the mother said that she had thought about her anger and realised that it was protective and telling her to take care of herself. The notes of the consultation included that X demonstrated good communication skills and good attachment and was upset to leave. Her behaviour did not cause Ms J any concerns.
[22] As noted earlier, also known as Mr G.
Whilst the mother appeared to accept during her cross-examination that Ms J had told her at the end of this session that she had no concerns about X at that time, she also said that she did not feel that Ms J had undertaken an actual assessment of X’s “trauma”. This later evidence seems significantly at odds with her contemporaneous view of Ms Js’ involvement given that the text she sent the father on 10 May 2017[23] said:
[23] Exhibit 9.
Took [X] to therapist and she said she is all good no problems. Bum poking is with normal range of curiosity at her age.
I accept that, after the father sent the mother a text on 20 May 2017 to tell her he had sent her $100.00 and to make sure she spent it on herself, she replied by text to tell him this was really kind and thoughtful and that she appreciated it.[24] I accept that the mother texted the father on 22 May 2017 to tell him that X wanted him to pick her up that afternoon.[25]
[24] Exhibit 10.
[25] Exhibit 10.
I accept that, on 9 June 2017, the mother sent the father a message in which she said, in essence, that: if she could not obtain accommodation close by, she would quit her course and move far, far away with X to somewhere affordable (“so make a fair decision” – a reference to the property settlement aspect of their separation); if he did not work with her, then she would have the house sold without his consent to obtain the maximum of what she alleged he owed her; that he should remember what it was like to miss X when he worked away, because it would be like that permanently; and that she was looking to stay in the area so he could see X and so that X could have a continued close relationship with her father.[26]
[26] Exhibit 13.
I accept that, when the mother attended at U Centre on 12 June 2017, she reported being under stress: she said she was living with the father (her ex-partner) who was pressing her for sex. I accept she also spoke about her brother’s release from hospital, his mental health, her relationship with him and her concerns for X’s safety. I accept she said she needed to put X’s safety and wellbeing first and that she would like to maintain a healthy relationship with the father. [27]
[27] Exhibit 7.
I accept that, according to the notes of the attendance,[28] when the mother was seen at the V Hospital Emergency Department on 1 July 2017, she reported being homeless for the last three months, having a lot of stress in her life and that she had recently been advised that she had a government house she could move into next week. According to the notes, she also said, amongst other things, that she had a three year old daughter who lived with her father.
[28] Exhibit 1 page 888.
I accept that, when the mother attended at U Centre on 10 July 2017, she reported increasing tension with the father and him disrespecting her possessions.[29]
[29] Exhibit 7.
I accept that, according to the notes of the mother’s attendance with X on Dr M at the Suburb K Medical Centre on 14 July 2017,[30] the mother told the doctor that:
[30] Exhibit 1 page 317.
(a)she had moved with X into her brother’s house and then he had a relapse of his mental illness, so they moved to another house; and
(b)X was seeing her father twice a week and spoke with him daily via Skype; and
(c)she had noticed that X was holding onto her “poo” and did not like going to the toilet (although she was already toilet trained and had not been having any accidents); and
(d)X was sleeping well and attended day-care where she played with other children.
The mother denied that she and X had ever lived with her brother Mr G (or Mr H). However, given the various references in notes taken by persons to whom she spoke about him (as recounted in these Reasons), I consider it much more likely than not that this aspect of her evidence is false.
I accept that the consultation notes included “could be ?? separation anxiety” and that X needed counselling (so she was referred to W Service – albeit that she had only just turned three years of age). I accept that Dr M had had a long discussion with the mother about regular constipation and the need for high fibre and daily training.
I accept that the Mental Health Care Plan completed by Dr M for X on 14 July 2017 included the information that she lived with her mother and saw her father; that there was a family history of mental disorders (the mother’s brother) and that separation anxiety was queried.[31]
[31] Exhibit 1 pages 285–288.
I accept that the notes of the mother’s attendance at U Centre on 17 July 2017[32] recorded that she was hypervigilant about X and the behaviours of her uncle (clearly, Mr F). The notes include that she mentioned X saying “how can I please you now” and that she had “explored” this with her, but could not determine where she had learned it. The mother recounted that she had told the father, who was said to have said that he thought it sounded strange.
[32] Exhibit 7.
I accept that, when the mother attended at U Centre on 24 July 2017,[33] she expressed concerns about her brother Mr H setting himself to move into her new house with X. I accept she said she loved him, but needed to provide safety for X.
[33] Exhibit 7.
The mother’s evidence included that, in early August 2017, X said to her (without context) “It’s your fault”; she said that, after she collected X from spending time with her father the following week, X began crying and stated “daddy” repeatedly – but did not want to return to her father. That the mother’s evidence included that X did not “disclose” anything further to her[34] demonstrates the way in which she has approached what seem to me to be inconclusive comments from her then three year old daughter.
[34] Affidavit of the mother filed 1 May 2020, paragraphs 46–47.
Whilst the mother’s evidence included assertions that, after she and X moved out of the former matrimonial home in 2017 she noticed X to start to display “sexualised” behaviours and that she started to wonder whether the father could be responsible in some way for the same, the following examples make it clear that her contemporaneous attitude to the father was not as she has later asserted it to have been:
(a)on 13 August 2017 – the mother texted the father a photo of X and told him that she was crying when they left, was really sad and that he and X were missing each other at the same time;[35] and
[35] Exhibit 12.
(b)on 15 August 2017 – a series of texts passed between the parents in which the mother told the father that she felt scared at her home, he invited her to sleep at his place if she did not feel safe and she took him up on that offer;[36] and
[36] Exhibit 12.
(c)on 17 August 2017 – the father texted the mother to ask her if she had received the money he had sent her and she replied to thank him for it and told him that she really appreciated it and it helped.[37]
[37] Exhibit 12.
None of these communications seem to me to be consistent with the suggestion that the mother had started to think that the father was abusing X in some way or that she was fearful of him or that theirs had been a relationship in which she had been subjected to domestic violence.
What happened on 19 and 20 August 2017?
I accept that X spent overnight time with her father on 19 August 2017. The mother’s evidence included that, when she collected X from the father on 20 August 2017, he told her that X had diarrhoea. She said X appeared fine but was visibly exhausted and went to bed as soon as they got home.[38]
[38] Affidavit of the mother filed 29 June 2021, paragraph 91.
The mother’s evidence also included the assertion that, on 20 August 2017, X started to put toilet paper in front of her vagina while she urinated and said that she did this so no one could see[39] – which reported behaviour the mother clearly sought, in her case, to advance as further indicia of the allegedly abusive conduct by the father or X’s uncle toward her. However, again, the mother’s contemporaneous communications with the father do not suggest that, at that time, she had formed any view that he had sexually abused X – after all, she sent him a text that day asking him if he had any money because X’s swimming had taken the rest of her money. I accept the father sent her $100.00 (and suggested that she spend the money on herself by getting her hair, nails or waxing done) and that he agreed to help her by connecting her stove.[40]
[39] Affidavit of the mother filed 1 May 2020, paragraph 57.
[40] Exhibit 10.
