Dalziel and Belladonna

FAMILY COURT OF AUSTRALIA

DALZIEL & BELLADONNA

[2009] FamCA 254

FAMILY LAW – CHILDREN – Magellan – allegations of sexual abuse – five year old child – allegations without foundation – no unacceptable risk – change of child’s residence

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1)and (3 (4) and (4A)), 62DA, 65DAA(1) and (2), 69ZX(3), 91B
Evidence Act 1995 (Cth), s 140
Crimes (Family Violence) Act 1987

Hemiro & Sinla [2009] FamCA 181

FATHER:

Mr Dalziel

MOTHER:

Ms Belladonna

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9183

2008

DATE DELIVERED:

7 April, 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BROWN J

HEARING DATE:

16, 17, 18, 19, 20, 23 February, and 2 and 3 March, 2009

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr. D. Sweeney

SOLICITOR FOR THE FATHER:

Matthew Oldham

COUNSEL FOR THE MOTHER:

(to 23 February, 2009)

Mr. D. Brown SC with

Mr. R. Hoult

SOLICITOR FOR THE MOTHER

(to 23 February, 2009)

Ken Smith & Associates

THE MOTHER:

(from 2March, 2009)

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr. N. Eidelson
INDEPENDENT CHILDREN’S LAWYER	Donald S. Lampe

