Connors and Prichard
[2016] FamCA 1114
•22 December 2016
FAMILY COURT OF AUSTRALIA
| CONNORS & PRICHARD | [2016] FamCA 1114 |
| FAMILY LAW – CHILDREN – Allegations of abuse – Whether the father presents an unacceptable risk of harm to the child – Whether the mother has fabricated allegations of sexual abuse against the father – Whether the child is at an unacceptable risk of psychological abuse in the mother's care – Where there are other allegations against the father by people who have no connection to the mother – Where the allegations of sexual abuse of the child by the father are unsubstantiated – Where weight is placed on the overall evidence of sexual impropriety by the father towards several complainants – Where there is a risk to the child in the father's unsupervised care – Where the risk is unacceptable – Where the assumption of equal shared parental responsibility is rebutted – Where the child has been exposed to family violence in the mother's care – Where the child is at risk of neglect and exposure to drug use in the mother's care – Where the child is to live with the mother and spend ongoing supervised time with the father – Where the Department of Communities, Child Safety and Disability Services is requested to undertake a thorough investigation and assessment of the mother. |
| Family Law Act 1975(Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) ss 55, 140 |
| Banks & Banks (2015) FLC 93-637 Re: H& Ors (1996) 1 All ER 1 |
| APPLICANT: | Mr Connors |
| RESPONDENT: | Ms Prichard |
| INDEPENDENT CHILDREN’S LAWYER: | Catherine Burchill |
| FILE NUMBER: | BRC | 9492 | of | 2015 |
| DATE DELIVERED: | 22 December 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 7 - 10 November 2016 and written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Oakley |
| SOLICITOR FOR THE APPLICANT: | KLM Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Berck Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Burchill & Horsey Lawyers |
Orders
Ms Prichard (“the mother”) shall have sole parental responsibility for B born on … 2008 (“the child”).
The child shall live with the mother.
Mr Connors (“the father”) shall spend time and communicate with the child as follows:
(a) Each alternate Saturday for up to eight hours if that can be accommodated by the Children’s Contact Centre Suburb C (“Contact Centre”) either at the Contact Centre or at some other place at the discretion of the Practice Leader (or other person in charge) of the Contact Centre but in any event for the maximum time available by the Contact Centre on condition that any time is supervised by a person nominated by the Practice Leader (or other person in charge) of the Contact Centre;
(b) For make-up time on the Saturday immediately following any Saturday referred to in the preceding subparagraph in the event the child does not attend the Contact Centre for any reason;
(c) By telephone on the child’s birthday;
(d) By sending a card and gift to the child’s residence on her birthday, Easter and Christmas.
Any costs associated with the first two hours of supervised time shall be borne equally by the mother and father but any additional cost shall be borne solely by the father.
The father shall be at liberty to attend any of the time at the Contact Centre (or elsewhere) with up to two members of the paternal family (subject to any direction by the Contact Centre supervisor).
The mother shall keep the father advised at all times of her residential address, email address and mobile telephone number.
The father shall keep the mother advised at all times of his residential address, email address and mobile telephone number.
The mother shall keep the father informed of the name and contact details for any medical practitioner or allied health professional providing treatment or assessment of the child and this Order is sufficient authority for any such person to provide the father with information relating to the child (at his cost).
The mother shall keep the father informed of the name and contact details for any school attended by the child and this Order is sufficient authority for the school to provide the father with information relating to the child including report cards (at his cost).
The Independent Children’s Lawyer is requested to forthwith provide a copy of this Order and the Reasons for Judgment to the Department of Communities, Child Safety and Disability Services (“the Department”) with a request that the Department undertake a full assessment of the living conditions of the mother and any risks associated with the child living with the mother.
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The Independent Children’s Lawyer is discharged effective from 31 March 2017.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.
NOTATION
It is requested that the Department undertake an risk assessment of the child’s living arrangements with the mother and for that purpose interview Mr D (the alleged partner of the mother), the mother’s parents, the teachers at the child’s school and that the Department arrange a comprehensive assessment of the child’s medical and psychological needs and in particular an urgent review of her current medication and the need for it. It should be noted that in the view of the Court the mother is not a reliable source of information and nothing she says should be taken at face value.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Connors & Prichard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9492 of 2015
| Mr Connors |
Applicant
And
| Ms Prichard |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute between Mr Connors (“the father”) born in 1974 and Ms Prichard (“the mother”) born in 1979 concerning their only child together, B born in 2008 (“the child”).
The issues agitated at trial were as follows:
a)Is there an unacceptable risk of the child being sexually abused or exposed to family violence if she spends unsupervised time with the father;
b)Has the mother fabricated or in some way orchestrated allegations of sexual abuse against the father;
c)Is there an unacceptable risk of the child being emotionally, psychologically or physically abused if she continues to live with the mother.
This matter was designated a Magellan matter[1] in May 2016. The Department of Communities, Child Safety and Disability Services (“the Department”) elected not to intervene in the proceedings but provided two reports summarising their involvement with the family.
[1] Where serious allegations of child abuse are made
The father is seeking a final order for sole parental responsibility and that the child live with him and spend time with the mother, on a supervised basis if it is found there is an unacceptable risk of harm to the child in the mother’s care, but if it is found there is no unacceptable risk, then each alternate weekend and half holidays. If I find that there is an unacceptable risk of harm to the child in the father’s care then the father seeks to spend time with the child on a supervised basis for two hours each week at a contact centre.[2]
[2] The Minute of order sought by the father is set out in written submissions filed 28 November 2016
The mother is seeking a final order for equal shared parental responsibility and for a continuation of the current supervised time between the child and the father.[3]
[3] The order sought by the mother is as set out in her Response filed 22 January 2016
Background
The father and mother lived in a de facto relationship from late 2007/early 2008 until on or about 10 December 2013. Initially they lived at the E Motel in F Town, New South Wales before moving in late 2008 to G Street, F Town. On 18 February 2010 they moved to H Street, F Town before relocating to Brisbane in March 2012.
The mother has three other children with three former partners. Her other children are Mr I born in 1998, J born in 2000 and K born in 2003. The mother has no contact with Mr I or J.
K lived with the mother and father throughout most of their relationship and continues to live with the mother and the child.
After separation K and the child continued to live with the mother and spent time with the father each week from 5pm Sunday until the following Tuesday. The parties attended a mediation at the Suburb L Magistrates Court on 27 June 2014 and entered into a parenting plan which provided for K and the child to live with the mother and spend time with the father from Sunday afternoon until Wednesday morning in each week and for further time during school holidays. On the face of the parenting plan, the father signed on 16 July 2014 and the mother on 28 September 2014. The plan also provides that K has the right to decide if she will attend or not.
K ceased spending any time with the father in December 2014.
The mother stopped the father spending time with the child on 25 February 2015. The father recommenced spending time with the child on or about 9 April 2015 initially each weekend for two nights then reverting to the Sunday to Wednesday regime.
The mother again stopped the father’s time with the child in late May 2015.
The father commenced proceedings in October 2015 after a number of failed attempts to involve the mother in mediation.
On 8 December 2015 an Order was made for the father to spend supervised time with the child, however, supervised time did not commence until May 2016.
The matter was transferred to this Court on 28 May 2016.
The child currently spends two hours per fortnight with the father at the Children’s Contact Centre Suburb C (“the Contact Centre”) although the child has not attended every occasion time was due to occur.
The mother met Mr D via an internet dating service in about April 2015 and commenced a de facto relationship with him in about August 2015. Although not disclosed in the mother’s material it became apparent during the trial that there have been a number of separations since that time. Mr D has one female child aged six who allegedly suffers from Autism.
The father is not living with another partner but has a girlfriend, Ms M, who has no children according to the father. The father is forty-two years old and works as a tradesman. The mother is thirty-seven years old and Mr D is thirty-five years old. The mother and Mr D are unemployed.
The child appears to suffer from some form of intellectual impairment and is medicated with Ritalin.
The mother has a long history of interaction with Departments of Child Protection (variously named) in South Australia, Victoria, New South Wales and Queensland. She has a history of heroin addiction and her two eldest children were removed from her care.
The mother has been implicated as both a perpetrator and a victim in Apprehended Violence Orders involving K’s father, Mr N, in 2007. Mr N spent time in prison last year in relation to unrelated offences.
In 1996 the father was convicted and fined for assault occasioning actual bodily harm in relation to his then girlfriend, a sixteen year old with whom it is reported in the police records he had been in a relationship for four years. The father was twenty-two at the time of the offence which is noted to have involved him punching his girlfriend in the face and kicking her in the ribs causing one to break.
In 1997 and 1998 he was convicted and fined for common assault, resisting arrest and assaulting police.
In 2005 police interviewed the father in relation to an allegation that he had taken photos of children in a park in suspicious circumstances.
Also in 2005 the father was the respondent to an Apprehended Violence Order taken out by police in relation to the young child of his then girlfriend in which it was alleged he had sexually abused her.
In 2009 a complaint was made to police about the father allegedly behaving in a sexually inappropriate way with the young child of a male friend of his.
In June 2014 a friend of K, O, made a complaint to police about the father sexually abusing her over an extended period several years prior.
In July 2015 K made a complaint to police about the father sexually abusing her over an extended period several years prior.
The father has not been charged with any offence arising out of these various allegations involving children. There are no ongoing investigations relating to his alleged behaviour.