The mother’s evidence was that, after X awoke very early on 21 August 2017 and was “unusually extremely clingy”, she took her to the park at the beach. Whilst there, X coughed and immediately said “oh excuse me mummy” while she held her bottom; the mother said she looked in her underpants and saw there was an “extremely unusual clear liquid” on them; she said she first thought it was urine but, once home, noticed it was at the back of X’s underpants. She took a photo of the underpants. She said X’s vagina and anus region were quite red. She contacted the Suburb K Medical Centre and booked the next appointment – which she was told was on 23 August 2017.
Parental communications on 21 August 2017
I accept that, after the father texted the mother at 12.28 pm on 21 August 2017 to ask her what was happening about X’s dental visit, she replied at 1.24 pm to say the appointment was at 3.00 pm and that X had said that she wanted him to come. I accept the mother asked him what time he finished work. I accept that, after the father replied at 1.25 pm to say that he would be at her place at 2.45 pm if that worked, the mother replied at 1.26 pm to say “that wld be awesome thank u”.[41]
[41] Exhibit 12.
There is no mention of this text conversation in the mother’s affidavits. I accept that she did not tell any of the therapists upon whom she has subsequently attended (other than, perhaps, Dr E) that she communicated with the father in this manner on the very day she said she noticed discharge in X’s underwear.
X attends the Suburb K Medical Centre: 23 August 2017
I accept that, when the mother took X to the Suburb K Medical Centre on 23 August 2017, she was first seen by Dr Y. I accept that the mother took X’s underpants to the consultation. The mother’s evidence included, in essence, that, whilst Dr Y and another doctor he had asked to assist him “attempted to examine” X, she was extremely agitated and upset. Having regard to Dr Y’s notes and his evidence during the trial (which I accept and prefer wherever the same is in conflict with evidence given by the mother), I reject the mother’s evidence that the doctor’s involvement was restricted to an “attempted examination”. I consider this evidence to be the mother’s attempt to explain away the findings Dr Y recorded in his notes because they do not support her contention that the father sexually abused X on the August 2017 weekend.
The mother said Dr Y took a sample of the discharge to send away for testing at a pathology lab and, when he told her that X may have been sexually abused, she told him that X had been in her father’s care over the weekend.[42] She said the doctor called her later that day to say that semen testing could only be conducted via police investigation and that he had contacted the Department of Child Safety (“the Department”).
[42] Affidavit of the mother filed 29 June 2021, paragraphs 97 and 98.
According to Dr Y’s notes of the consultation on 23 August 2017 (which I accept as accurately recording the information provided by the mother):[43]
[43] Exhibit 1 pages 310, 318–319.
(a)the mother requested stool microscopy and swab microscopy: ? Contaminated semen cells in faeces (scrapings from soiled underwear); and
(b)the reason for the visit was bowel habit changes; alleged (?) sexual abuse; and
(c)the background provided was that:
X joint custody with father and mother
[Ms Cogger] states history of sexual abuse between her and ex-husband
Has trust issues with ex-husband as a result
She states [X] does have a good bond with father
(As per the original)
(d)the history provided was that:
[Ms Cogger] states [X] had 3x episodes of loose stools on Sunday 20/8 (twice when she was staying at father’s house, and once more Sunday evening when home with [Ms Cogger])
describes Type 6/7 Bristol stools mixed in with “clear mucous”
nil blood
[Ms Cogger] states she was concerned about mucous and “whether it could be sperm”
[Ms Cogger] states with previous abusive sexual relationship with ex-husband she gets paranoid about [X] being with him although she states they have a good relationship she is always worried
[Ms Cogger] states has concerns with ex-husbands brother who also lives with him
– she states ex-husbands brother has close relationship with [X] “he comes home and kisses her and she jumps into his bed and says play with my bottom”
Has disclosed/discussed above sexual abuse issus and concerns psychologist [Ms T] @ [U Centre V Region]
Offering escalating to Department of Child Services if she is concerned
[Ms Cogger] states “not sure” does not want to make a claim currently, “I feel like I am being too hyper-vigilant”
strongly advised any suspicion of child abuse needs to make a notificatoin
[Ms Cogger] states “does not trust dad however they have good bond and it may be my imagination running away” “I don't want a breakdown in that relationship”
(As per the original)
(e)when the doctor discussed indicators of sexual abuse (such as hypersexual behaviour etc) with the mother and gave her a brochure with indicators of what to look for, the mother said that X had had episodes of “sticking a paintbrush up her bum” and “making toothbrushes kiss” – “nil other incidences that she can think of”; and
(f)the mother brought in underwear with dried faeces from Sunday and enquired whether “it can be tested for sperm”.
I accept Dr Y’s evidence to the effect that he would not have written what he did in his notes if the mother had not told him that. Where Dr Y’s evidence and the mother’s conflict, I prefer the evidence given by Dr Y given those occasions, discussed in these Reasons, where it has clearly been established that the mother has been untruthful.
I accept that, when Dr Y and Dr Z (a colleague with whom he had consulted about the appropriate course to take) examined X’s genitals, their examination resulted in them noting that: her anus was intact, with “nil fissures or cracking”; there was no redness to her vagina; there was nothing abnormal about her frenulum and labia.
I accept that, when Dr Y discussed counselling services and methods of notification with the mother again, she said she would think about it and would decide after the results of the tests returned.
I accept that Dr Y recorded his impression as “[a]ltered bowel habits”. This assessment needs to be seen in the context of an earlier attendance by X at the Suburb K Medical Centre on 20 April 2017.[44] According to the notes of that consultation, her bowels had not opened since the week before, there had been “some ? spurious soft stools” and she had recently been treated for worms (as had the whole family). The notes also record that, whilst X was not in pain, she screamed because she apparently disliked doctors’ offices. I accept the note that the doctor discussed constipation management with the mother, offered to x-ray X (an offer the mother declined), recommended pear juice and Movicol until she was having soft daily stools and noted that this treatment may need to continue to prevent constipation from becoming a long-term issue.
[44] Exhibit 1 page 317.
I accept that, at 4.49 pm on 23 August 2017, the mother texted the father to ask him what X ate for dinner “last night and the weekend” and that she told him that she (X) was “still having a bit of runny poo”.[45]
[45] Exhibit 12.
As is the case with other evidence which is contrary to her case that the father sexually abused X on the August 2017 weekend and that she thought that this was the case, I accept that there is no mention in the mother’s affidavits about this text communication. Further, as none of the notes of sessions recounted in Schedule 2 or the reports by the various therapists relied on by the mother as part of her case that X was sexually abused by her father (and uncle) and, therefore should not have any contact or communication with him, mention anything about X’s history of bowel issues as a potential cause for what the mother reported seeing on 20 August 2017, I am confident that she simply did not inform them of this relevant information.
24 August 2017 – appointments, information about the testing and X spends her last unsupervised time with her father
I accept that, during a consultation with Ms T at U Centre on 24 August 2017,[46] the mother spoke about her concerns for X – she said she had taken her to the doctor after her visit to her father’s house and that the doctor had notified the Department.
[46] Exhibit 7.
I accept that, as recorded in the notes, the mother said she had previously worried about X’s uncle (clearly, Mr F) and some behaviours, but acknowledged she was hypervigilant about protecting X. I accept the mother said X had come home “with a liquid mucus fluid coming from her anus and [the mother] recalls that this was previously associated with a bowel condition and lactose intolerance. The father mentioned he had fed [X] camembert” (emphasis added).