Orders

That all previous parenting orders and injunctions which relate to the child R born … October, 2003 be discharged.
That the father have sole parental responsibility for the child.
That the child live with the father and to give force and effect to this order he collect her from the child minding room of the fifth floor of this registry of the court forthwith.
That the child spend time and communicate with the mother during the remainder of 2009 as follows :
(a)commencing on 26 April, 2009, on each alternate Sunday from 10:00 am. until 5:00 pm.;
(b)commencing on 4 May, 2009,on each alternate Monday (or such other day in that week on which the parties agree) from 4:30 pm. until 7:30 pm.;
(c)if the child would not otherwise spend time with the mother pursuant to these orders on 11 October, 2009, for four hours on … October, 2009 (being the day before the chlid’s birthday) at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;
(d)from 10:00 am. until 5:00 pm. on Boxing Day 2009;
(e)from the week commencing 11 May, 2009, by telephone on two days a week, the days and times to be agreed and, failing agreement, on Tuesday and Friday at 6:00 pm. and to give force and effect to this order :
(i)the father shall facilitate the phone call by the child to the mother;
(ii)each call shall be no longer than fifteen minutes; and
(iii)the father shall be at liberty to listen to the phone call and to terminate it if the mother raises with the child any matter referrable to her being abused (sexually, physically or emotionally) by the father;
(f)at such other times as are agreed.
That subject to any agreement between the parties to the contrary, all face-to-face contact between the mother and the child pursuant to paragraph (4) hereof be supervised by:
(a)a person agreed to by the parties who is prepared to undertake that role; or
(b)failing agreement on such a person, a professional supervisor (save Ms. O)
and the expenses of supervision be borne by the mother.
That the child spend time with the mother :
(a)from 12:00 noon on 5 January, 2010 until 12:00 noon on 7 January, 2010; and
(b)from 12:00 noon on 15 January, 2010 until 12:00 noon on 22 January, 2010.
That commencing in the first school term 2010 the child spend time and communicate with the mother as follows :
(a)during school terms, and commencing on the first weekend of each school term , on each alternate weekend, from the conclusion of school on Friday until the commencement of school the following Monday (or, if Monday is a public holiday, the commencement of school on Tuesday);
(b)during school terms, and commencing on the second Thursday in each school term, from the conclusion of school on Thursday until the commencement of school the following Friday in each alternate week;
(c)for a week in each school term holiday period at times to be agreed and, failing agreement, from 9:00 am. on the first Saturday until 12:00 noon on the second Saturday;
(d)for one half of the summer school holiday period at times to be agreed and, failing agreement :
(i)the first half in 2010 and each alternate year thereafter; and
(ii)the second half in 2011 and each alternate year thereafter;
(e)from 5:00 pm. on Christmas Day until 5:00 pm. Boxing Day in 2011 and each alternate year thereafter;
(f)if Mothers’ Day falls on a weekend when the child would not otherwise spend time with the mother pursuant to these orders, on that weekend in lieu of the preceding weekend;
(g)if the child would not otherwise spend time with the mother pursuant to these orders on the child’s birthday, for a period on her birthday at times to be agreed and, failing agreement :
(i)if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and
(ii)if the birthday falls on a non-school day, for four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.;
(h)reasonable communication by :
(i)telephone and email PROVIDED THAT until the child is ten years old, the father be at liberty to listen to the child’s telephone calls with the mother and read emails to the child from the mother; and
(ii)by correspondence sent by ordinary pre-paid post, being cards or short notes PROVIDED THAT no more than one item be sent by the mother in any one week.
(i)at such other times as are agreed between the parties.
That notwithstanding the provisions of paragraph (7)(d)(i) hereof, the child shall live with the father from 5:00 pm. on Christmas Day until 5:00 pm. on Boxing Day in 2010 and each alternate year thereafter.
That if the child would not otherwise live with the father on Fathers’ Day pursuant to these orders, the mother shall spend time with the child on the previous weekend in lieu of the weekend on which Fathers’ Day falls.
That as soon as practicable the father enrol the child at the school she is to attend from the commencement of term 2 in 2009 and advise the mother in writing of the name and address of such school and thereafter keep her advised of any change in the school attended by the child from time to time.
That the father authorise the principal of each school attended by the child to provide to the mother, at her expense, if any:
(a)a copy of each school report for the child; and
(b)a copy of each order form for school photos;
and this order shall stand as authority to the principal of each school attended by the child from time to time to comply with such requests.
That for the balance of the 2009 school year, the mother be and is hereby restrained by herself, her servants and agents from attending the child’s school, save with the written consent of the father.
That from the commencement of the first school term in 2010, the mother be at liberty to attend events, activities and functions at the child’s school which are routinely attended by parents PROVIDED THAT save pursuant to these orders the mother shall not remove the child from school without the written permission of the father.
That the father be and is restrained, by himself, his servants and agents, from attending at the child’s school at the conclusion of a school day on which the mother is to collect the child for time pursuant to these orders or the commencement of a school day on which the mother is to deliver the child pursuant to these orders, unless an event, activity or function routinely attended by parents occurs at such time.
That the mother be and is restrained, by herself, her servants and agents, from attending at the child’s school at the commencement or conclusion of a school day, save on a day on which she is to collect or deliver the child pursuant to these orders, or if an event, activity or function routinely attended by parents occurs at that time.
That as soon as practicable the father provide a sealed copy of this order to the principal of the school at which he enrols the child and the principal of each school attended by her thereafter.
That save with the consent in writing of the father, the mother be and is restrained by herself, her servants and agents from taking the child for any form of counselling, treatment or intervention which relates to an allegation that she has been sexually or physically abused by the husband or another person whilst in his care, or is at risk of being so abused, save if directed to do so by :
(a)a person employed by the Department of Human Services involved in the investigation of any subsequent complaint;
(b)a member of Victoria Police, investigating any subsequent complaint; or
(c)by order of a court.
That save with the consent in writing of the father, the mother be and is hereby restrained by herself, her servants and agents from taking the child to any medical practitioner, psychiatrist, psychologist, counsellor or like professional, save in the event of a medical emergency while in her care.
That save to the extent necessary to give force to paragraph (20) hereof, each of the parties by themselves, their servants and agents, be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of the child.
That the independent children’s lawyer arrange an appointment for the father and the child to attend Ms. D as soon as practicable hereafter for the purpose of Ms. D explaining to the child the nature and effect of these orders, and the father be responsible for the costs of that attendance.
That each of the parties keep the other advised of his/her current residential address and a telephone number at which he/she can be contacted in an emergency.
That within fourteen days hereof the mother advise the father in writing of the telephone number to which calls should be made by the child pursuant to paragraphs (4)(e) and (7)(h)(i) hereof, and thereafter keep him advised of any change in that telephone number.
That within fourteen days hereof the father advise the mother of :
(a)an email address to which emails for the child can be sent pursuant to these orders; and
(b)an address to which correspondence for the child may be posted pursuant to these orders;
and thereafter keep the mother advised of any change of postal address or email address.
That each of the parties advise the other, as soon as practicable, of any significant illness or injury suffered by the child when in his or her care, including the name of each treating medical practitioner or like professional.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That a copy of the reasons for judgment herein may be provided to :
(a)the principal of each school attended by the child from time to time and, in his/her absolute discretion, any member of staff of that school who works with the child;
(b)any medical practitioner, psychiatrist, psychologist, counsellor or like professional consulted by the child;
(c)Ms. D;
(d)Ms. G;
(d)the Department of Human Services and any DHS employee or member of a police force investigating any subsequent allegation which involves the child.
That all extant applications be otherwise be dismissed.
That these applications be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including, to 23 February, 2009, senior counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9183 of 2008