Police obtained a Protection Order on behalf of the mother against the father on 11 December 2013. It expired on 10 December 2015. The father was dealt with for a breach of that Order in June 2014 but no conviction was recorded.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[4]
[4] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[5]
[5] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[6]
[6] Banks & Banks (2015) FLC 93-637
Cases involving allegations of sexual or other abuse
The High Court said in M & M[7]:
[7] (1988) 166 CLR 69 at 76; (1988) FLC 91-979 at 77,080 and 77,081
…The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
…
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. …The utility of the identification and assessment of an ‘unacceptable risk’ was confirmed by the High Court in Fardon v Attorney General (Qld)[8] where the then Chief Justice said:
It was argued that the test, posed by s 13(2) (of the Queensland Act) of ‘an unacceptable risk that the prisoner will commit a serious sexual offence’ is devoid of practical content. On the contrary, the standard of ‘unacceptable risk’ was referred to by this court in M & M in the context of the magnitude of a risk which would justify a court in denying a parent access to a child. The court warned against ‘striving for a greater degree of definition than the subject is capable of yielding’. The phrase is used in the Bail Act 1980 (Qld), which provides that courts may deny bail where there is an unacceptable risk that the offender will fail to appear (s 16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade.
[8] (2004) 210 ALR 50 at [22]
In considering the ‘unacceptable risk’ assessment Fogarty J observed in The Marriage of N & S:[9]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
[9] (1996) FLC 92-655 at 82713-4
Standard of proof
Section 140 of the Evidence Act (Cth) 1995 provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
In Re: H & Ors[10] consideration was given to the relevant standard of proof to be applied in civil proceedings relating to an application to place a child in the ward of the relevant authority.
… Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. … Deliberate physical injury is usually less likely than accidental physical injury ... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[10] (1996) 1 All ER 1 at 16, 17
Sexual abuse allegations in this case
The mother alleges that the father has sexually abused the child and K but through her counsel submits that if I were to find her evidence in relation to the alleged sexual abuse of the child and K unreliable, I should nevertheless find the father presents an unacceptable risk of sexual harm to the child because of the evidence of O and the three unrelated complaints relating to the father contained in exhibit 3 from the New South Wales Police Service.
The father denies any sexual impropriety with any child at any time. He argues the mother has orchestrated the evidence suggestive of sexual abuse in so far as the child, K and O are concerned and submits that the evidence relating to the three unrelated complaints is unreliable and insufficient to found the basis of a finding of unacceptable risk.
In support of his claim that the mother has orchestrated the allegations of the child, K and O he alleges that the mother made similar allegations against K’s father, Mr N, after they separated and said to the father she did this “because he deserved it”. The father alleges that the mother told him that Mr N would make her drive to the local high school and primary schools and that he would look at young children and “toss off”. The father explained that he understood the mother to be alleging that Mr N masturbated because young children sexually aroused him. The mother denied these allegations.
The particular allegations made against the father and the evidence relied upon are considered in detail herein.
Child pornography
The mother alleges that on 10 December 2013 she saw three photos on the father’s phone while she was checking to see if he was cheating on her. She says the photos she saw made her feel “sick and disgusted”. She alleges the photos depicted young naked female children aged about eight or ten lying on a bed posing “like in a ‘penthouse’ or ‘playboy’ magazine”. She says that she confronted the father and the following exchange occurred:
M: what the fuck is this. Why do you have naked photos of children on your phone, what the fuck?
F: I don’t know why I have them. Someone from work must have grabbed my phone. Yeah I do, I don’t know why I do this.
On that same day around 3:00 pm or 4:00 pm, the mother alleges that she was assaulted by the father in the presence of the child K.
At 7.30 pm that same day she made a complaint to the police. The mother says that she told police about the child pornography she found on the father’s phone and that she was recorded while this complaint was made and that the police officer to whom she was speaking wrote down what she said.
A detailed account of her alleged ordeal on 10 December 2013 is described in the records produced by the Queensland Police. There is no mention of the mother informing police that she had found child pornography on the father’s phone. No recording or police notebook corroborates the mother’s evidence in relation to the alleged reporting of the father having child pornography.
The mother did make a complaint to police about the alleged child pornography on the father’s phone on 26 February 2015 and referred to this being prior to separation. However, the Queensland Police Service records note:
The mother was not able to describe the material, the circumstances of her viewing it or her actions. As a result there is insufficient (sic) to make an application for a search warrant.[11]
[11] Exhibit 3 page 25
On 6 July 2015 the mother communicated with a friend, Ms P as follows:
I left coz he gave me a black eye coz I confronted him about photos on his phone he has over 100 of photos of young girl naked
(errors in original)
The mother admitted during cross-examination that she had lied to Ms P when stating there were over 100 photos.
In the Contact Centre notes dated 20 February 2016 the following entry appears, having been written by a Ms Q:
[Ms Prichard] found “weird” search engines on the family computer and found child pornography sites had been accessed.
The mother denied making that allegation and denied that she had ever seen child pornography on a family computer.
Mr R, the family report writer, quotes the mother in his report as having said “And I even found photos of young children on the Father’s phone; and I gave them to the Police”. The mother denied telling Mr R this but he maintained that as it was in his report in quotes he was confident it was said.
On 1 March 2015 the mother sent a text message to the father which said inter alia:
… You make me sick. It was bad enough you taking photos and child Pornography photos on your phone ….
… was it wrong you taking photos of [K’s] bum …
There is no allegation in the mother’s affidavit material or anywhere else (apart from the text message) that the father took photos of K’s ‘bum’.
The father denies ever having child pornography on his phone or that the mother confronted him about it on 10 December 2013. He denies making any admissions about it. His response to the mother’s text on 1 March 2015 was:
What the fuck are you on about ans pls talk to me
In the mother’s Facebook communication with her friend Ms P on 29 September 2016 the mother says:
The night my best mate died 5 years ago I was the last to see him alive he told me about something that happened while I was at the motel. His computer was taken by the cops and everyone except fir me and [Mr Connors] were interviewed. The cops found explicit material of kids etc on the computer and that the 2 other ladies in [F Town] Her that knew him come forward and told him what [Mr Connors] did to their kids. What I didn’t realise is [Mr Connors] had followed me to his house and was watching us the whole time.
(errors in original)
No evidence to corroborate anything in this communication was produced.
In my view the mother’s evidence in relation to the father being in possession of child pornography is completely and utterly unreliable.
I do not accept that the mother told police about alleged child pornography on 10 December 2013. She provided a detailed account of events that day including the lead up to the alleged violence perpetrated against her. If she had made the complaint it would have been in the police records. The mother admits lying to Ms P about an important particular relating to the number of photos she allegedly viewed. I do not accept the mother’s denial that she told Ms Q from the Contact Centre that she had discovered child pornography sites had been accessed on the family computer. It is inconceivable in my view that such a note would have been made but for the mother providing the information. When the mother did make the allegation to police in February 2015 about viewing child pornography on the father’s phone she was unable to provide any particulars, in complete contrast to the detail she now asserts.
I reject the mother’s evidence that she saw child pornography on the father’s phone or that he made any admissions relating to alleged child pornography.
Sexual abuse allegations involving the child
The mother alleges in her affidavit material that on 25 February 2015 the child made a “disclosure”. The child had been in the care of the father from 22 February 2015 and returned to the mother on 25 February 2015.
The relevant parts of her affidavit are as follows:
245. After we returned home that evening I was bathing the child when she said to me that “My nonni’s sore put cream on”.
246. Nonni is the word that the child used at the time for her vagina.
247. Nooni is the family word that the girls and I use for vagina.
…
251. I laid the child on her towel to put cream on her.
252. The child said to me “mummy my noni is really sore”.
253. That is when I noticed yellow thick discharge, her vagina was open and really, really red.
254. Before this occasion I have never witnessed the child’s vagina to be open as much as it was on this night.
255. I then tried to clean the discharge with baby wipes and put cream on her.
256. I said words to the effect of “did somebody do something there”.
257. The child looked away.
258. The child then said “daddy put his finger there” and pointed to her vagina.
259. My mother was next to me at the time.
260. I believe that my mother heard what the child said.
261. I remember looking at my mother in shock and my mother looked at me.
…
268. I remember I was so shocked.
269. I remember thinking of some times during my relationship with [Mr Connors] that I found pictures of children on his phone.At paragraph 495 of the mother’s affidavit she says - “[The child] has disclosed that [Mr Connors] has put his fingers in her vagina”. The assertion that the father put his fingers in her vagina is not corroborated by the exchange particularised above.