There is nothing in the reports prepared by any of the therapists upon whom the mother attended and whom have seen X at her instigation to suggest that she ever made any of them aware of the extremely plausible explanation for her observations on 20 August 2017: namely, that X had had a reaction to the camembert cheese her father had given her.
I accept that, after the Suburb K Medical Centre was advised by the AA Clinic that it was unable to test the sample taken from X’s underpants due to lack of sample and the age of the same and that the matter should be discussed with the Department, Dr Y contacted the mother.[47] I accept that, when Dr Y told the mother about the information provided by the AA Clinic, she said that she did not know what to do, was “paranoid and hyper-vigilant” and wanted to have the sample tested for “her own peace of mind”. I accept she said that she did not have any clear evidence or big suspicion of abuse but, due to her own history of sexual abuse and not knowing what the unusual stool sample was, she wanted to get it tested. I accept that Dr Y advised her that any suspicion of abuse needed to be flagged with “Child Services”. I accept that, from Dr Y’s perspective, the mother was understandably anxious about contacting the Department (because she had told him she did not want them to take X away and had bad connotations about the Department being involved); I accept that, after what he described as a “lengthy discussion” with the mother, she was willing (but anxious) to discuss the matter with the Department and consented to him contacting the same.
[47] Exhibit 1 page 319.
I accept that, when Dr Y contacted the Department, the information he provided included that:
(a)the father had X in his care on Tuesday and Thursday nights and for one night every second weekend; and
(b)the mother had been sexually abused by the father in the past and he believed this was the reason for the parental separation; and
(c)the mother had said that she was paranoid and hypervigilant; and
(d)he was aware X recently had unusual bowel movements; and
(e)the mother had noticed mucus in X’s faeces and was worried it was semen – she had kept the child’s underwear, taken her to the doctor and wanted the underwear tested for her own peace of mind; and
(f)he had physically examined X and saw no evidence of bruising or trauma and she did not make any disclosures to him; and
(g)the mother had said that there was no history of sexual abuse toward X – although she also said X had displayed behaviours like sticking a paintbrush in her bottom and pretending that two toothbrushes were kissing.[48]
[48] Exhibit 1 page 1312.
Although it is somewhat unclear as to when the Department arrived at this conclusion, I accept that the Department’s assessment of the information provided on 23 August 2017 included that, whilst X’s reported behaviours were worrying and concerning, there was no information to suggest they fell within the “Red” and “Concerning” category in the “Sexual Behaviour Guide – Birth to Eighteen” and therefore, there was “no evidence to suggest that she had been sexually abused”.[49]
[49] Exhibit 1 pages 1312–1313.
I accept that, when Dr Y contacted the mother (after he had spoken to the Department), he told her that he had been advised by a Departmental intake officer that the Department would do an assessment and follow-up as needed; I also accept the mother told Dr Y that she had spoken with Ms T (from U Centre), who had allayed some of her concerns.[50]
[50] Exhibit 1 page 319.
I accept that the mother texted the father to ask him when he was coming over that day and, when he advised her, she replied by saying “Fine” (using the balloon emoji in her response).[51] I accept the mother subsequently left X in her father’s care for one hour while she ran some errands. On her evidence, she did so despite X “screaming and flailing her arms and legs around in an attempt to avoid” her father.[52] The mother also said, in a later affidavit, that she had been “reluctant” to leave X with her father that day[53] and that the child had seemed “quiet and withdrawn” when she collected her from her father’s care that day.[54] I reject her evidence that she had been reluctant to leave X with her father that day and consider that she did so because it suited her.
[51] Exhibit 12.
[52] Affidavit of the mother filed 1 May 2020, paragraph 54.
[53] Affidavit of the mother filed 29 June 2021, paragraph 101.
[54] Affidavit of the mother filed 29 June 2021, paragraph 102.
This was the last occasion on which X and her father spent unsupervised time together.
As was the case with the earlier occasions after the August 2017 weekend when the mother left X unsupervised in the care of her father, I am satisfied that the mother did not tell any of the therapists from whom she obtained reports used in these proceedings (other than Dr E) that she allowed X to spend time with her father on this occasion; she certainly did not tell them that leaving X with him unsupervised was something that she arranged for her benefit.
25 August 2017: the toothbrush “threesome”
I accept that the mother texted the father at 11.30 am to tell him when she and X would be home; I accept a later text message included the direction that “front doors are open x” and that she later she asked him to leave X’s theme park pass somewhere in house so she could use it.[55] There is no mention of this communication in her affidavits.
[55] Exhibit 12.
The mother’s evidence included that X told her “I was holding [BB’s] dick” (BB is the female dog) and, when she asked her if she meant to say “stick”, the child said “No, I meant dick”. The mother said this made her uneasy and concerned because this was a word she had never used around X, she had not heard her say it before and X had not been to day-care in the three previous weeks.[56] The mother said that, when she called the father and asked him if X could have accidently heard the word “dick” in his care, he told her that there was no way that had happened and assured her that X had not been left alone with her uncle Mr F or anyone else recently.[57]
[56]Affidavit of the mother filed 1 May 2020, paragraph 55; affidavit of the mother filed 29 June 2021, paragraph 103.
[57] Affidavit of the mother filed 29 June 2021, paragraph 105.
The mother’s evidence was to the effect that, when she contacted the Department to express her concerns, she was told that the Department would not intervene because X had one protective parent (her) and that she should only facilitate supervised time between the father and X in the future – this was why, she said, the last time she had allowed X to spend unsupervised time with her father was on 24 August 2017.[58] She said she contacted the father and told him what she said the Department had told her and that, on their advice, his time with X would be supervised. She also said that she told him that he could have as much supervised time with X as possible because, despite her concerns, she wanted to ensure that X continued to have a relationship with him.[59]
[58] Affidavit of the mother filed 29 June 2021, paragraphs 106–107.
[59] Affidavit of the mother filed 29 June 2021, paragraph 108.
Given what is set out in paragraph [87], I reject the mother’s evidence that the Department told her that she should only facilitate supervised time between X and her father – this is, simply, untrue. I accept that the true position was as the Department recorded – namely, the mother had decided that she was not going to allow the father to spend unsupervised time with X and that she would supervise their future time together. Any contention that, in imposing supervision over X’s time with her father at this stage, the mother was only doing what the Department had told her to do, rests upon a false premise and is rejected. Further, her subsequent assertions that the Department had told her that she was only to allow X to see the father under supervision or they would begin an investigation and put X into care are simply false.
I accept that, at some time on 25 August 2017, the mother wrote in her diary that X had been enacting a “threesome” with toothbrushes – where one toothbrush was “kissed by others”.[60] That the mother used the word “threesome” to describe X rubbing or pushing two toothbrushes together so that they “kiss” provides a very clear insight, in my view, into the way she views the world – her overlaying of sexual connotation onto what can only realistically be nothing more than innocent play by a child of a little over three years of age suggests to me that it is much more likely than not that other innocent behaviours by X have been seen through this distorted lens and subsequently reported to others. Here, X’s behaviours were not “sexualised” – her mother’s interpretation of them was. I suspect that this has been the case in respect of the other “sexualised” behaviours the mother has asserted X to have displayed.