MR DALZIEL

Father

And

MS BELLADONNA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ms Belladonna (“the mother”) and Mr Dalziel (“the father”) were in a relationship between late 1999 or early 2000 until 8 July, 2006. They have a daughter, R, who was born in October, 2003. The mother was formerly married to Mr Belladonna, with whom she has a daughter, L, who is now ten. Those facts are agreed. Save for them, the parties disagree upon the nature and extent of their relationship, litigation conducted by the mother with her former husband during the parties’ relationship, the father’s relationship with R and the father’s former relationship with L. They disagree about their daughter’s living arrangements and who should have parental responsibility for her. They disagree on the time she should spend with the parent with whom she does not live.
The mother’s case is that the father was physically, sexually, verbally and emotionally abusive to her during their relationship, acted in a sexualised way with or in front of R and L prior to their separation and has sexually abused R when spending time with her since their separation. She is convinced the father is a paedophile. In her mind, he is a violent, manipulative and psychiatrically ill man who has tricked the numerous doctors, professionals and courts who, or which, have failed to find her concerns valid.
The father’s case is that the mother is a manipulative and vindictive woman, who was physically violent to him during their relationship, and who has distorted events, invented allegations and coached R to make disclosures of abusive behaviour by him as part of a strategy designed to ensure that he plays no role in R’s life.
Proceedings in this court commenced when the mother filed an application on 21 July, 2006, thirteen days after separation, in which she sought that she have sole parental responsibility for R, that R live with her and that R spend such time with the father as was recommended by a psychiatrist, following his psychiatric examination. That set of proceedings concluded when final orders were made, by consent, on 13 May, 2008, prior to evidence being called in the trial which had been fixed for 12 May, 2008. At that time both parties were represented by counsel (the mother was represented by senior and junior counsel), as was the independent children’s lawyer.
On 6 October, 2008 the Department of Human Services (DHS) filed a Protection Application in the Children’s Court. Those proceedings concluded when DHS withdrew the application on 27 November, 2008. The court ordered DHS pay the father’s costs.
A second round of proceedings in this court commenced when the father filed an application on 8 October, 2008 in which he sought that R live with him and spend time with the mother as ordered by the court. It is those proceedings which the court is asked to determine.
In these circumstances the court would routinely be interested in evidence of events which have occurred since the final orders were made by consent in May 2008; evidence of earlier events could provide context, particularly referable to any alleged change in circumstances, but would not be central to the court’s enquiry. That is not a course open to the court in this case. In order to consider where the best interests of R lie, the court needs to traverse some of the allegations which relate to the period in which the parties were together, and since their separation. That said, the focus must remain on R and on matters relevant to determining where her best interests now lie.
The mother would have had the court conduct something akin to a Royal Commission into the parties’ lives; she struggled to accept the more limited role of a court asked to adjudicate on competing parenting proposals.

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
In Hemiro & Sinla [2009] FamCA 181 I summarised the principles referable to determination of an application which involves an allegation of sexual abuse. I will not repeat them.
In essence the court must determine whether there is an unacceptable risk of R being sexually abused in her father’s care. The standard of proof is that set out in s.140 of the Evidence Act 1995 (Cth), pursuant to which 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. As provided in s.140(2), and without limiting the matters which the court may take into account in deciding whether it is so satisfied, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

EVIDENCE

Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on an affidavit sworn by him on 28 January, 2009 and affidavits sworn by Ms E on 30 January, 2009 and Ms W on 19 December, 2008. Although in his case summary document he referred to affidavits of Mr CS, Ms AU and Ms VB, those affidavits were not relied on in the trial.

The father also relied on the questionnaire filed by the mother on 14 August, 2007.
The father and Ms. E were cross-examined.
The mother relied on an affidavit sworn by her on 19 January, 2009 and an affidavit sworn by her sister, on 4 February, 2009. The mother’s sister was not cross-examined.
The independent children’s lawyer adduced evidence from the following people:
·    Ms D, a psychologist, who prepared three family reports, dated, respectively, 28 November, 2006, 12 December, 2007 and 20 November, 2008;
·    Ms M, a DHS protective worker, who swore an affidavit on 10 February, 2009;
·    Ms G, a psychologist who saw R on nineteen occasions. A proof of her evidence was tendered as exhibit ICL-2;
·    Ms O, a contact supervisor, who swore an affidavit on 6 February, 2009;
·    Dr K, a consultant psychiatrist, who assessed the parties in 2006 and 2008 and prepared reports dated 16 November, 2006 and 17 March, 2008.

Ms. D, Ms. M and Ms. G were cross-examined.
Also before the court were two reports prepared by DHS at the court’s request, dated 25 January, 2008 and 21 November, 2008.
Numerous documents were tendered during the trial including a police statement made by the mother and material prepared in the course of litigation between the mother and her former husband, Mr. Belladonna, and parts of the DHS file. Three video recorded (VATE) interviews with R were played and tendered as ICL-1. Two of those interviews were conducted on 8 December, 2007; the third interview was conducted on 3 October, 2008.
There were numerous references in the evidence to Ms Z, a worker at CASA who saw the mother and R between (probably) late September 2007 and early 2008. No evidence from her was adduced.