The maternal grandmother was not called as a witness. She was available but the mother stated in oral evidence that the maternal grandmother was too frightened of the father to give evidence. In her affidavit the mother says her solicitors contacted her mother and that her mother said certain things to them about why she did not want to give evidence. The mother also deposed that if she forced her mother to come to court she feared her mother would never speak to her again. The explanation she gave to Ms P on 19 July 2016 at 9.09am in a Facebook communication makes no mention of her mother being fearful or that she feared her mother would never speak to her again if she forced her to come to court, saying only:
… But mum won’t stand up in court she doesn’t want to know anything about the case
I do not accept the mother’s evidence that the maternal grandmother was too frightened to give evidence. I infer that had the maternal grandmother been called, her evidence would not have assisted the mother’s case.[12]
[12] Jones v Dunkel (1959) 101 CLR 298
The mother made a complaint to police on 26 February 2015 at 9.45am. The Queensland Police records include the following:
The victim’s mother stated that due to arrangements between her and her ex-partner the suspect their daughter has a visitation agreement which requires the victim’s mother to swap the victim at the [Suburb S] Police Station car park. This occurred on Sunday 22nd February at 15:30 hrs. The victim’s mother stated that she picked the victim up on Wednesday 25th February at 14:45 hrs from school. The victim’s mother and the victim went home and at approximately 19:30 hrs on the 25th February the victim was having a bath and stated to the victim’s mother that her noony was sore and she wanted cream on it. The victim’s mother said to the victim “wait till you finish your bath then I’ll put some cream on it then”. After the bath the victim’s mother laid her on a towel and the victim stated “Mummy my noony is really sore”. The victim’s mother stated “what happened darling, did somebody do something there?”. The victim replied “Daddy put his finger there” and pointed to her vagina. The victim’s mother had stated that she saw the victim’s vagina was slightly opened. No other conversation regarding this occurred. The victim’s mother has attended the Police station at [Suburb S] to report this matter. … No witnesses nominated.
It is of significance that the mother does not disclose that her mother was allegedly present when the statement by the child was made.
The mother informed police that the child suffered from global development delay and explained the disorder as the child having the cognitive ability of a three year old.
On 27 February 2015 the child was interviewed initially by two male police officers. A female police officer was then asked to assist in the interview and replaced one of the male officers. The child was interviewed for about twenty-eight minutes during which nothing of any significance was said. I viewed about half of that video recording as requested by the parties and observed the child clearly answering some general questions asked of her about school and friends. During much of her interview with police she coloured in and was unresponsive.
The police outcome is noted as follows:
[The child] failed to disclose information provided by her mother the third person, [the child] did not sufficiently disclose any abuse or sexual harm to her by the suspect and as such there is no evidence to substantiate the claims made by the mother/informant.
In what appears to be a mandatory notification by the child’s school to the Department on 28 February 2015 it is reported that the mother informed the child’s classroom teacher that she developed suspicions of sexual assault by the child’s father when she bathed the child following changeover back to her care on Wednesday, 25 February 2015. The mother reported that the child complained that she was hurting and that the “area did not look right”. She reported that she took the child to her general practitioner who referred her to the T Hospital and that the medical examination had returned an ‘inconclusive result’.
The mother deposes in her affidavit that the T Hospital referred her to the U Hospital where she had the child examined on 28 February 2015.
Unhelpfully, only a disc of the material produced from the U Hospital was referred to as being included in exhibit 3 with a notation that ‘no leave was granted to copy’. This was not brought to my attention during the trial and no leave was sought. No mention of the records were made in submissions. As I assumed that only relevant material would be included in the tender bundle I viewed the disc. Those records reveal the following inter alia:
… on Wednesday afternoon (24/2/15), after the child had been staying with her father for a few days. … [Ms Prichard] noted at that time that it was very red around her vulva and vagina. She was also concerned that it looked like the vagina introitus was more open than usual. [Ms Prichard] then asked [the child] if anyone had put anything on her “nonni” ([the child’s] word for vagina). [Ms Prichard] reports that the child told her that “daddy had put his fingers there”. …
[Ms Prichard] reports that when the child has come home from her father’s house the last couple of weeks, she has noticed some redness around the child’s vulval vaginal area. [Ms Prichard] had been using Canesten cream the last couple of weeks to put onto this red area. [Ms Prichard] reports that she usually supervises the child wiping after she has been to the toilet, as she often needs to remind her to wipe from front to back. [Ms Prichard] is not sure whether her father does the same. She has told the child’s father to ensure that he supervises her wiping and has told him to put cream on the red areas. … [Ms Prichard] reports that without reminders, the child can have problems with hygiene.
On review today, the child is still complaining of being sore in the vulval vaginal area. [Ms Prichard] reports that she noticed some white stringy discharge from the vagina yesterday. … [Ms Prichard] has not taken the child to see the GP regarding the soreness around her vagina … [Ms Prichard] had got the Canesten cream from the pharmacy over the counter.
… [the child] has had some daytime enuresis, although this seems to have been better over the last few months. The child has nocturnal enuresis and wears nappies, both at her mothers and fathers during the night-time. … She can have problems with disturbed sleep, particularly when she comes back from her fathers and she can wake up screaming and crying. …
… [Ms Prichard] reports that the relationship broke down when she found child pornographic material on the child’s father’s phone and confronted him about it, at which point he became violent.
…
Examination
Consent was sought and signed by [Ms Prichard] for colposcopy video recording of the child’s genital examination for peer review purposes. The child presented as alert and bright and was cooperative with the examination. … In general, physical examination was within normal limits. Genital examination revealed some mild redness around the urethral opening, but otherwise it was a normal examination. There was no discharge noted, so no swabs were taken.
Impression
It sounds like [the child] has had some non-specific vulval vaginitis, but has an otherwise normal genital examination. It has been discussed with [Ms Prichard] that [the child] does have a normal genital examination and we are not able to say from the examination, whether or not any sexual abuse has occurred.
Plan
… A discussion was had with [Ms Prichard] around general hygiene advice, ensuring that [the child] is wiping from front to back and minimising detergents and bubble baths, which can cause inflammation in the vaginal area. If [Ms Prichard] is noting that the vulval vaginal area is becoming red and sore, we have advised some simple measures including salt baths, minimal use of detergents and possibly to try a barrier zinc-based cream. We have discussed with [Ms Prichard], …, that the genital examination is normal and therefore does not add anything further to [Ms Prichard]’s concerns.
(errors in original) (emphasis added)
The father deposes in his affidavit that the child had always suffered from bad thrush as a child, and that the mother and he always communicated about this after changeovers and ensured that this issue was addressed by bathing the child regularly and using canesten cream. The father’s evidence is consistent with the information provided by the mother to the U Hospital.
The mother agrees with the father, in her affidavit, that the child had “a thrush problem”. This is corroborated to an extent by the text message exchange between the mother and father on 11 December 2014:
M: Just a question why does the child have a really red vagina. She has thrush really bad. She was fine on Sunday.
F: There was one night she did not wash, you had notice now well I got no idea [Ms Prichard]
M: I only got her back yesterday. Do you have thrush cream, Coz it’s pretty bad she didn’t have that on Sunday coz she always tells me when her nonnie hurts
F: the child had not complained at no time about being sore
F: Going to get some then just in case
M: OK well she is really red and has a creamy color down there. It’s called canastin cream and you get it at the back counter. Make sure you put it on after her bath coz she sometime doesn’t wash it properly
During cross examination the father agreed that he had applied Canesten cream to the child after separation and that he did have the cream but denied having any on 25 February 2015 and said he had no need to apply it at that time as the child had not complained of having a sore vagina.
Curiously, the following questions were put to the father during cross examination:
I suggest to you that you did touch the child in a manner where you put your fingers into her vagina.
F: No
And it was not for the purpose of applying Canesten for her thrush, it was in the context of sexual gratification.
F: No
The questions were not consistent with the mother’s evidence of what the child had allegedly said to her.[13] There was no mention by the child of the father having put his fingers into her vagina. The mother’s evidence of what the child said and gestured were at least consistent with the father applying cream as he acknowledged he had done in the past and as the mother had asked him to do in the past.
[13] Although the mother makes this assertion in paragraph 495 of her affidavit unsupported by any evidence
There is no evidence of any text message from the mother to the father about the mother’s observations on 25 February 2015 until 1 March 2015 when there are a series of text message exchanges as follows:
M: Don’t bother about going to the police station I’m not handing the child over. I know what you did. And the child doesn’t have her own bed. She shouldn’t be sleeping in your bed. She will be staying with me I’m getting a custody order. Don’t go to the school either coz they won’t hand her over [V] knows what happened to the child
F: Sorry but I do have a bed for her and will see you up there at 4:30 ok
…
M: … the child told me and mum what you did to her. There is no way I’m handing her over to you. You make me sick. It was bad enough you taking photos and having child pornography photos on your phone you have to take it one step further and touch my daughter fuck off you sick cunt
F: What the fuck are you on about ans pls talk to me.
F: [Ms Prichard] what the fuck
M: You know exactly what I’m talking about
F: Talk to me
F: I would never ever do that why the fuck are you doing this [Ms Prichard]
…
M: So the child is lying is she
F: You can’t do this [Ms Prichard] as if I would do what you think to my daughter Pls talk to me this is wrong
[Ms Prichard] don’t know what you been talking about but yes its wrong
M: Was it wrong when you touched [Ms W] was it wrong when you touched [O] was it wrong you took photos of [K’s] bum and you touching her. Don’t deny all that you have done
F: As if I would do that to our girls. Never ever my [B] see you up there 4:30 ok if you don’t talk to me
You can’t do this [Ms Prichard]. WHY?
The reference to ‘Ms W’ is to the nineteen year old daughter of a friend of the mother. No evidence was called from Ms W nor any explanation provided as to why she was not subpoenaed if she were a reluctant witness.
There are further relevant text messages after that date as follows:
03.03.15
F: … What ever you think I have done I would never hurt our girls [Ms Prichard]. You wanted me hurt you have done it
M: No you have touched both my girls you’re the sick twisted prick
F: [Ms Prichard] I have and would never do that
…
06.03.15
M: You know exactly what you have done it was bad enough finding those photos on you phone then you had to take it one step further. You need serious help. Go to the cops if you want [Suburb S] police already have a statement and know what you did. And I can get proof that you have done it before. Or have you forgotten how much you have hurt [K] and [Ms W] they are scared for life.