[60] Exhibit 1 page 232.
I accept that, during a consultation with Ms T at U Centre on 28 August 2017,[61] the mother advised that she was concerned for X; she said X had mentioned in passing that she was playing with BB’s dick (female dog); she said that, when she asked her how that worked, X had cupped her hands and moved them up and down. Given the mother’s interpretation of the “toothbrushes” referred to above, it is highly likely that this action (assuming it occurred – about which there remains significant doubt given my findings about the mother’s lack of veracity expressed throughout these Reasons, including in Schedule 2) was accorded some sort of sexual connotation by the mother.
[61] Exhibit 7.
According to the notes of the consultation, the mother said that she had suspicions about X’s uncle (clearly, Mr F). I accept she also said that she would insist on the father having supervised contact with X, because she did not feel that he could keep her safe in his home. There is no suggestion that she said that the Department had told her that she was to impose supervision over X’s time with her father.
I accept that the mother contacted the Department on 28 August 2017.[62] According to the notes of that contact, she reported that: X returned from her father’s care on Sunday night with clear discharge from her anus (which is clearly at odds with her evidence about X having discharge the morning after she returned from her father’s care); she had taken her to the doctor on Wednesday morning; the doctor’s physical examination did not reveal anything suspicious or out of order; she was “really hyper-vigilant” about things and believed that X’s uncle was a “groomer” (which I have taken to be a reference to an adult who, by their actions toward a child, normalises sexual behaviours so that the recipient child is “groomed” and does not appreciate that they have been the recipient of, or engaged in, sexual behaviours) and was always giving her big kisses; X had been “ultra-clingy” since returning from her father’s care (would not let the mother out of her sight), had been doing “weird kissing things with her toothbrushes”, was scared of male adults and was saying things about holding BB’s dick.
[62] Exhibit 1 page 1312.
Having regard to the evidence given by both the father and Mr F about Mr F’s interactions with X (which I accept and prefer where the same conflicts with the evidence given by the mother about this issue), I am not remotely persuaded, on the evidence before me, that X’s uncle is a “groomer” or that he has “groomed” her or that he has tried to “groom” her or that, in showing affection to her, he has acted in any way that was abusive or inappropriate.
The Departmental notes also record that the mother advised that: she had decided to withhold X from spending unsupervised time with her father and would supervise time in the future; she did not know what caused the discharge (although X had had bowel issues in the past); and she had told the father about the discharge the previous week and he had not said anything to explain it. Given the mother’s report to Ms T at U Centre on 24 August 2017 (as noted at [69] above), the latter assertion is false: her report was that the father had told her that he had given X some camembert, in the context where she knew that their child had previously had liquid mucus fluid coming from her anus, which had previously been associated with a bowel condition and lactose intolerance.
Whilst the Department recorded that the mother had advised that the father had said that he had not left X with her uncle – but he “lies a lot” – this statement is, I consider, a more accurate description of the mother’s recounting.
I accept that the Department advised that it did not regard the information provided by the mother as meeting the criteria for a “notification”;[63] I also accept that the Departmental records contain the conclusions that: there was no information to suggest X had been sexually abused or harmed; there had been no disclosure; and there was no evidence of bruising or trauma.
[63] Exhibit 1 page 1313.
I accept that, when the mother emailed U Centre on 28 August 2017,[64] she advised that the Department would not “step in” because she was a protective parent and the doctor (Dr Y) had said there had been no abuse. I accept her email also asserted that she still had to tell the father, which she intended to do before she collected X that day or that she might do that tomorrow as she still had to finish some university work. I accept that the mother also sent the father a text in which she told him that X had been “saying some weird things” and had “been a bit clingy”; I accept that, when he asked her what the “weird things” were, she told him that she would tell him tomorrow.[65]
[64] Exhibit 7.
[65] Exhibit 12.
I accept that, on 29 August 2017, the mother texted the father to ask him when he could talk; I accept that, later that night, she sent him another text to tell him that she was at school and that X was at her mother’s (the maternal grandmother’s) place if he wanted to call her; I accept that she ended her text using the ‘smiley face’ emoji.[66]
[66] Exhibit 12.
I accept that, in an email she sent to U Centre at 10.32 pm on 29 August 2017,[67] the mother said she had called “Child Safety” and that they were referring the matter to police, but she really wanted to get X’s underpants tested. I accept she said that “Child Safety” had said that she (the mother) could go to the police herself and she was thinking that she wanted to do that. She also said that “Child Safety” was doing a referral to “CC Organisation”. There is no evidence to suggest that the Department “were referring the matter to police” and the suggestion that this was the case is completely contrary to the Departmental conclusions referred to in paragraph [89] above. That the mother recounted the information that she did about the Department’s supposed actions in the email that she wrote to U Centre on this occasion is, I think, another clear example of either her capacity to misrepresent what had happened (to the extent that it is the complete opposite of what had occurred) or to simply lie. Her actions on this occasion and the others noted throughout these Reasons means that the mother’s evidence cannot, in my view, be regarded as reliable or, often, truthful.
[67] Exhibit 7.
The mother’s evidence included the assertions that, in August/September 2017, X began to lose a lot of weight, was not eating much food (and only wanted to be breast-fed), was sleeping much less at night and started to tell her that she was “terrified” of “the monster”.[68] However, other evidence also establishes that she was so unwell on about 8 September 2017 that a doctor attended the home. She said she recalled X telling her that “the monster said shhh, shhh, shhh” and “the monster did this” and put her hand over her mouth. She also said X told her at this time that the father was “the monster” and that, whilst he had put this down to X watching the Monsters Inc movie, she did not think this made sense because X was referring to “the monster” doing sexualised things to her.[69] Given the mother’s interpretation of X’s rubbing or pressing two toothbrushes together (having them “kiss”) as being a “threesome”, I have no confidence at all in accepting her contentions that whatever X was telling her or however he was behaving was “sexualised”. Further, the account that watching the movie Monsters Inc could have been responsible for three year old X’s comment about being scared of monsters and/or her comment about a monster acting in a particular way (if that happened) does not seem at all fanciful to me.
[68] Affidavit of the mother filed 29 June 2021, paragraph 117.
[69] Affidavit of the mother filed 29 June 2021, paragraphs 118–119.
I accept that, during a consultation with Ms T at U Centre on 4 September 2017,[70] the mother advised that the Department had not sent through a police referral but she was welcome to go to the police, provide a statement and present whatever evidence she had. I accept the mother also spoke about X’s toilet habits and behaviour; I accept she said she wanted X to have a relationship with her father, but she was uncertain if this was safe.
[70] Exhibit 7.
The mother’s evidence included that she went to the police on 5 September 2017 “out of concern for X’s safety”; she said she spoke with Officer DD, showed her the photographs she had taken of the underpants on 19 August 2017 as well as the soiled underpants themselves (which were taken by the officer as evidence). The mother said that Detective EE was assigned to the case and advised her not to allow X to spend unsupervised time with the father. The mother said that she was later advised by police that a lack of evidence meant that the file was being closed.[71]
[71]Affidavit of the mother filed 1 May 2020, paragraph 58; affidavit of the mother filed 29 June 2021, paragraph 111.