Parties

The father is 49. Since early December 2007 he has lived with Ms. E in a home owned by him in N. They intend to marry. He is a self-employed artist, teaching from his home and working in a wide range of venues.
In his second report Dr. K described the father as presenting as a warm, outgoing, sociable person. His presentation in the witness box was consistent with that assessment. By the time of the trial he had weathered proceedings in the Children’s Court, in which an application brought by DHS for an interim accommodation order was dismissed and significant costs awarded to him. He made little or no attempt to disguise his frustration at the continuing litigation and its ramifications on his relationship with his daughter. He was also frank about the terseness which came to characterise his dealings with Ms. O, a response which showed little judgment given the capacity for it to impact on R.
It was the submission of the mother that the father’s plausible and pleasant presentation hides a violent and psychiatrically disturbed man who has managed to hoodwink Dr. K, Ms. D, the independent children’s lawyer, the magistrates presiding in proceedings in the Magistrates’ Court and Children’s Court and, indeed, judges in this court. In her final submission the mother made it clear that she had low expectations of the outcome; the impression she gave, whether intentionally or not, was of being resigned to the court being misled, yet again, by the father’s deceptive plausibility.
I must find that I have far more confidence in the father’s capacity for objective recollection than I do in that of the mother. His dislike and distrust of the mother coloured aspects of his evidence but I am satisfied he endeavoured to tell the truth and save where expressly found otherwise, accept his account.
It would not be unfair to call the mother a woman with a mission. In the course of her evidence and in final submissions she made it clear that her task was to protect R from abuse at the hands of the father and she could do nothing but focus on that task. If she is perceived as uncompromising, that is a price she has to pay to protect her daughter. She saw herself as beset by perils and as stoically enduring a great ordeal.
The mother conceded that she lied to the Magistrates’ Court in the course of an application for an intervention order against her former husband, to Dr. J (the psychologist who prepared a family report in the litigation in this court between her and her former husband) and in material prepared for that litigation. Her explanation was, variously, her fear of the father and fear of what he would do to Mr. Belladonna.
It was the mother’s evidence that in the course of that litigation she took notes of things said and done by her daughter L and subsequently rewrote them into one lengthy document of instructions. Her preparedness to manufacture evidence was demonstrated by two such notes, tendered as exhibit F-4. The first is clearly a rough draft for the second; both are headed “Monday” and the decorative emblem on the note pad is the same on both. The first note is in these terms :
Monday
would not leave
my side
like my daddy
her bottom lip
dropped and
she wet herself
then got distressed
again
The final version is as follows :
Monday
All day she didn’t leave me alone
she had a nap
woke up crying
I went in
she wouldn’t
let me touch her
she said I don’t
like daddy started
to cry and wet
herself she was
very distressed
It is trite to say that the change supported the position the mother wished to advance and would have been detrimental to the case of L’s father.
Also in evidence was a note the mother prepared for Dr. J in which she was extremely complimentary about the relationship the father then had with her daughter L. According to her, this note was a lie; she said if it led Dr. J to believe that the father had an excellent relationship with L, he would have been misled.
The mother agreed that she wanted the father to give evidence on her behalf in the litigation between her and her former husband, in which she sought he have no contact with L, and that he declined to do so. He did see Dr. J who, after observing him with L on 15 November, 2001, found him to be gentle and good-natured in his interaction with her and that L was comfortable with him.
As noted in discussion during final submissions, it would be ironic if the mother’s admissions to perjury, dishonesty and manipulation of evidence were themselves lies; that is, if what she told the magistrate, this court and Dr. J was the truth. Indeed, the probabilities support that analysis and the explanations she gave for some of the alleged lies in the earlier proceedings (for example, lying in the course of an application to obtain an intervention order against her former husband because she was scared the father would kill her former husband, if she did not do so) were internally inconsistent, if not risible.
The potential for this to be the more accurate analysis is borne out by a report of an interview by a DHS worker with Mr. Belladonna on 15 January, 2008, in the course of the investigation into the mother’s allegations against the father. In a report dated 25 January, 2008, DHS noted that :
Mr. [Belladonna] advised that what [the mother] had stated in her affidavit when they were in court in relation to him and their relationship was true regarding incidents that had occurred throughout their relationship.
On its face, this relates to allegations made by the mother in the intervention order hearing and litigation in this court. Wherever the truth lay, the mother was prepared to lie to a court and to distort evidence to achieve her then aim.