…
09.03.15
…
M: You will have to wait till we go to court coz all you will be getting is supervised access. I am protecting my children you have hurt them the child told me of the game you play.
…
F: I have never touched or done anything wrong to the child how you can do this …
…
M: … Just leave me and my girls alone you have done enough to them especially [K] she is strong enough to talk about what you did to her. Just keep denying it it won’t get you any where
F: Just stop [Ms Prichard]
M: … So you either agree for me to have full custody or it goes further and truth of who you are will come out.
…
27.03.15
M: Can you stop messaging me I don’t’ want to hear from you ever again. Forget about [K] she doesn’t ever want to talk to you again.
…
05.04.15
M: … don’t ring me ever again … she doesn’t need a sick twisted human being like you in her life you’re a pedophile and you will be punished for what you have done. Go away stop ringing me you are breaching the order once again
The mother contacted the Child Support Agency on 6 March 2015 (I note that this was after she had been told by police that the allegation made by her had been assessed as unsubstantiated) to advise that the child was in her care 100 per cent of the time and the change in care arrangements was backdated to 25 February 2015.
In the integrated progress notes produced by X Aboriginal Corporation for Community Health (the mother is not Aboriginal) dated 24 March 2015 the mother told Dr Y that the child told her that the father had touched her ‘down below’ and also about ‘naked play’ and that K had disclosed information to her and her parents and will be making a statement to police that day. The mother did not give any evidence about ‘naked play’ in these proceedings.
Despite the extraordinary allegations made by the mother in the text messages set out above, the father’s time with the child recommenced on 9 April 2015 with the mother’s consent. It was unsupervised and appears that initially the father had the child each weekend and then reverted to Sunday to Wednesday in each week but included a period after school Wednesday rather than just a drop to school Wednesday morning. This significant time continued until late May 2015.
The text message exchanges during the period 9 April 2015 and 27 May 2015 are conciliatory and include the mother asking the father to have the child at times other than scheduled times and expressing her sadness that K does not want to spend time with the father.
Quite inconsistent with her affidavit evidence, the text message exchanges between 9 April 2015 and 27 May 2015 and the mother’s actions after separation, the mother stated during cross-examination that on 10 December 2013, she believed without doubt that the father was a paedophile when she found the alleged child pornography on his phone.
In her Facebook communication with Ms P on 6 July 2015 the mother states:
I wanted to apologize for the way I reacted [Mr Connors] put me under a lot of pressure saying things and doing things. I left [Mr Connors] 2 years ago coz I discovered something quite disgusting. [Mr Connors] has touched both my girls. …
…
I am not stopping until he has been punished for what he has done.
…
… [the child] told me that he put his fingers inside her and I hit the roof.
(errors in original)
When challenged about her now stated belief as at 10 December 2013 the mother claimed to have been pressured into permitting the children to spend time with the father both before 25 February 2015 and after. She claimed that the father had threatened “to make her disappear” and that he “would keep both girls”. These particulars of the alleged threats are not contained in her affidavit material.
The mother says in her affidavit:
504. I believe that I have acted protectively for the children by initially ceasing time between them and [Mr Connors] when the disclosure was made by [the child] and continued to protect them (save for a period which I have explained above in this affidavit after [Mr Connors] had threatened me into allowing [the child] to return to spend time with him).
Her earlier evidence on this issue is as follows:
287. I recall that [Mr Connors] was harassing me to spend time with the child.
288. I recall that I did allow the child to go back to visit [Mr Connors] as (sic) some time after the disclosures because I felt pressured by him.
289. I also could not get legal advice about what I could do.
290. I remember also a mediator telling me words to the effect that [Mr Connors] “can get custody of her 12 year old”.
291. I remember [Mr Connors] threatening me that he “would get an Order taking the child away from me”.
Exhibit 3 includes a statement to police dated 11 August 2015. It appears to be signed by the mother and witnessed by a police officer but the mother asserts her signature is forged. The statement includes an assertion that after the mother made the allegations in relation to the child the father only saw the child once.
During cross-examination the mother initially maintained that the child had only seen the father once after what the mother refers to as her ‘disclosure’. She was forced to admit (by reference to her text message communication with the father) that the child had in fact spent extensive time with the father on numerous occasions subsequent to 25 February 2015 including overnights.
The course of text message communication is interesting for a number of reasons quite apart from the number of times the child spent unsupervised time with the father. The communication demonstrates a casual familiarity between the parties indicative of cordial if not friendly relationship. They are certainly inconsistent with what the mother now tells this Court i.e. she was convinced he was a paedophile as at 13 December 2013 and what she tells Ms P that she left the father because he “has touched both my girls”.
The reference by the mother to having been forced into agreeing to the father spending time with the girls after separation is also inconsistent with the text message exchange relating to the parenting plan. The text messages make it clear the mother pestered the father to sign the parenting plan so that he could spend time with the child in accordance with its provisions.
In an unsigned and undated statement contained in the Queensland Police Service records in exhibit 3 (but by reference to its content was provided after 5 August 2015) the following statement is attributed to the mother - “It’s not that I don’t want him to have contact with his daughter”. That statement is certainly consistent with the mother’s actions after separation and her text messages to the father at various times.
The mother says in her affidavit that since 28 May 2016, (when supervised time with the father commenced), the child experiences nightmares after the visits and wakes up screaming in the middle of the night saying “no daddy no”. She also states that while the child wets the bed during times she does not see the father she has noticed that she wets the bed more frequently after seeing her father. While reference to the nightmares appears elsewhere in the evidence the words attributed to the child do not. In her Facebook communication with Ms P on 10 September 2015 the mother gives yet another version of what the child allegedly said as follows:
She has her good days and she has her bad days. She has a lot of night terrors about [Mr Connors]. She keeps saying daddy is hurting me stop daddy from hurting me. …
Not only do the words attributed to the child not appear in the mother’s evidence, her statements are alleged to have occurred at a time when the father had not had any contact with the child since 27 May 2015. And although the mother mentions the disturbed sleep to the U Hospital, she makes no allegation that the child said anything as alleged in her affidavit or as alleged to Ms P. Further, while telling the child’s paediatrician, Dr Z, in March 2016 about nightmares she makes no mention of the child saying anything at the time.
There is no medical evidence before me relating to the child’s enuresis but it seems to have been an issue for some time both at school and at home. The mother informs the U Hospital of this fact but says the child’s daytime enuresis has been better ‘over the past few months’ although the child was still wearing a nappy to bed.
Further examples of the mother’s inconsistent communication with the father are as follows:
31.10.14
M: Do you want the child to night?
09.01.15
…
M: the child has been asking for you
…
M: Do you want the child today
10.01.15
M: the child wants to go to your place she misses you
…
14.01.15
M: You the fuckin dog that involves my parents do not ring them or talk to them ever again you fuckin asshole. Leave them alone
…
17.01.15
…
M: … [reference to the child] are you having her for a week
…
15.06.15
F: Soo here you go again STOP with these accusations she is my daughter and now you got your ex back your doing this again. I want to talk to the child.
…
M: This is harassment you need to stop talking to me go away. FUCK OFF!!!
29.06.15
F: Can I talk to my daughter
M: No
F: Why are you doing this you are so unfair, …
M: Unfair do you know what’s unfair you touching my kids that’s unfair!!! So fuck off and die you pedophile!
F: Snap out of you and your allegations. As if I would touch my girls/girl they way you think. I want my daughter
M: Keep denying it you loser the truth will come out eventually and I hope you go to jail
F: Stealing a child of her life for your satisfaction that’s not fair but you think its ok to do so. Imagine if it was done to YOU!!
I want my daughter
M: I’m protecting my daughter from a scum bag who is sick
(errors in original)
On 6, 7 and 10 January 2016 the mother attempted to arrange telephone communication between the father and the child.
The child’s behaviour at school
The notification from the child’s then school, Suburb S State School, to the Department on 2 March 2015 as a result of the mother suggesting on 28 February 2015 that she had concerns the child was being sexually abused by the father includes the following statement:
At the present time, Suburb S State College has no specific evidence or suspicion in regards to this report
In June 2015 it is apparent that the school made a notification to the Department about their concerns of possible sexual abuse of the child. At the beginning of term one the behaviours described include frequent pant wetting, non-compliant behaviours, rolling on the floor, refusal to follow school and class routines, hiding during transition times, taking her clothes off during class time and lunch time, bringing multiple sets of clothes to school and sneaking out to change and put on more clothes, showing her underwear to others, sexualised behaviours including touching/pointing at penises, kissing other students, walking into male toilets. The notification refers to the child experiencing several changes in residence and telling her teacher that:
… she lived with her mother, grandmother, grandfather, her mother’s new boyfriend and her mother’s new boyfriends at mummy’s house. At Daddy’s house there was Daddy and another big man. (Feb 16th)
During week six of term one in 2015 after the mother informed the school that the child was not spending time with her father the child displayed a different behaviour set which was an improvement on the earlier behaviours. She appeared to be happy and applying herself to work tasks. She was no longer removing her clothing.
By late May and early June 2015 the child was again exhibiting behaviours that caused concern to the school and in particular she was unbuttoning her clothing during the day and showing people her stomach and pant wetting. She was wearing multiple layers of clothing and constantly wanting to change her clothing and changing her shoes (high heels). She had difficulty separating from her mother or ran away from her mother in the afternoon. The school also reported that K was at risk of significant harm.