According to the police documents, when the mother made a report on 5 September 2017,[72] the information she provided included that the doctor had said it may be semen and that another doctor’s physical examination of X revealed no signs of physical trauma. I reject the suggestion that either of the medical practitioners who examined X on 23 August 2017 said that the discharge on X’s underwear may have been semen. The mother’s assertion that a doctor did is, in my view, simply false.
[72] Exhibit 1 pages 950–956.
I accept that the clothing the mother brought with her (namely, underwear, pants and a cloth nappy) was lodged by the police for forensic analysis.
I accept that, when the mother spoke to police on 5 September 2017,[73] she alleged that X had been sexually abused by her father and/or uncle on 19 August 2017. I accept that the information she provided included that:
[73] Exhibit 1 pages 42–45.
(a)when she collected X from her father, he advised that she had “farted” and had some “follow through”; and
(b)on 21 August 2017, she had taken X to a park, where the child said “ooh mummy, I need to go to the toilet” – when the mother looked in X’s underwear, she noticed faecal matter surrounded in a clear, cloudy jelly-like mucus substance with two short black hairs (possibly pubic hair); and
(c)she had taken X and the clothing to a doctor and he told her that the mucus-like substance could possibly have been from a bad bowel infection – which the mother said X did not have – and that it may have been semen.
There is no record that, until she spoke to the police, the mother had told anyone else to whom she had previously spoken that she had seen “two short black hairs (possibly pubic hair)” when she looked at X’s underwear. As I think it overwhelmingly unlikely that any parent who saw what they thought to be pubic hair in their child’s underwear would fail to mention it at the very first opportunity – let alone to a doctor upon whom they had attended only a few days after making such an observation – I reject the contention that the mother saw this when she looked at X’s underwear. I think it much more likely than not that this was a “detail” that she added in her recounting to police in the hope that it would make them take her complaint more seriously.
I accept that the police documents record that, amongst other things, the mother also said, in essence, that, after she and X returned to live in the father’s house in April 2017, she had seen X’s uncle kissing and holding X in an inappropriate way (kissing with full lip contact and for longer than normal) and walking into the room and grabbing her and hugging and kissing her without acknowledging other adults. I do not accept that X’s uncle has kissed or held her in an inappropriate way or that he has otherwise behaved toward her as the mother’s evidence suggests. The mother said X had been placing objects (such as paint brushes) in her anus since January 2017 and that she had seen her run into uncle’s bedroom, jump on his bed and tap her bottom while saying “touch my bum, touch my bum”. The evidence given by both the father and X’s uncle was that they had not seen X act in this way and, again, I prefer their evidence to that given by the mother. The mother also said that X had told her she held their female dog’s dick and, when asked to clarify, held her hand up, cupping her hand and said “I held the dick like this”.
I accept that the test results obtained on the basis of Ms JJ’s observations of X did not fall within the autism category and were below the cut-off for autism spectrum disorder.
Whilst the information provided by the mother and the school to assist Ms JJ’s assessment both included that X had been observed to overreact to sensory experiences at home and at school, this was the only account that was similar: whereas the mother rated X as experiencing problems across social communication, self-regulation, peer socialisation, adult socialisation, social/emotional reciprocity, atypical language, repetitive behaviours, behavioural rigidity and sensory sensitivity, the information provided by X’s school did not indicate that she had difficulties across these areas (save in relation to attention deficits).
I accept that Ms JJ noted that:
(a)whilst X’s teacher’s responses resulted in her being rated within the expected range compared with her peers for her inhibitory control and impulsivity, the mother’s responses resulted in her being rated as clinically elevated – which Ms JJ opined as suggesting that X had clinically significant difficulties with sustained attention, working memory, impulsivity and/or hyperactivity in the home environment and that she demonstrated more impulsive behaviours at home than at school; and
(b)whilst X’s teacher’s responses resulted in her being rated within normal limits in her awareness of the impact of her own behaviour on other people and outcomes, the mother’s responses resulted in her being rated as clinically elevated – which Ms JJ opined suggested that, at home, X was seen to have substantial difficulty monitoring her behaviour in social settings; and
(c)whilst X’s teacher’s responses resulted in her being rated as average in her ability to move freely from one situation, activity or aspect of a problem to another as circumstances demanded (namely, she was generally able to change from task to task and place to place without difficulty; she was able to think over and accept different waves of solving problems; and was able to demonstrate flexibility in day-to-day activity), the mother’s responses resulted in her being rated as clinically elevated – which Ms JJ opined suggested that X demonstrated greater difficulty transitioning between activities at home than at school; and
(d)whilst the teacher’s responses resulted in X being rated as mildly elevated on the emotional control scale (which suggested difficulties regulating or modulating her emotions), the mother’s responses resulted in her being clinically elevated – which Ms JJ opined suggested that X demonstrated an overreaction to events, sudden outbursts, sudden and/or frequent mood changes and excessive periods of emotional upset at home.
I also accept that Ms JJ reported that X’s score on the working memory aspect of the assessment completed by both the mother and the school suggested that she had has substantial difficulty holding an appropriate amount of information in her mind or in her active memory for further processing, encoding and/or mental manipulation, which had a negative impact on her ability to remain attentive and focused for appropriate lengths of time and also that the reports from both the mother and the school suggested that she had marked difficulty planning and organising information, which had a negative impact on her approach to problem-solving such that she had greater difficulty with planning and organising than most other children of her age.
On the basis of the information available to her, Ms JJ reported that, overall, X’s profile suggested that, whilst she had broadly intact inhibitory control and emotional modulation and the ability to shift her attention and to self-monitor her behaviour, she experienced difficulties with one or more aspects of initiating, planning, organising and monitoring output, holding information in working memory over time and organising her belongings. In addition, she also noted that X’s teacher had not observed that she had greater difficulties with friendships than other children.
I accept that, based on the information available to her, Ms JJ considered that the assessment did not find evidence that X demonstrated persistent deficits in social communication and social interaction across multiple contexts and that her presentation did not fulfil the DSM-V criteria for either ADHD or ASD.
Whilst Ms JJ stated that X experienced difficulties in executive functioning and that research had found that children/adolescents often show deficits in their executive functioning abilities after exposure to traumatic events, the linking of these two matters clearly depends on the assessment of whether X has been exposed to traumatic events.
I accept that X had a session with Dr R on 3 March 2021[555] and that it seems more likely than not that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was euthymic; the mother told her that X had been dysregulated at home and was angry with her and afraid that her father would put a mask over her mother and take her away. Dr R also recorded that the mother told her that X’s teacher had “mounting concerns” about her (as she needed to use the “comfy corner” regularly, had difficulty starting tasks, completed half the workload of other students, displayed perfectionism and worried about making mistakes).
[555] Exhibit 1 page 1268.
I accept that, when she provided feedback about Ms JJ’s psycho-educational report on 3 March 2021,[556] the mother complained that Ms JJ had accorded equal weight to her report and the teacher’s report of X’s behaviours despite the teacher having only known X for four weeks. I accept she also asserted that X was unable to engage in play dates, had to walk home the same way every day and speak to the same dogs (and would scream at anyone else who was there), was very rigid, had great difficulties with her emotional regulation, would cling to her at a party and hated it if other children touched her and that it was difficult to encourage her to do extra-curricular activities. I accept that the mother also stated that the occupational therapist had diagnosed X as having sensory processing issues, which affected her ability to socialise. It seems that, following the mother’s feedback, Ms JJ agreed that she would obtain further information from the teacher in a month’s time and update her report with the benefit of the same.