Acknowledging that the passage of time and the stress of litigation can impact on a party’s capacity to recall events when cross-examined, the mother was consistently vague and non-responsive when asked to provide details of central importance to the allegations she made. Pressed for explanations as to her inability to recall matters deposed to at length in her affidavit, she attributed it to post-traumatic stress, being “in shock” or sleepless nights. At times her own words from her affidavit were put to her verbatim and denied by her as being an accurate account of an event. In these circumstances it is difficult for a court to have any confidence in her capacity for objective recollection.
That difficulty is exacerbated by the mother’s apparent inability to distinguish normal behaviour from sexualised behaviour and her preparedness to edit allegedly contemporaneous notes to present a distorted picture, as found in paragraphs 176 to 180 of these reasons.
I must find that the mother was prepared to attribute conduct to the father which, it transpired, was her own conduct. An illustration is her allegation that the father continuously referred to Mr. Belladonna as “Boof head”. The father denied this and tendered a copy of the first page of an affidavit sworn by Mr. Belladonna in those proceedings, annotated by the mother. In the first paragraph, in which Mr. Belladonna deposed to being the husband in the proceedings, the mother had crossed out the word “husband” and replaced it with the word “Boof head!”. While this might seem a trifling matter, it was sufficiently important to her to be put to the father in cross-examination in the course of an attack aimed at satisfying the court that the father had attempted to undermine L’s relationship with her father, by (amongst other things) denigrating him in her presence.
The mother’s explanation for her admitted perjury was that she was forced to lie through fear of the father. Only when cross-examined did she admit that Mr. Belladonna had threatened to kill her, L and the father, and had menaced her with an iron bar. In these proceedings, she sought to blame others and deny personal responsibility for decisions or conduct for which she was criticised. For example, she seemed unable to recognise or admit that the orders of 13 May, 2008 were made by consent. She represented to a number of people that the court had insisted the father see R and that she had been threatened by the court that she would lose R if she did not allow the father to have substantial time with her and/or proceeded with the allegations of sexual abuse. When pressed about her consent, she blamed senior counsel then representing her, alleging that she was pressured by him into consenting. She also attributed to him advice to the effect that the matter could be reopened or the court could find the allegations proven if R made a subsequent disclosure to another professional.
The mother blamed a former solicitor for not representing her well, a barrister (not one of those who represented her in the May 2008 trial or this trial) for failing to raise R’s sexualised behaviour with the court in August 2007 and senior counsel (including senior counsel then still acting for her in the trial) for taking R to Ms. G, in breach of the orders of 13 May, 2008. She did not deny that counsel then representing her in the Children’s Court in October 2008 conceded, in response to a question from the magistrate, that the attendances on Ms. G involved a breach of the orders of this court of 13 May, 2008 but saw that as irrelevant. Through her solicitor, she undertook not to take R to CASA on 28 September, 2007 but reneged on the undertaking without advising him of her changed position. She would not concede that the role played by Ms. G was not, as ordered, to assist in the implementation of the orders of 13 May, 2008 and alleged she misunderstood what “facilitate” meant.
The mother made a statement to police on 11 October, 2008 in which she said that contact was “going pretty OK up until September 2007”, a statement which was far from her position in the litigation, having regard to her opposition to contact from separation until mid to late 2007. She was prepared to sign a form 4 Notice of Child Abuse on 26 September, 2007, and again on 27 September, 2007, in which she stated that R “has apparently disclosed some of the matters to a police woman” when R had done no such thing. To persuade police to interview R again on 28 September, 2007 she told them of a hearing in this court on 1 October, 2007 in which the father was making an application to stop police and CASA speaking with R; there was no hearing scheduled for 1 October.
From the mother’s perspective, her lies, distortions and misrepresentations are all irrelevant to the issue to be determined. From her perspective, the father’s reliance on them is simply indicative of his capacity to trick the court into accepting his evidence. The court cannot agree with either proposition.
The examples I have given are illustrative only; the evidence is replete with further examples. Having regard to all the evidence, the court could have no confidence in the mother’s commitment to tell the truth and it must find that she was prepared to do and say whatever she thought necessary to convince the court of the case she sought to make. Further, the court must be cautious when assessing the evidence of others, including professionals, who acted on the basis of a history given by the mother. Save where corroborated, that history would provide a shaky foundation on which to build an opinion or conclusion.