Evidence from Ms AA
Ms AA is a psychologist. Ms AA has seen the child on seven occasions between 23 May 2016 and 31 August 2016. She carried out a number of tests and also engaged in play therapy. In relation to the sexual abuse allegations Ms AA says:
I have engaged in play therapy with [the child] in session. Through this doll play, and through all my sessions with the child, I have not observed any behaviour that would constitute an indicator of sexual abuse, or any other form of abuse and/or trauma.
Evidence from Mr R
Mr R is a consultant family therapist, clinical and forensic psychologist who was engaged by the Independent Children’s Lawyer to provide a family report. For the purposes of the report Mr R observed the child with the father on 1 March 2016 and reports the following:
56. The child clearly was comfortable with her Father; and was cuddling him, and wanting to remain interacting with him. It became difficult to interrupt the interaction; and particularly since the Mother was offering encouragement to the child. …
57. The child reported favourably regarding her School and named her Primary School Teacher as “[Ms BB]” and, “who is nice because she plays with us sometimes.” Further, the child nominated her “Three (3) best friends at School” and offered details of the “fun things we play together.”
58. The child offered age-appropriate although unremarkable preferences during the Favourites game. Her response during the Three Wishes game were somewhat remarkable and as follows “First to have high heeled black shoes; and then that Dad got me”. This last comment was clarified by the child as follows “that Dad sees me; because I miss him”. Her last wish was “more hugging my best friend at School”.
59. When made the Princess of her own Island and asked to nominate preferred cohabitants, the child stated “[CC] and [DD] and [EE]” (reportedly “friends at School”) and also [Mr Connors] who I sometimes call Dad. And then my Mum, and my sister, and [Mr D]”.
60. The child considered herself as a “mostly happy” child and explained that she was “Only sad if there is a growling tiger; nothing else”.
61. Of note, some difficulty was experienced in transitioning from one-on-one interview with the child, in order to speak with her Father. [The child] specifically expressed a desire to want to spend more time with her Father. She proactively extracted a promise by the writer to talk to her Daddy about “spending more time” with her.
62. In the writer’s opinion, the child presented as a softy spoken, somewhat shy, though deliberate child who may experience some difficulty with cognitive functioning; although not in an acute or extreme sense.
63. However, in the writer’s opinion, [the child] experienced little difficulty with expressing a real intent to spend further time with her Father on the day of interviews, and to spend increased time with him in the future.
…
176. It would appear that [the child] heard her Father arrive, and proactively came out of the adjacent room to meet with him. What the writer observed in terms of Father-child interactions was clearly mutually affectionate; and essentially child-driven.
…
184. In the writer’s opinion, no interview or assessment outcomes raised any specific concerns regarding risk or capacity in terms of [Mr Connors’s] parenting, however, did raise issues and concerns in respect of the Mother’s capacity for stable and child-focused parenting.
185. Further, the writer envisages no protocol of contact, at least based on risk; to support supervised contact arrangements. However, the writer accepts that given the nature of allegations made, a period of supervised arrangements may be necessary for this separated family system to stabilise; and to enable reasonable contact for [the child].
(emphasis added)
At the interviews for the preparation of the family report the father says that the mother stood smiling as she watched the encounter between him and the child. The mother does not deny this.
Father’s supervised time with the child
Up to the date of trial the father has spent time with the child under supervision at the Contact Centre on the following dates:
a)28 May 2016;
b)11 June 2016;
c)25 June 2016;
d)9 July 2016;
e)6 August 2016;
f)20 August 2016;
g)3 September 2016;
h)17 September 2016;
i)1 October 2016; and
j)15 October 2016.
The supervisor has maintained detailed records which persuade me that the child adores her father. She runs to his arms at the commencement of the time and readily engages with him throughout the time they spend together. This is consistent with Mr R’s observations. The father has at all times acted entirely appropriately with the child and demonstrates an ability to provide for her physical and emotional needs. On a couple of occasions he demonstrated some frustration with the limited time he was able to spend with the child but this was not a significant issue. I particularly note the description of the child displaying affection to her father which is in contrast to the mother’s evidence that because of the child’s alleged ‘sensory’ problem she does not like to be cuddled. The evidence is also at complete odds with the mother’s evidence of the child being resistant to seeing her father.
The mother maintained that she had increasing difficulty getting the child to attend the Contact Centre to see the father. She said that she video recorded the child demonstrating her resistance to seeing the father about two weeks prior to trial. That video was informative, but not for the reason the mother might suppose. What it demonstrates is the mother repeatedly saying “I know you don’t want to go to see your dad tomorrow”. Not once does the child say any such thing. Indeed she is distinctly uncomfortable about the mother’s repeated statements and recording of her. It also demonstrates the mother’s capacity to attempt to force the child to say something derogatory about the father. She says to the child - “I know you don’t want to see your dad. Why? You can tell me. Use your words. Why don’t you want to see your daddy?”.
Conclusions about sexual abuse allegations involving the child
The mother has failed to prove to the requisite standard that the father sexually abused the child.
The mother’s evidence is inconsistent and unreliable. I have formed a view of the mother, generally, that she is a practised liar. I can place no weight on her evidence. On the one hand she contends that she formed a view that the father was a paedophile on 10 December 2013 but then pestered him to spend extensive time with both children. Even after her allegations that the child had made so called ‘disclosures’ of sexual abuse and her subsequent abusive text messages to him she agreed to the father spending extensive time with the child and even requested he have extra time.
I accept the father’s evidence that the mother had made allegations of sexual impropriety involving children against K’s father, Mr N, because “he deserved it”. There is no evidence that Mr N engaged in any such behaviour.
The medical evidence supports the conclusion that the child experienced a non-specific vaginal vaginitis in late February 2015. The mother was provided with advice on proper hygiene and bathing methods to minimise its recurrence. It adds no weight to the mother’s contention of sexual abuse.
The child’s behaviour of itself does not corroborate her being sexually abused by the father. It is clear that there was a lot of turmoil in her living circumstances at the time.
The child’s interaction with the father indicates a very close and loving relationship although that of itself would not rule out sexual abuse.
Of course there is a possibility (and I can state it no higher than that) that the mother did believe the father was a paedophile but nevertheless put her children at risk.
Sexual abuse allegations involving K
The mother’s case is that K was a victim of horrific sexual abuse over a sustained period while the parties lived together and of course the mother’s evidence during the hearing was that she had formed the view that the father was a paedophile on 10 December 2013.
Inconsistent with that, the mother contends that at the time she entered into a parenting agreement with the father in September 2014 K was agreeable to spending time with the father and in the material produced from the U Hospital the mother is reported as saying on 28 February 2015 that she is unsure why K has refused to spend time with the father since Christmas 2014.
In October 2014 and following there are exchanges between the parties about K not spending time with the father that would indicate other reasons for a falling out between the father and K and the mother’s support for K spending time with the father. While I quote below quite an extensive text message exchange it is important to see the context during the relevant period:
21.10.14
M: … ask [K] if she wants to stay at yours I’m not sure what she wants to do
30.10.14
F: Yes stopping [K] from visiting
M: No I have given her a choice she deserves to choose what she wants not what we want
F: so is that it you get what you want then turn against me typical don’t make [K] hate me ok not my fault you wanted drug dealers no. Gave it to you can at least stick to your word. Thanks a lot
04.11.14
M: Hello can you please remind [K] to take her phone too school and to walk to mums
…
M: what the fuck do you think you are telling my daughter to lie to me. You just blow it. [K] is going there no more. And I know you are bribing here with the books. You really are fucked in the head
…
06.11.14
M: [K] is crying now coz you won’t let her have the books I hope your happy she is starting to hate you
…
07.11.14
M: Ok I will I spoke to [K] and she said she doesn’t want to go to your place. I will ask her again tomorrow coz she might change her mind
…
14.11.14
M: Girls are ready
…
19.11.14
M: Hi are you getting [K] a formal dress she said you are
…
20.11.14
M: Hello I was wondering if you could buy [K] a dress for the graduation dance. And on Wednesday 3rd Dec at 9:00 the school will be having a presentation for the year 6 ers I though you might like to come if you can
…
22.11.14
M: I just asked [K] and she said she doesn’t want to talk to you at the moment coz of what you said to her last night. She was very upset last night.
…
23.11.14
M: When [K] is ready to talk to you she will until then you will need to wait you have hurt her. You can’t keep pushing it.
…
M: So you buying her her formal gear …
…
24.11.14
M: [K] is waiting for you to call
…
26.11.14
A: I’m not coming over tonight ok. [K]
…
27.11.14
M: It has nothing to do with me it’s between you and her. You have hurt her feelings. …
…
28.11.14
M: By the way don’t go to my mums shop and see her she doesn’t want to see or talk to you. She hates you for what you have done.
F: Your just pissd off you never got be locked up so now your trying to everything against me thanks a lot but what do I expect!! As for [K] it’s a shame yeah im hurt but that’s what she wants nothing i can do
…
F: This aint about you its what I have done to [K] ok so don’t get upset with me and make it worse. I told you im hurt for what ive done now [K] out of me life yay great love that girl as my daughter and yeah hurts deep that that ive hurt her. …
…
F: … [K] hates me.