[556] Exhibit 1 page 1190.
I accept that, on 10 March 2021, the father filed an Application in a Case seeking orders for X to spend supervised time with him and communicate with him by telephone at least once each week.
I accept that X had a session with Dr R on 10 March 2021[557] and that it seems more likely than not that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, the mother advised that: X was unlikely to obtain NDIS funding; problems at school had been escalating (and that X’s teacher had reported she had become quite rough with other students, had a reduced workload and needed to use the “quiet corner”); X had reported new fears of being “taken” (abducted) by her father if she went outside (e.g. to take the wheelie bin out). It seems quite clear from the notes that both the mother and Dr R highlighted the issue of safety with X: in particular, Dr R noted she worked with X about what she should do if she felt unsafe around another person, particularly an adult and that this was to run, kick and scream.
[557] Exhibit 1 page 1269.
I accept that X had a session with Dr R on 17 March 2021[558] and that it seems more likely than not that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, the mother reported that X had told her that only the boys at school were annoying and had said that she did not trust them because they “try to trick me that they’re nice when they’re not” – “like dad did”.
[558] Exhibit 1 page 963.
I accept that Dr R’s 18 March 2021[559] report (also addressed “To Whom It May Concern”) was really based only on a combination of the information provided to her by the mother and X. Whilst it repeated much of what she had outlined in her earlier reports, this report also asserted that:
[559] Exhibit 1 pages 997–1002.
(a)more recently, X had been experiencing a greater number of interpersonal concerns with children at school: she had reported mistrust of boys (but not girls) because boys “try to trick me that they’re nice when they’re not”; reportedly had a very low tolerance for boys being near her and could become distressed very quickly – which impacted negatively on her emotional, social and academic experience at school and caused her to miss out on vital learning opportunities when she was removed from class to regulate her emotions; and
(b)over the previous four months, X’s behaviours at school and home had become increasingly aggressive, controlling and fearfully avoidant (e.g. she feared being kidnapped by her father if she took the rubbish bins out with her mother) and she had been seen to have difficulty calming her body down and her fears appeared to be generalising to unrelated areas; and
(c)on 4 November 2020, the mother had told her in session that she had been contacted by X’s school with information about a disclosure the child had made to teachers (but not told what the content of this was): that, when the session started, X had asked her mother to leave the therapy room and, after this occurred, Dr R had asked X about her brave behaviour in talking to the teachers at school, during which the child indicated she felt safe to do so, appeared reluctant and resistant to discussing the topic in session, became withdrawn and asked if her mother could come back in and tell Dr R what had happened because she did not want to talk about it; and
(d)on 11 November 2020, X had told her during their session that she did not want to see her father “ever again”: when asked why, she said “my dad touched my bum, my private parts”; when asked whether that was why she did not want to see him, she said “yes”; when she was asked whether she felt safe, she said “yeah, without seeing him, I do” and then changed the topic and asked to play a game; and
(e)on 18 November 2020, X (who was described as having appeared uncertain and withdrawn) had asked her in session if she could tell the police to catch her father to “make him nicer…to teach him”: when she asked X why, she responded “because he touched my private parts” and soon after added “…five times”; and
(f)on 26 November 2020, the mother reported that X had had interaction with her father during a court-related matter: X had been more withdrawn in the session and had given her mother permission to talk to Dr R on her behalf because she said “I don’t want to talk yet”; later when asked about seeing her father a few days earlier, X had said it was “good” but then later said she felt “embarrassed” and that she would not have been safe if Ms B had not been in the room with her; further, X said she wanted the police to catch her father because “he touched my private parts” and “it hurt”; she also said “he is not nice”; the mother had reported X had been happy after seeing her father and came running from the interview room shouting “he didn’t touch my private parts” over and over again but, in the days after seeing him, the child’s demeanour had become more withdrawn and she engaged in more self-soothing behaviours; and
(g)during the session on 10 March 2021, X had reported a new fear of being “taken” or abducted by her father if she went outside (even with her mother) and said she was fearful of taking the rubbish out because she would be taken by him: she had been overly aggressive with her mother and Dr R during this session and had experienced difficulty with taking direction and regulating her heightened emotions; and
(h)during the session on 17 March 2021, X had reported that she did not like boys because “they try to trick me that they’re nice when they’re not” and followed this up with the spontaneous comment “like my dad did”: when she was asked if she felt this way about girls, she said “no”; her behaviour toward boys in her class had become increasingly problematic that year and included angry outbursts towards them when they came near her (eg hissing at them) and she had been very distressed and had experienced difficulties regulating her behaviour.
(i)X had:
(i)clearly stated that her father had sexually abused or assaulted her and clearly linked him with “the monster(s)” she had described on a number of occasions in the past: displayed significant fear about monsters and consistently associated monsters with touching her genital areas, including inserting fingers into these; and
(ii)clearly reported that she did not want to see her father and feels safer when she does not see him; and
(j)X’s observable behaviours appeared consistent with embarrassment, fear, anxiety and trauma (e.g. withdrawing, fear of getting into trouble, changes in appetite) and appeared to be worsening such that she was displaying increasing aggression and her fears were generalising from her father to males and now boys from her class such that her overall wellbeing and learning opportunities were being negatively impacted.
I accept that X had a session with Dr R on 24 March 2021[560] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was demanding and displayed a dominant engagement style. Dr R noted that the topics discussed included “court stuff” and that X asked her mother to tell the therapist that she did not have to go to the police; it seems more likely than not that it was the mother who told Dr R that X had said that she was afraid that the father would break in and kidnap her: X said she told him to stop doing something and he did not listen so she screamed at him.
[560] Exhibit 1 pages 964–967.
I accept that X had a session with Dr R on 31 March 2021[561] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was dysregulated and hissed at her mother when she was unhappy. Dr R’s notes reflect that the mother reported X had screamed at another child in class and that the mother was implementing strategies at home (which included “trauma-informed yoga”). It appears that Dr R undertook an activity called “size of the problem” with X during the session and this ranked problems in size from one (being a “tiny problem”) through to five (being a “huge problem”).
[561] Exhibit 1 pages 967–980.
What happened in April 2021?
I accept that, in an email she sent to her solicitors on 9 April 2021[562] (and which she subsequently sent to Dr R on 13 April 2021), the mother said, amongst other things, that:
[562] Exhibit 1 pages 1071–1072.