Lay Witnesses

Ms. E is 44 and has lived with the father since early December 2007. When their relationship commenced Ms. E resided in Queensland and she moved to Melbourne to live with the father. She is a self-employed artist; she is also working towards the completion of a Masters Degree.
Ms. E met R on a few occasions in 2007, after moving into the father’s home and was present when the father spent supervised time with R between October 2008 and January 2009. Ms. E has no children and has not previously lived in a domestic relationship with a man who has children.
Ms. D described Ms. E as an impressive woman, measured in her responses and in expressing her personal views. R told Ms. D, in November 2008, that she loved her parents, sister and Ms E. She was excited when Ms. E arrived for the family reporting session with the father and gave Ms. E a big hug. I am satisfied that R’s relationship with Ms. E is affectionate, appropriate and comfortable.
One of the disclosures allegedly made by R to her mother involved the father forcing R to fellate him and refusing to stop even after Ms. E had entered the room, observed what was going on, and told him to stop. The mother believes this occurred. Having observed Ms. E and considered Ms. D’s professional assessment of her, I have no hesitation in finding such a scenario profoundly improbable. Regardless of Ms. E’s relationship with the father, I am satisfied she would not countenance any sexual abuse or sexualised behaviour towards or in R’s presence. I find her to be a truthful witness.
Ms. W has known the father and Ms. E only since early 2008. She has three children between nine and five and lives with her husband and children in N. Ms. E teaches art to two of her children and the father has taught one of them. Her two older children attend S Primary School in N and her youngest was to commence there in 2009.
Ms. W deposed to the father being attentive to R’s needs and of her observations of the father and R on 25 September, 2008 and 13 December, 2008. On the latter occasion his time was being supervised by Ms. O.
The mother’s sister described herself as the elder sister of the mother, being fifteen years her senior. She is a psychologist and therapist and has specialised in working with children for twenty years. In her affidavit she purported to rely on that professional expertise, evidence on which I do not place weight.
The mother’s sister deposed to having become aware, after the parties’ separated, that the father was aggressive and violent towards the mother throughout their relationship. She knew nothing of it during the relationship and there is no evidence she observed anything which alerted her to the potential for that while the parties were together. Her evidence was of the father ringing her on the night the mother left N in a highly agitated state, trying to encourage her to intervene, raving “in an erratic manner” and moving from pleading and distress to anger and the profession of love for the mother. She has not seen him since.
The mother’s sister deposed that in August 2007, on two unspecified dates, she had assisted the mother who was putting R to bed and was “somewhat disquieted” by the way in which R “displayed” her genitals in a very open manner when her nappy was put on. She also deposed to an observation of R on “one night after [R] made the disclosures” that is not further particularised. Save for saying that R’s recent behaviour had been out of character, and deposing to her observation of a high level of anxiety in R, the mother’s sister deposed to observations of none of the disturbing behaviour reported by the mother from grossly sexualised behaviour to nightmares and tantrums.
The mother’s sister swore an affidavit on 29 February, 2008 which was filed in the proceedings which resolved in May 2008. It is in identical terms to that sworn on 2 February, 2009 and filed in these proceedings. The reference to “recent behaviour” in paragraph 16 of the affidavit sworn 2 February, 2009 must be a reference to events which were “recent” when she swore the earlier affidavit on 29 February, 2008. If she had meant to refer to events which were “recent” at the time she swore the second affidavit on 2 February, 2009, she could not have sworn that the “recent behaviour” was out of character and had not been observed previously, as she had already deposed to observing it as early as February 2008.
The mother’s sister did not depose to two matters of relevance to the determination of the dispute before the court. The first is the role she played in the appointment of Ms. I after orders were made on 13 May, 2008. It was she who contacted Ms. I and obtained the referral to Ms. G. The court can assume that Ms. I would not have recommended Ms. G if she had known that the order required her, or a nominee at F Centre, to undertake the role. Ms. G’s evidence of her conversation with the mother’s sister is not contested and I can find that the mother’s sister did not bring the orders or the limited scope of the proposed counselling to her attention. It is possible the mother’s sister herself had never seen the orders and was acting on her sister’s advice and that she acted on her sister’s advice when she told Ms. G that the court had insisted R see her father and that if the mother persisted in opposing that course, she would lose R.
The mother’s sister said nothing in her affidavit of being the person who typed lengthy notes of instruction, tendered as exhibit M2.
The mother told Ms. D that she has a large extended family and Dr. K that she is one of nine surviving siblings. In the questionnaire she filed on 14 August, 2007, tendered by the father, she described frequent interaction between R and members of her family and friends and her evidence was of her brother giving R piano lessons. Save for the mother’s sister, no member of the mother’s family gave evidence. By the time the trial commenced, the mother was well aware of the reliance placed by the father on the lack of observations, by anyone other than the mother, of the allegedly flagrantly sexualised conduct, tantrums and disturbed behaviour which are, the mother alleged, a daily feature of R’s life. The court is entitled to infer from her failure to call evidence of such observations from any family member or friend (save the very limited evidence of the mother’s sister) that such evidence was not available. In final submissions the mother said that she had chosen not to involve any family members or friends in the case; she also said that the failure to call them was “the recommendation” of her counsel. She sat alone in court during the trial.

Expert witnesses

Ms. D is a psychologist and social worker. She saw the mother, father, R and L in October 2006 and prepared a report, the first of three, dated 28 November, 2006. She met with the parties, R and L again in October 2007 and prepared a second report, dated 12 December, 2007. In November 2008 she met with the parties, R and Ms. E and prepared a third report, dated 20 November, 2008.
Ms. D was the subject of trenchant criticism by the mother, criticism I find to be without foundation. Her evidence was cogent and insightful and I place weight on it. As Ms. D was in a position to observe R at almost annual intervals from late 2006 to late 2008, the court has a useful overview of her presentation and developmental progress between the ages of three and five.
I am satisfied Ms. D’s qualifications and experience qualify her to give evidence as an expert and I place weight on her expert opinion. I do not find that she commenced the interviewing process with a pre-conception that the mother was repeating a pattern of allegations she had made about Mr. Belladonna, and L’s relationship with Mr. Belladonna. I accept Ms. D’s evidence that the mother did not appear to be pressured, anxious, nervous, upset or emotionally uncomfortable when with her, despite the mother’s insistence that her emotions fell within that range, in all sessions. Ms. D was aware of the mother’s opposition to her continuing involvement after the first report and was at pains to establish a professional detachment.