…
02.12.14
F: All I can say is yeah I said something wrong to her but with you and new bf behind it does not help I cant force her to love me but that’s the way [K] feels guess was goin to happen that’s that
…
04.12.14
F: Plus goin to write [K] a letter when I get home if have time! I don’t want to loose her too as I have already lost you
…
M: A letter will be nice. … You haven’t lost me coz we have had a beautiful girl together. I will always be in your life. I want to be friends with you coz we need to coz of the girls
…
M: You can’t hate yourself you need to like yourself again to be happy
We will talk soon …
F: Yeah how after all ive done to my family [Ms Prichard]
M: You realise what you did wrong and work on different ways to better it.
…
F: All I can say is THANK YOU!! I hope I did well and broke tge ice between my daughter and myself
M: It’s ok I think you did
05.12.14
F: So your sayin if I wrote a letter thing could have been different??
M: when I read that letter I felt like you where writing it to me, I know it hard for you to speak how you feel as writing it down you can say what you feel etc …
…
06.12.14
…
M: All you can do is just hung in there with [K] she just needs time to realize what she is losing. She is stubborn. I know it hurts you and I’m sorry that it does. She does love you and the ones we love the most we hurt!
…
… she is still very angry at you I cant’ change what you did
…
F: Can I ask you about the word Slander look it up plz. … [K] has been corrupted [Ms Prichard] …
07.12.14
…
M: … I’m going to ask you one last time what time do you want me to drop the child off?
…
08.12.14
F: Can you tell me why you leave my girls with him alone and when your gone [K] and him sneak of to her room??
How dare you! Know wonder why she is corrupted. And you don’t care!!
M: What the fuck are you talking about
…
F: I kno I will never see [K] again and yeah it hurts does not help you being behind it …
…
09.12.14
M: you really think I’m happy [K] is doing it to me as well its not just you!
…
M: Most of the time she says she hates me it’s not all rosy here she can get quite nasty towards me if anyone loves me and respects me it’s [the child] at least she kind to me
M: Yes I do have two other children that don’t want to see or talk to me I know exactly how you feel. …
F: … I kno you behind it
…
12.12.14
M: Ok, like I said it’s up to [K] not me just do baby steps ok other wise [K] will feel like she is being pushed
13.12.14
M: Hi [the child] wants to go to your house for the night she just asked me she said she misses you
…
M: Can you have the girls tonight …
…
14.12.14
F: So [K] comin …
M: Yes she is …
…
M: She wanted to stay the night when she said that I told her about [Ms FF]
14.12.14
F: … Does [K] want to stay
M: … I think she does. This is how I like it!!!
…
15.12.14
…
M: I got the girls report cards today I just thought I’d let you know
…
17.12.14
M: … Are you having [the child] Xmas day? If you are can you have her from Sunday till Thursday arvo
…
M: … [K] is also comin over
…
18.12.14
…
M: Don’t bother getting anything for [K] she is banned from Xmas no present … she turned and called me a whore in front of everyone. She has keep going so I smacked her and told her to go to her room she refused so I dragged her and smacked her again …
M: She has even made me bleed
…
19.12.14
…
M: [K] is being such a bitch today to [the child] [K] is in one of her moods again
…
M: Look if you want them for the night your welcome too I’m trying my hardest not to say anything to [K] she is starting on me now, [the child] been really good its just [K] …
…
27.12.14
…
M: Hi did you want to have the girls new years eve?
…
28.12.14
…
M: … [K] didn’t want to go this week it’s not the last time you going to see her again. It has nothing to do with me I haven’t done or said anything to her except she needs to explain why she didn’t want to go
…
30.01.15
…
M: [reference to [K] I have spoken to her [Mr Connors] and she is still really hurt by what you said and did. I can’t change how she feels. I have tried and tried to no avail.
…
05.02.15
…
F: Does [K] hate me I just don’t understand wtf is goin on?
…
06.02.15
M: As far as [K] you only have your self to blame. There is nothing I can say or do so you just have to leave it
F: after all these yrs and time with her she turned against me still don’t know why and I know it you with the way you talkd about me but year prob deserved it and yes I’ll have to give up on her then that’s how she want to be …
(errors in original)
I note that there is a reference to the father writing a letter of apology to K. No letter was produced by the mother and no explanation provided for it not being produced if there were such a letter.
The mother says in her affidavit that K made her “disclosure” in March 2015 and leading up to it she deposes as follows:
209. I recall that every time [K] would return from [Mr Connors’] after her visits I would have to bath her as she would return with thrush.
201. I recall that when she was with me the thrush would clear up but then after visiting [Mr Connors] it would come back and she would be really red down there.
211. I thought at the time that it was because [Mr Connors] was not encouraging [K] to clean properly.
212. [K’s] behaviour then changed.
…
217. Then in about December 2014 [K] said to me “I don’t want to go anymore” meaning she did not want to go to [Mr Connors] anymore.
…
219. [K] began saying things to me that “daddy [Mr Connors] does things”.
…
232. I remember that leading up to Boxing Day [K] would say to me that “I will go cause [sic] I want to protect my sister”.
233. I recall on 26 December 2014 she refused to go to [Mr Connors] and I then decided to contact him and told him that [K] didn’t want to go.
234. I didn’t want to force [K] to go if she did not want to.
235. This is the last time [K] saw [Mr Connors].
The mother first made a complaint to police about allegations concerning K on 25 March 2015. Despite numerous phone calls and cards left by police the mother did not respond to the police until July 2015 and K was first interviewed on 20 July 2015.
Despite being legally represented the mother had apparently not read the transcript of s 93A interviews of K by police on 20 July 2015 and 11 August 2015 nor watched the video recording of those interviews. I find that remarkable. I also note that despite paragraph 90 of the Family Report referring to there being a second police interview the second interview recording was not produced until after the trial commenced. An unfortunate oversight it would seem.
On 15 October 2016 she tells Ms P – “My shrink said for me to heal I need to confront my past”.
Her statements to Ms P in her unguarded moments tell a very different story about her current mental health to that which she portrays in her affidavit. I note that the mother also informed a psychologist, Ms AA, in July 2016, that she has bi-polar.
The fact that there is no evidence from her treating psychiatrist causes me to infer that such evidence would not have assisted her case.
The mother during cross-examination stated that she believed there was a conspiracy within the police force to protect the father. The mother admitted that she had written to Derryn Hinch[19] seeking his assistance but had received no reply.
[19] I take judicial notice of the fact that he is a former media personality noted for his interest in ‘outing’ paedophiles. He has served prison time for being in contempt of court and was notoriously known as ‘the human headline’. He is now a senator in the Federal Parliament.
The mother also denied a history of substantial heroin abuse stating that she had only used heroin “once” when she was fifteen. The records in exhibit 3 conflict with her evidence and show a long and sustained abuse of heroin resulting in her first two children being removed from her care.
The mother also said that she was suing the South Australian Child Welfare Department for “stealing” her daughter, J, from her. She added that a recent Royal Commission supported her stance and that she was going to receive compensation. Again the records in exhibit 3 not only make it clear that the mother was unable to care for J but that she agreed to the baby being taken from her.
Another allegation that seems far-fetched is that Detective Senior Constable MM forged her signature on a statement purportedly signed by the mother on 11 August 2015.
The evidence is troubling as it may indicate an underlying mental illness consistent with what the mother has confided to Ms P and Ms AA. The mother of course denies suffering from any current mental illness apart from depression.
I am particularly concerned about the mother’s relationship with K. She describes physical altercations with her to Ms P and of K referring to her as a “slut, whore and useless piece of shit”. On 21 May 2016 she complains about being abused daily by K.
In her text messages with the father (at a time when their relationship was in a good cycle) she discloses to him her ongoing issues with K including one that indicated that K was still out late in the evening. She tells the father that K has hit her causing her to bleed.
On 27 March 2016 the mother complains to Ms P that K had been engaging in inappropriate behaviour for her age and she found some disgusting text messages between her and her boyfriend.
Mr R opines:
188. In the writer’s opinion, several critical assessment outcomes would strongly argue for the mandated attendance by the Mother upon an experienced mental health practitioner; and particularly in circumstances where she remains the primary parent.
Mother’s living circumstances
The mother says she lives in a three bedroom home and receives family Tax payments A and B and a carer’s allowance and carer’s pension for the child. Her average weekly income is $750. This does not include child support which she says is $45 per month. Her rent is $380 and other outgoings of $212.15. Her total weekly expenditure is $592.15. I note there is no mention of her expenditure on cigarettes although it is uncontentious that she smokes tobacco.
There is no mention of Mr D’s income. Certainly the impression she gives is that Mr D is currently living with her and that they are in a relationship.
The mother states in her affidavit that Mr D moved in with her, K and the child in August 2015 having met him in April 2015. She gives the impression that they have lived together since that time. That is not the case as the Facebook communication between the mother and Ms P makes clear. The relevant messages are as follows:
[on a date between 21 October 2015 and 3 December 2015]
M: … My boyfriend has moved in with me to keep us safe. …
[Ms B]: Boyfriend??
Since when??
M: I have been seeing him for about 6 months now
…
M: … his name is [Mr D], he is 33 and has a little girl who is 5.
…
We met on a dating website called …
[9 January 2016]
[Ms B]: Hey aren’t you and [Mr D] together anymore??
M: No were not, I asked him to leave it was just to much to deal with at the time. And some issues between me and him …
…
M: I don’t think we will work it out. But I will still be friends with him. It just wasn’t meant to be.