(a)X’s level of fear increased significantly, along with distinct lack of confidence and a break in her trust in the adults around her when she was forced by Ms B and the Independent Children’s Lawyer to see her father; and
(b)in the last few months particularly, X had been fearful of the father kidnapping her or entering a room after she spoke about the sexual acts he committed against her and this all stemmed from X having disclosed during the Family Report interviews as she had got to the point in therapy where she felt less shame and fear and was confident and safe to disclose to safe adults and did so; and
(c)X had suffered from nail-biting since meeting with Ms B and the father and that, due to fear and anxiety, she had clammed up about even talking to her mother or Dr R about the sexual abuse or the Family Report – when it was clear that her behaviour and fears and other known indicators were showing she was thinking about these things; and
(d)X had told her that morning that she was fearful and scared of “the lady that made me see Dad” and had asked, in a scared voice, whether she would make her go and see her again; when the mother promised that she would not and asked her why, X had said she was “afraid that the lady would make her see her father”, that she was scared of the lady and said something along the lines that she felt angry about it; the mother said she told X that she felt angry too and that Ms B had done the wrong thing and that other adults were doing something about it so X did not have to worry about it; and
(e)X had been keen to know that other adults were angry about what Ms B had done and that she should not have made X see her father; and
(f)X had also said that she knew her paternal grandmother had been there too, but Ms B had told her to stay in the waiting room and that she was not allowed in but the door to the room had remained open so she would at least have heard all of this, although she was unsure what she heard and so the mother raised:
(i)the unprofessional nature of Ms B in allowing X to know her grandmother was in the room; and having no privacy/barrier around that to shield X; and
(ii)her confusion and query around that incident; and
(g)Ms B had turned them away from the door when they arrived, saying she did not have a safety plan when asked for a room for X and the social worker to wait to be interviewed and they had just sat in a car for one and a half hours with a child with documented developmental delays regarding sensory and the need to move and Ms B, who had “ordered” her to bring X and a babysitter (without considering whether this would not be possible or economical for the mother) had nowhere for them to be; and
(h)she just wanted to flag this information in case it was of any value in the submissions and that they should definitely keep it on file for future reference.
I accept that X had a session with Dr R on 15 April 2021[563] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, there was some discussion about a nightmare that X had had; additionally, Dr R recorded that “NB later Mother reported more details about the dream that [X] didn’t mention”.
[563] Exhibit 1 page 1270.
I accept that, on 20 April 2021,[564] the mother emailed X’s class teacher to tell her that X had been given some emergency essence oral spray (which was in her pocket) to use at her discretion for her feelings of anxiety and aggression; I accept the mother told the teacher that it could be good if she suggested to X that she use the spray and that X’s psychologist had suggested its use.
[564] Exhibit 1 page 814.
I accept that, in an email she sent to the Deputy Principal of X’s school on 22 April 2021[565] in response to an earlier email sent to her by the class teacher (on 29 March 2021), the mother said, in essence, that the teacher had not noticed X’s asserted rigidity, difficulty with sounds and inability to form friendships with other children because X had been “masking” the same in class. I accept the mother also said that: the police had been concerned that X’s class teacher had approached X as if she was a problem to be solved and as just another “normal child”; X had been assessed and it had been discovered that she suffered from development delays (“cognitively, socially, sensorially”) and from childhood traumatic stress (childhood PTSD) in the very high range; X’s behaviours stemmed from abuse, contact with legal systems and her sensorial dysfunction; because the teacher had only known X for a few weeks when she answered the NDIS funding questionnaire, the results were skewed and the assessment did not say whether X’s behaviour stemmed from childhood trauma or ASD; there was no doubt that X’s behaviours were there and real; she felt that some of her concerns about X’s behaviour were “fobbed off” by the class teacher as being the behaviours of a child who was tired at the end of Term when, in actual fact, X had also been experiencing acute fear of being kidnapped by her father; unfortunately X had a neglectful and dangerous parent (who was not her) who was the ongoing cause of these problems; she felt as though the class teacher saw her as a neglectful parent whose views should be bypassed; she wanted nothing more than for X to be happy and learning and interacting and getting on with her life, but she could not wave a magic wand to make that happen.
[565] Exhibit 1 pages 780–782.
I accept that X had a session with Dr R on 26 April 2021[566] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, it was reported (I think more likely than not by the mother) that X was having behavioural issues at school and these had increased since she was not talking about her issues; that things had changed after she spoke to the police; that there was a parenting hearing the following week; that X’s teacher had been patronising to the mother and uninformed about trauma and that the mother could not wait until the court process was over so that things could go back to normal and she could focus on helping X at school.
[566] Exhibit 1 pages 1271–1272.
I accept that, on 29 April 2021,[567] X wrote “I hate my life” on a whiteboard at school and that, after the mother was told about this, she advised that this was a recurring thought that X had been having.
[567] Exhibit 1 page 693.
What happened in May 2021?
I accept that an interim hearing occurred on 6 May 2021 and that the decision in the same was reserved that day.
According to Departmental records,[568] when the mother contacted the Department on 10 May 2021, she advised, amongst other things, that:
(a)the Independent Children’s Lawyer was “a nightmare”; and
(b)X had told Ms B that her father had touched her private parts but within minutes of this disclosure, the Independent Children’s Lawyer allowed the father to have contact with the child (who did not have a support person present) and this resulted in X experiencing emotional harm; and
(c)X had regressed since meeting her father at the Family Report interviews (and had not stopped talking about how fearful she was that he was going to kidnap her) and was experiencing PTSD; and
(d)she had been forced to do supervised visits (against the DVO conditions) and the father had been abusive to her in X’s presence and she was worried about him getting unsupervised contact.
[568] Exhibit 1 pages 1367–1374.
I accept that X had a session with Dr R on 12 May 2021[569] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was agitated, demanding, non-responsive and bossy: she threw pens around; she threw small items at her mother and she had a tantrum about having to go to school after the session because she said she felt tired. It seems much more likely than not that the mother told Dr R that X had been scared that “dad might come in through the window and spy on us” and that she and X had “problem solved” about this issue; I accept it is likely the mother also told Dr R that X’s behaviour at school corresponded with her anxiety levels at home (that is, when she was fearful at home, she demonstrated poorer behaviour at school). Dr R noted that X described not sleeping at home and keeping herself awake: when she was asked why, X said she had to monitor for sounds of her father trying to break in so she could wake her mother; Dr R noted that, despite her efforts to try and get X to agree to shift that job to her mother, the child was very insistent and unwilling to stop being on alert.
[569] Exhibit 1 pages 1273–1276.
Dr R recorded that, when she asked X “I am safe because?”, X said: “I hate my dad, because he touched my private parts”; when asked “do you remember this happening?”, X said “yes”. Dr R noted that, when she asked X this question again, X said “I am worried he will come and take me away”; when she asked the child “why would your dad take you away?”, X said “because that’s what dads do”; when Dr R asked her “where did you get that idea from?”, X said “nowhere, I just thought of it because some dads are nice and some are mean.”
I accept that Dr R’s 17 May 2021[570] request to Dr AK for further referral of X to her for ongoing therapeutic support informed that it had been reported in recent sessions that X was reportedly experiencing more difficulties at school, in the classroom and with her peers (particularly around distress tolerance and regulating her emotions) and that the child had reported experiencing fears she would be kidnapped by her father (e.g. when taking the rubbish out) and that he would break into her house and spy on her (which resulted in her staying awake at night to monitor this). I accept that Dr R told Dr AK she planned to work with X on anxiety management and emotion regulation strategies and, within that, to work towards helping her sleep better at night (that is: worry less about someone breaking in) and better regulate her emotions so she could socialise more successfully in the classroom.
[570] Exhibit 1 pages 1309–1311.