The mother’s evidence was of Ms. D spending very little time with R; cross-examining her, the mother put that she had only spent ten minutes with L and R when preparing the first family report and only ten minutes with R when preparing the second. I accept Ms. D’s evidence, given after referring to the file, that she spent approximately thirty minutes with the two children on 31 October, 2006, and the balance of a two hour session (one and a half hours) with the mother. An earlier appointment for 11 October, 2006 had been cancelled.
Preparing the second report, Ms. D spent one hour and five minutes with the mother, fifteen minutes observing R and L together and thirty-five minutes alone with R. On 28 November, 2007 she observed R with her father over a forty minute session and had a separate interview with R alone which ran for another forty minutes.
Preparing the third report Ms. D observed a twenty minute play session between the mother and R and a twenty-five to thirty minute play session between the father and R. In addition to interviews with the parents, Ms. D had a separate interview with R which lasted approximately thirty minutes. At the end of those sessions R left with the father and Ms. O for a period of supervised contact, having been at Ms. D’s rooms between 9:15 am. and 1:00 pm.
I do not doubt that the mother genuinely now believes that Ms. D spent the minimal period of time with R that she put to Ms. D in cross-examination. She cannot concede the thoroughness of Ms. D’s assessment; to undermine it, and Ms. D’s competence, she has reconstructed events to present Ms. D as untruthful and unprofessional.
Ms. G is a psychologist who saw R on nineteen occasions between 26 May and 27 October, 2008. Ms. G was an impressive witness, who readily conceded the potential impact on her opinion of the partial and inaccurate history provided to her by the mother and the lack of any input by or on behalf of the father. Ms. G was misled by the mother’s sister and the mother into taking on a role which was not only contrary to that envisaged by paragraph (8) of the orders of 13 May, 2008, but in breach of paragraph (9) of those orders. I make no criticism of her in that respect. However, some caution needs to be exercised when assessing her evidence as she was not in possession of much information which would have been relevant to an ultimate professional opinion.
Ms. O described herself as “a supervisor by profession”. It seems that Ms. O considered the supervisory role to include a number of matters which could not fall within it, including the decision as to whether an allegedly ill child was to spend time with the father, and she had numerous discussions with the mother about R’s alleged disclosures and behaviour. She deposed to asking the mother, early on, why she continued to send R to her father for almost a month after R’s disclosures to her, a question indicative of a view that she was entitled to test the hypothesis of allegations.
On 7 January, 2009, which was the twentieth period of time supervised by Ms. O, she had a conversation with R after R allegedly said to her “he’s really bad, he said some really bad things”. Ms. O had been supervising the father’s time since 22 October, 2008; she must have known herself whether bad things had been said in the twenty periods of time at which she had been present. Instead of distracting R, Ms. O then had a conversation with her which she maintained after R said “can you tell the judge”. R then went on to disclose that her father “did it one ‘old time’ and ‘new time’”. I will refer to this alleged disclosure later but it is not surprising that the father’s confidence in Ms. O as an independent supervisor was significantly diminished when he learnt of this, which he did after Ms. O set it out in a letter to the independent children’s lawyer, dated 8 January, 2009.
Ms. O’s role was to supervise. Her role was not to tell the father where he could and could not park when R was collected; no order precluded him parking outside the mother’s home and Ms. O’s concern (or identification with the mother’s concern) that he could see the front door from where he was parked was irrelevant. Not infrequently orders require a supervisor to collect a child alone, but no such order was ever made in this case; all that was required was that the father’s time with R be supervised.
Similarly, it was not Ms. O’s role to intervene and decide what was in R’s “best interests” (the expression used by her on page 12 of her report) in terms of activities with the father. She was not there to assist him with parenting advice; the role required her to be present and hear and see everything that occurred. She could certainly have intervened if he had spoken to R about sexual matters, acted in a sexually or physically inappropriate way or said anything which could be perceived as threatening or denigratory to R.
Ms. O was not required for cross-examination so her report is not contested. That does not mean that any partiality reflected in it cannot be noted.
Ms. M has been employed by DHS as a protective worker since May 2007. She overstated her qualifications, deposing to having graduated from a university in Norway in 2005; the institution she attended was not, she conceded, one of the four universities then operating in Norway. Her qualifications are a matter for DHS and the court can draw an inference that those who employed her were satisfied that her academic qualifications complied with the job specifications. Of more relevance than academic qualifications is Ms. M’s experience, or lack of it; the impact that had on her dealings with the mother and R, with police and professionals, and the conclusions she drew; and her lack of objectivity.
Prior to commencing with DHS in 2007 Ms. M had worked part-time for a few months at GordonCare, after finishing a masters degree in human resources management. Ms. M was frank about her lack of experience and the limits of her professional expertise. She said she did not know if the timing of an interview with a child (who had disclosed abuse) was important and that she did not feel experienced enough to say whether it was more difficult to elicit reliable information from a child who has been interviewed many times.
Prior to her involvement in this matter Ms. M had never given evidence in a court and never observed a VATE police interview. She had never had a child make an apparent disclosure of sexual abuse when being interviewed by her. She has never observed a colposcopic examination. She demonstrated no understanding of the obligation to tell not only the truth but the whole truth and simply omitted from her affidavit any information not supportive of the case she sought to make. Indeed, she frankly admitted that the “agenda” of her affidavit was to persuade this court that R was at risk of abuse in the father’s care.