…
It only just happened about a week and a half a go …
[Ms B]: … Sorry to hear about you and [Mr D]
I thought you were happy
M: It’s OK. Year we were but I wanted more emotionally and he could give me that. You know falling in love with someone, the feelings part it’s hard to explain. Coz he has been hurt bad befreo he can’t show the same feelings/emotions etc
[Ms B]: That suxs
M: Yeah it does 10 months we were sort of together I really don’t know what to call it
[12 January 2016]
[Ms B]: Is there anyway you can work things out with [Mr D]?
M: I’m not sure I was suppose to see him yesterday but he had a few dramas with his daughter’s mum
[Ms B]: [K] was saying his daughter is a bit of a handful ??
M: More than a handful … she has high grade autism, sensory perception disorder, she can’t function like most kids can
[Ms B]: … was she living with you too? When her dad had her.
M: Yeah she was
[Ms B]: no wonder you had enough
Was that the main reason you split?
M: Part of the reason and if felt like we weren’t even in a relationship
…
M: [K] couldn’t cope with [NN] any more either. Didn’t sleep in the same bed there was no sex or intimacy
…
M: … And them having [K] treat me the way she does doesn’t help either.
[29 March 2016]
M: … I just had to take [Mr D] and his daughter to his X wife’s house. I finally got rid of him.
[19 June 2016]
[Ms B]: you got yourself a new fella?
M: Yeah we have been friends for ages now
[19 July 2016]
[Ms B]: … Are you still seeing [Mr OO] is it?
…
How’s [Mr OO]?
M: Don’t know don’t care he was not what he seemed. I’m happy just being single and besides me and [Mr D] are still talking thank god.
I still have my best friend ([Mr D]) and that’s all that matters now. I’m over the relationship thing
[on a date between 1 August and 1 September 2016]
[Ms B]: So your back with [Mr D]?
M: yeah we are working through everything we just can’t live together yet coz it’s to much having both girls with autism. …
…
[Ms B]: Whats happened with [Mr D]?
M: We talk but I’ve realised it’s never going to be
…
[1 September 2016]
M: … [Mr D] has moved back in and we are working through everything. …
[on a date between 1 September and 10 September 2016]
[Ms B]: … Am I right in reading you got engaged today??
…
M: I asked [Mr D] 2 days ago if he would marry me one day and he said yes
…
I know now not to stop taking my meds [Mr D] is on my back about thaking them which is good
(errors in original)
On 2 October 2016 ‘Ms PP’ from the Contact Centre made the following entry in the records of the Centre:
During contact [the child] said that “mum is getting married today” while she was here at contact. [Mr Connors] lightly said that’s ok. [The child] said “I don’t like him”. [Mr Connors] asked why don’t you like him. The child stated that it was because he “hits her all the time”.
The mother says in her affidavit that the child has formed a relationship with “my partner [Mr D]”. She told Mr R that the child wanted to call Mr D, ‘Dad’. The mother denied that she and Mr D were married. She did not disclose that they were engaged.
As he is not a witness in the mother’s case I have no confidence in the current status of the mother’s relationship, the nature or dynamics of their relationship or his relationship with the child.
Despite my observing that he was not a witness in the mother’s case no application was made for him to give evidence. During the mother’s cross-examination she confirmed that Mr D had been at court the day prior.
I infer that had he given evidence it would not have assisted the mother’s case.
Conclusion in relation to risk in mother’s household
I am of the view that it is more probable that not that the mother’s mental state, exacerbated by her drug abuse, impacts detrimentally on her parenting ability thereby placing the child and K at risk of neglect.
I also consider it more probable than not that the mother’s ability to put in place appropriate boundaries for K is impacted by her mental health and drug abuse. She clearly has a volatile relationship with K and her ability to protect her and put in place appropriate boundaries is impaired.
As I know nothing of Mr D I am concerned about the child’s comment that “he hits her all the time”. It is not clear whether this statement was meant to refer to the child herself or her mother.
In my view there is a risk that the child and K will be exposed to family violence in the mother’s household.
The magnitude of that risk is impossible to assess given the limited evidence available. I am sufficiently concerned about it that I will be requesting the Department to undertake a thorough investigation and assessment as a matter of urgency.
The child’s health and development
The mother has variously described the child as suffering from “global development delay”, “intellectual impairment”, “ADHD” and “autism”.
There is no satisfactory evidence before me that the child currently suffers from any of these conditions. Most of the evidence refers to earlier diagnoses made by unknown persons. Ms AA refers to that very fact in her letter dated 31 August 2016 where she notes that
[The child] has been diagnosed with Intellectual Impairment and Attention Deficit /Hyperactivity Disorder. It is unknown to me when she was diagnosed or who made the diagnosis.
Certain diagnoses seem to be repeated as fact when they may not be. I would worry as to the accuracy of any diagnosis significantly reliant on the mother’s reporting of the child’s presentation or behaviour. I do not regard her as a reliable source of information.
That said, the cognitive testing conducted by Ms AA is said by her to be consistent with previous testing indicating the child meets criteria for an intellectual impairment diagnosis. In her letter dated 31 August 2016 Ms AA emphatically states that she does not support a diagnosis of Autism Spectrum Disorder. Despite this, the Contact Centre notes for 20 August 2016 and 3 September 2016 record the mother stating that the child has autism.
The mother annexes to her affidavit a copy of an unsigned letter dated 17 December 2015 purporting to be from a Dr Z from the X Aboriginal Health Centre the content of which says:
Diagnoses
Intellectual impairment
Sensory sensitivities
Psychological trauma
All above contributing to Severe emotional dysregulation amounting to ADHD
Medication – trial of Ritalin 10mg three times a day.
I have seen the child in my Paediatric clinics in [X] [Suburb S] due to concerns about her learning and behaviour
[The child] was born at 34 weeks and went through a stormy neonatal period. Her development was delayed globally and when she started school she had a cognitive assessment and was verified as intellectually impaired.
She has difficulties with focussing attention and with global cognitive function. She has been diagnosed with Attention deficit hyperactive disorder and is being trialled on Ritalin.
She has been through psychological trauma in the past and I am aware that there will be a court case in the future.
She has been supported by allied health team at [X] for her difficulties with learning and behaviour.
What I find particularly concerning about this letter is that it does not set out any observations made by this doctor to support any of the alleged ‘diagnoses’. The mother tells Ms P in the Facebook communication on 18 October 2016 that she has signed an authority so her lawyer can get all that information from the paediatrician. Her reference to “all that information” related to a concern about the child having allegedly lost twenty kilograms while being on Ritalin.
Also annexed to the mother’s affidavit are a number of pages from a report from Suburb S State College (the child’s former school) from what appears to be 2014. The report notes problems with the child’s speech and language ability suggesting she is behind her peers. It notes that the child has been involved in a weekly speech intervention program. The report notes - “Currently, she is suspected of and awaiting verification under Intellectual Disability”. A separate page headed ‘One School’ purports to verify the child having an intellectual disability as at 26 September 2014. There is no information as to who has made that assessment and on what basis. As part of the same annexure is a copy of an unsigned document on what purports to be U Hospital letterhead dated 21 October 2016 purporting to be a referral for the child to ‘Prof QQ’. The reason for the referral is said to be:
Reason for referral: Child with complex needs going through puberty
Additional history or comments: the child is a child with neuro development trauma, intellectual impairment, Severe emotional dysregulation amounting to ADHD and anxiety. She has significant difficulties with speech and communication. Her pubertal Tanner 2-3 It is a concern that she would find menarche and menstruation quite challenging
Another annexure purporting to be from Dr Z is a list of medications for the child for the period 17 September 2015 to 20 October 2016. The following information is included:
… there is a history of recreational substance use in mum and currently the parents are going through courts for custody. There were allegations that the child had been sexually abused and was seen by child advocacy in [U Hospital]
Exhibit 3 includes an unsigned document purporting to be a ‘Verification form – intellectual disability’ dated 12 September 2014 and purportedly completed by Ms RR a guidance officer at the child’s then school. At least part of the verification for the child having an intellectual disability is based on the mother’s reporting that a paediatrician has made certain diagnoses and the mother’s observations of the child.
Her semester 2 2014 report card includes the following overall comments:
[The child] is a very sociable and active child who is learning how to participate in school routines and activities. She requires additional support within the classroom with most tasks and needs frequent redirection to remain on task as she is very easily distracted. [The child] has made some very pleasing social and emotional gains this year and on most occasions is a helpful and kind peer. It has been pleasing to see [the child] gain more independence and confidence. She has been a valued member of the Prep B classroom.
The child’s progress in all subjects at the end of 2015 at Suburb S State College is noted to be sound or high although she was taught Prep School English and Mathematics with her effort noted as sound, high and very high across her various subjects. Her homework was rarely completed though.
Her report card for semester 1 2016 from her current school, SS State School, indicates sound, high or very high achievement in all her subjects although I note that she has been taught prep year English and Mathematics although she is in grade two. Her effort is variously assessed as sound, high to very high. Her behaviour is said to be high. The general comments include:
[The child] has consistently been a safe, respectful learner. She has demonstrated this by keeping her hands to herself, and is in the right place at the right time. She generally listens to and follows all instructions, and behaves safely at eating and play times. She actively listens to others when talking and shares resources, materials and equipment with others. The child worked to the best of her ability and has a positive attitude to learning.