According to police records, an anonymous complaint was made to a Child Protection Investigation Unit on 21 May 202[571] about behaviour reported to have occurred in the mother’s home on 1 May 2021. The records of the complaint outline that the allegations included that: the mother was continually verbally abusing X; screaming, yelling and banging noises could be heard nearly every day; the mother mocked X when she cried, accused her of ruining her life and degraded her; most recently on 1 May, the mother had thrown X’s painting supplies and toys off the balcony and screamed at her for doing art inside, told her that she ruined everything (including the mother’s life) and that she lied consistently and also told her to stay outside and that she was not allowed back into the unit. The police records also include the information that this was apparently not a one-off incident but occurred every couple of weeks. The police records noted that the validity of the information could not be confirmed as the informant’s details were unknown.
[571] Exhibit 1 page 949.
I accept that, after police provided the Department with the information about this anonymous complaint on 24 May 2021,[572] the Department recorded the same as a Child Concern Report, noting that as X attended school, the school would be in a position to notify the Department if it held any concerns about X.
[572] Exhibit 1 pages 1375–1382.
What happened in June 2021?
I accept that X had a session with Dr R on 9 June 2021[573] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was withdrawn and did not want to talk about subjects she raised with her; when she was asked who she played with at school, she said that she did not know and did not know their names (although she referred to a friend called CA) and said she continued to dislike boys, especially those in her class. Dr R noted that the mother advised that, whilst X’s behaviour in class at school had improved, she remained fearful of being kidnapped at night and the strategies intended to help her to decrease her hypervigilance had resulted in little improvement to date. I accept that the mother also told Dr R that, given the father had been accused of sexually assaulting X, she was concerned by the number of naked or semi-naked photos of X. Dr R noted that she had seen all these photographs and could confirm that there were quite a number of naked and semi-naked photos of X, together with photographs of the father in bed with X and X on the toilet: she also noted that there were few, if any, photographs of X with her mother other than a series of photos of X with her mother in the shower and whilst she was breast-feeding.
[573] Exhibit 1 pages 1277–1278.
I accept that, in her “To Whom It May Concern” report dated 11 June 2021,[574] Dr R repeated much of what is contained in other reports she authored. She outlined:
(a)X had reported experiencing significant fears associated with night time, going to bed, sleeping, toileting, showering and bathing and a fear of monsters: she more recently reported fearing that she will be required to see her father, that he will break into her house and kidnap her and that, consequently, she has refused to go outside and complete usual tasks such as taking the bin out with her mother; and
(b)when X was anxious she experienced difficulties regulating her emotions (which resulted in high levels of distress for her and those around her) and she had had periods of being very dysregulated (e.g. refusing to sleep due to hyper-arousal and hypervigilance because she believed she needed to stay awake to hear if her father broke into her house); and
(c)X’s anxiety about her father breaking into her house and kidnapping her had been a fear that had been resistant to therapeutic interventions to date – which highlighted the severe nature of the thoughts and feelings for X; and
(d)X had disclosed on multiple occasions during therapy that she was sexually abused by her father when she was younger: before she developed adequate verbal and communication skills, her fears had played out in her behaviours (such as regressing in previously accomplished skills like toileting, showering, bathing and sleeping and being fearful at night and of “monsters”) and, as she had developed more sophisticated verbal skills, she had begun describing the nature of the sexual assaults and her fears (e.g. the “monster” is her father); and
(e)whilst X had made significant gains in her ability to feel safe and regulate her emotions with the assistance of therapy and extensive support from her mother in the home environment, it had been observed that she had regressed in her progress after she was required to have contact with her father as part of the recent legal processes and that she had “observed a huge regression in X’s mental health after the single encounter X was forced to participate in for the independent court report conducted earlier in the year” – it was reported that X again had problems with independent toileting and showering/bathing, she began to withdraw socially and emotionally and her reported fear of the dark and difficulty sleeping returned; and
(f)it would be extremely detrimental to X’s mental health to change her living arrangements: it was essential that she stay in all her current environments (including being close to school, friends, community, extra-curriculars and places she knows and in which she feels secure because they are safe and familiar to her) and disrupting her relationship with her mother in any way was strongly discouraged because the impact of doing so would likely be “catastrophic” for X’s emotional and mental wellbeing and would bode poorly for her.
[574] Exhibit 1 pages 1012–1013.
I accept that, in her “To Whom It May Concern” report dated 21 June 2021,[575] Dr R repeated the entirety of what is contained in the report dated 11 June 2021 she authored. However, in addition, she also outlined that:
(a)X’s behaviours, such as her refusal to go to sleep (due to hyperarousal and hypervigilance), staying awake past her bed-time to listen for sounds and excessive checking of windows and doors in her home, would likely evolve into obsessive compulsive disorder if left untreated; and
(b)X had been dysregulated in the classroom at school because of her anxiety and thoughts related to her father: she was often in a “fight or flight” mode and had recently reported that she no longer liked boys in general, would not let them come near her and had started behaving in an agitated manner toward them – her “threat response” changes in behaviour coincided with her increasing fears related to the father kidnapping her and general night time anxiety; and
(c)her opinion, based on her “extensive experience in the field of psychology and trauma”, was that it would be extremely detrimental to X’s overall physical and mental wellbeing if her current care arrangements (namely, sole custody with her mother) changed in any way; and
(d)given that, as part of building trust with X she had been encouraged to use her voice and had been told she would be protected, if she is not listened to – when she says that she is fearful of seeing her father and does not want to see him, that he sexually assaulted her and that she fears he will do so again – and is forced to spend any time with her father, her belief in trusted adults’ ability to keep her safe would be shattered and her trust in her caregivers would be undone (which would undermine her psychological wellbeing and would likely have a devastating impact for her overall) and her relationship with her mother (with whom she had a very secure attachment) would be at risk, which could have lifelong implications for her, including impacting on future relationships due to breached trust; and
(e)based on what she had observed previously with X, she anticipated that, if X were forced to spend any time with her father “who perpetrated sexual violence upon her and for whom she is scared will kidnap her”, this would likely result in significant psychological damage to her that may not be fully reparable.
[575] Exhibit 1 pages 988–990.
I accept that the mother attended on Dr C on 23 June 2021 for psychiatric review.[576]
[576] Affidavit of Dr C filed 19 July 2021.
I accept that X had a session with Dr R on 24 June 2021[577] and that the mother was present for at least some of the session. According to Dr R’s notes of the consultation, X was dishevelled in appearance; it seems much more likely than not that the mother told Dr R that this was because she was sensitive to having her hair brushed. Dr R noted that there was discussion about X being afraid her father was going to go to her school and that the child told her that “I’m afraid Daddy is going to wear a mask of your face and come to the office and then take me”; the mother also reported that, despite her reassurances, it could take X 15 to 60 minutes to fall asleep on occasions and that she sometimes needed to get up and check the windows.
[577] Exhibit 1 pages 1279–1280.
What happened in July 2021?
I accept that X had a session with Dr R on 7 July 2021.[578] According to Dr R’s notes of the consultation, X asked to have all of the session with her: she was engaged and euthymic, co-operative in completing tasks and said that she did not want to talk about any “tricky topics” – a stance that was said to have been consistent with her approach to her engagement with Dr R over the previous weeks.
[578] Exhibit 1 pages 1281–1282.
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