[The child] has developed many skills this semester … She is working hard to develop her literacy skills, and working well with other students. She is a kind and compassionate student, and a pleasure to teach. …
Unfortunately, other than the school report, I have no evidence from the child’s current school and in particular whether any concerns about her presentation or attendance at school were raised this semester.
In the integrated progress notes from X medical centre contained in exhibit 3 is a copy of an unsigned letter from Dr Z dated 31 July 2014 stating the child had been seen in her paediatric clinic for concerns of development delay, behavioural and learning difficulties. Dr Z opines that the child’s behaviour does not meet the criteria of diagnosing Autistic Spectrum Disorder and her behavioural difficulties are more due to her development delay and being through “dysfunctional family and social circumstances”. The child is referred for assessment. (emphasis added)
Clinical observations are made by a Ms TT in an initial speech pathology assessment on 18 September 2014:
[The child] happily engaged with the clinician in play based assessment tasks. She has a short attention span and was easily distracted by other objects in the room but could be brought back on task. The child demonstrated imaginative play skills, cooking food on a toy stove and feeding a cookie monster and also cooking things for the children.
The integrated progress notes dated 13 March 2015 record:
[Ms Prichard] reports that her 12 year old and 6 year old daughter are stating allegations of sexual assault perpetrated by the 6 year old’s father, [Ms Prichard] reports her daughters have disclosed events to herself and reports they have disclosed more to her parents (currently live with).
… [Ms Prichard] reports [the child] was interviewed by a male police officer and police reported they do not have any female police officers in their unit. [Ms Prichard] reports the child has a global development delay, which can also influence her in speaking to others. …
… Child Safety recommended Bravehearts for [Ms Prichard] and her daughter to receive counselling specific to sexual abuse. …
… [Ms Prichard] reported her 12 year old wants to make a statement, but has stated she will only make a statement to a female officer. …
PLAN
1.[Ms Prichard] to contact Bravehearts today …
On 13 March 2015 it is noted that the mother informs the occupational therapist that she is finding it difficult managing the child’s behaviour with everything that is going on at home.
On 15 May 2015 the clinical observations of the child included the following:
[The child] demonstrated increased engagement with clinicians today. She appeared to respond well with motivation/things she likes …. During longer tasks, she appeared to get distracted at times, but was able to redirect her attention when clear expectations were given …
On 6 July 2015 the mother informs Ms UU that new allegations have surfaced from the mother’s twelve year old daughter’s friend.
On 17 December 2015 it is noted by Dr Z that the mother is not coping. The mother reports that the Strattera has an effect but still the child is quite hyperactive. The doctor responded by trialing the child on Ritalin 10mgs three times a day. The mother is noted to be very concerned that the child could be autistic but she is informed that the child’s symptoms are more consistent with “ADHD, global development delay and psychological trauma.” No factual basis for those possible diagnoses are particularised.
On 3 March 2016 Dr Z notes the mother’s information that the child is having nightmares and is very hyperactive. Accordingly, Dr Z increases the child’s medication to Ritalin LA[20] 20 mgs and Ritalin 10mgs three times a day i.e. 50 mgs per day. This seems an extraordinary dose for such a young child. No record is made of any independent observations made by the doctor or any other information about the child’s presentation other than from the mother. It is noted the mother is again pressing for an assessment for autism.
[20] Long acting
On 28 April 2016 it is noted the mother has been in hospital with a displaced disc in her back.
On 29 April 2016 it is noted that the child has some bedwetting. There is no evidence that any medical assessment was undertaken to determine whether there was any physiological reason for the child’s bedwetting.
On 6 July 2015 the mother tells Ms P in her Facebook message communication that the child suffers from autism and sensory perception disorder.
On 17 September 2015 the mother tells Ms P that she has finally got a diagnosis for the child and on 21 September 2015 tells her that the child suffers from autism and ADHD. She goes on to say that she has already been to Centrelink to get a carers pension and is just waiting on Centrelink to process it. She refers to the child being prescribed ‘strattera’ because she did not want her put on ‘dexi’s’ or Ritalin.
Despite the mother saying to Mr R that the child would not be able to communicate with him he had no difficulty doing so and the child extracted a promise that Mr R would speak to the father about spending more time with her.
Mr R opined that while the child may experience “some difficulty with cognitive functioning” he was not of the view that it was in an “acute or extreme sense”.
The child should undertake a thorough medical and mental examination by a paediatrician on the basis of objective evidence. Class teachers, therapists who have provided occupational therapy and speech therapy, Ms AA, the Contact Centre and the father, should provide information.
The father’s living circumstances
The father lives in a granny flat on his own. His landlord lives in the house and has his two children visit on weekends. The granny flat has two bedrooms and is close to the school the child currently attends. The father works as a tradesman. The father would propose to move to larger accommodation if the child were to live with him primarily but would stay in the same area. He has lived at his current address for over a year.
Conclusions in relation to what parenting order is proper
This has been a very difficult case as there are competing risks and my decision requires a balancing of those risks. The Act assumes that in every case a decision can be made that affords the ‘best interests of the child’ paramountcy. Unfortunately many cases that now come before the courts make that imperative very difficult to achieve. This is one of those cases.
Ultimately I have come to the view that the risk of harm from the father is unacceptable and as such I cannot make an order that the child live with him.
Despite that finding I am of the view that the child will benefit from a continuing relationship with her father. The child appears to have a strong and loving relationship with the father and the father has demonstrated a capacity to care for the child in an entirely appropriate manner while supervised. I am satisfied that any risk to the child can be ameliorated if her time with the father is supervised. If a longer period of supervision can be accommodated it need not be limited to two hours. That may necessitate it occurring at a place other than the Contact Centre but with supervision still arranged by the Contact Centre.
My decision in leaving the child with the mother should not be interpreted as an endorsement of the mother as a safe and appropriate parent for the child or K. Living with the mother will probably expose the child and K to a risk of neglect, exposure to drug use and exposure to family violence. Unfortunately, I have no other option but to leave the child in the care of her mother. The Department of course is not so limited.
The safeguards I intend to put in place while the child remains with her mother are to request the Independent Children’s Lawyer to take all possible steps to ensure that the Department undertakes a full assessment of the mother in light of the information which they did not have when previously involved with the family e.g. her past and current use of drugs, her history of neglect of children and history of placing children at risk. I will order that my reasons be provided as a matter of priority to the Department.
I request that the Department interviews Mr D, the mother’s parents, the teachers at the child’s school and that they arrange a comprehensive assessment of the child’s medical and psychological needs and in particular a review of her current medication and the need for it. I stress that the mother is not a reliable source of information and nothing she says should be taken at face value.
The father may feel somewhat aggrieved by this decision but it has proved impossible to disregard the many sources of complaint made against him. Although this may seem like a decision weighted in favour of ‘where there is smoke there is fire’ the assessment of the magnitude of risk is an inexact science. As explained above the three unrelated complaints of sexual impropriety together with the complaint from O ultimately caused me to assess the risk as unacceptable.
The mother in this case seeks an order for equal shared parental responsibility and expressed a degree of confidence in reaching agreement with the father about major long term issues. I was surprised by that evidence and consider it unlikely that the parties will be able to have meaningful and sensible discussion about such matters. The father seeks an order for sole parental responsibility for the parent with whom the child lives and in my view that is the more sensible course.
As there are reasonable grounds to find that a parent has engaged in family violence the presumption that it is in the best interests of the child that the parents have equal shared parental responsibility does not apply.
For these reasons I make the order set out above.
Miscellaneous matters
The importance of properly funding child protection authorities
What has become a standard response to media attention about children at risk is for governments to order an inquiry. Generally the resulting report joins the shelf with all of the other reports and nothing much changes.
Child protection departments continue to be under-resourced, cannot retain dedicated experienced and qualified staff, and children continue to fall through the cracks as there are too few options for alternative placements of ‘at risk’ children. Too many children remain in households until something ‘really serious’ happens to them. It is perhaps time to look at other options.
One practical measure to assist in the day to day operations of Child Protection Authorities would be to provide all Child Protection Authorities and Police Services with technology that enables them to share relevant information easily. In this context it is extraordinary to note an assessment made by the Department in Queensland on 17 December 2013 that no intervention was necessary partly because:
There is no previous child protection history pertaining to the person’s (sic) listed in the event.
This is a case where the mother has had two other children removed from her care in other States and the father has been the subject of police complaint on three separate occasions in other States for alleged sexual interest in unrelated children.
It was assessed that the mother was acting protectively but as there was no follow up it was unknown to the Department that the mother instigated the child spending extensive unsupervised time with her father from April 2015 until May 2015.
Had the Department had access to the impressive history of the mother’s interaction with Child Protection authorities in three other States they may have taken a notification received on 16 August 2016 more seriously. The notification from an unnamed source provides the information as set out in paragraph 223 herein.
It does not appear that the Department knew of the mother’s history of heroin addiction. Although historical, the account of the mother and her then partner being found in a motel room in a drug induced torpor with a then five week old baby Mr I wrapped in a grubby blanket makes chilling reading. Had the mother’s background been readily accessible to the Department their response may have involved a little more than a mere referral to the Department’s Family and Child Connect program. It is not apparent whether any check at all was made as to K’s and the child’s safety.
I certify that the preceding three-hundred and four (304) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 December 2016.
Associate:
Date: 22 December 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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