It is probable that those responsible for supervising Ms. M, and those in what she referred to as the advocacy section, let her down and she is not responsible for their failures. She is responsible for seeking to perpetuate flaws in the DHS case which were exposed when DHS brought a protection application in respect of R in the Children’s Court in October 2008 and her zeal was undiminished by the fact that the magistrate before whom an application for an interim accommodation order was listed, ordered DHS to pay $17,100 costs to the father when, after some days of hearing, DHS withdrew that application.
Having regard to her inexperience, poor note taking, ignorance of the legal process and preparedness to mislead this court, the court must have significant reservations about the weight to be put on Ms. M’s evidence.
In 2004 Guidelines on the State of Victoria’s Obligation to Act as a Model Litigant were published. The obligation applies to litigation involving State Departments and agencies; in essence, being a model litigant requires the State and the agencies to act with complete propriety, fairly and in accordance with the highest standards. DHS declined to intervene in these proceedings and the State was thus not a party to the litigation in this court. Nevertheless, a witness in the position of Ms. M must have, in addition to the usual obligations of a witness (which is to tell not only the truth, but the whole truth) an obligation not to knowingly mislead a court.
As the research which gave rise to the Magellan List showed, this court and the Children’s Court share a cohort of cases, in which significant allegations of physical, sexual and emotional abuse are made. DHS plays a vital role in the lives of the children who are the subject of such allegations. Its written reports to this court are routinely professional, thorough, lucid and informative. On occasions, counsel appear for DHS, usually Amicus Curiae and sometimes after accepting a request to intervene in the proceedings, made pursuant to s.91B of the Family Law Act 1975. The court often has had cause to commend individual protective workers and, more broadly, DHS for its rigorous investigations and insightful recommendations. It gives this court no pleasure to make findings critical of Ms. M and those who supervised or advised her.
Dr. K is a psychiatrist who saw the parties and prepared assessments of them in November 2006 and April 2008. He prepared a report relating to the father dated 15 November, 2006 and a report relating to the mother dated 16 November, 2006. He subsequently prepared a further report in respect of each of the parties, dated 17 March, 2008. In all of his reports Dr. K stressed that he was not in a position to determine which of the parties’ accounts was accurate and that judicial determination of the facts in issue was essential. Dr. K was not required for cross-examination and I place weight on his opinions. Given the mother’s conviction that the father is mentally ill, I summarise it in some detail.
The mother was particularly concerned about the father’s alleged failure to come clean with Dr. K, Ms. D and the court about his psychiatric background or history and the family violence in his childhood home. She spoke of the latter with some relish to Ms. D during the interviews for the third family report.
The father told Dr. K that his father had drunk a lot and that was his father’s downfall, that his father had been violent when he was younger but settled as he got older and by the time he developed dementia in his late 60s, he was “a good buddy”. He said his father was “really physical”. It is possible Dr. K meant “rarely physical” as the sentence continues “but he had struck his mother”; the father described his father as an alcoholic and his childhood as somewhat patchy because of his father. He left school at form two.
When first interviewed by Dr. K in November 2006 the father said that he had a panic attack in 1998 after giving up coffee and cigarettes. No other psychiatric history is included in the brief section in Dr. K’s report. However, Dr. K made it clear that he had read the mother’s affidavit and the comments of Professor F about the father’s “anxiety type conditions” as well as the notes of his doctor and his affidavit.
Dr. K’s assessment at that time was that there was no reason to say that the father had significant psychiatric, psychological or emotional problems. He said the father clearly suffered from a mild generalised anxiety disorder with perhaps some panic and some somatic expression in terms of chest pain and dizziness. In his opinion the father seemed to have dealt adequately with his anxiety/panic and it did not appear to significantly interfere with his life in its own right, although it may have caused him distress from time to time. Dr. K referred to his “fairly difficult background” and limited education.
Dr. K went on to consider the picture the mother painted of the father, saying if it were correct he was a man who is very controlling, physically and verbally aggressive, sexually very forceful, dominating and, perhaps, even abusive, immature, jealous of her ex-husband and inappropriate in the way that he is supposed to have expected L to support him against her own father. In Dr. K’s opinion, if the court accepted her evidence, then “one can certainly argue” that any contact should be supervised in the reasonably long term.
One could summarise that report by saying that Dr. K thought that determination of the competing allegations was vital, particularly those relating to violence and abuse, and this, rather than aspects of the father’s psychiatric history and personal background, was at the heart of the case.
Dr. K saw the father again in March 2008 for psychiatric review. He was provided with an enormous amount of material, conscientiously listed at the commencement of his report.
Dr. K recounted the history of recent events provided by the father and his advice that he did not see a psychiatrist or psychologist, took St. John Wort and exercised, read a lot and has done a cognitive therapy course at R.M.H. in 2000. In Dr. K’s assessment he presented again as an intelligent, animated and emotionally responsive person. He was certainly not distressed, depressed or anxious but was clearly somewhat perplexed at what had happened and dismissed the claims of sexual abuse as untrue and nonsense.
In his conclusion in that second report, Dr. K repeated that he was not the trier of fact and that it was up to the court to determine the allegations of sexual abuse. He said that after a second assessment he stood by his assertion that the father does not give evidence of relevant psychiatric disturbance. In interview he did not gain an impression that the father was an aggressive person and certainly did not get an impression he was a sexually abusing person. Having said that, he “insisted that one cannot make any definitive comment about that from an interview situation alone” and continued :
. . .but having reviewed my prior report, the report re [the mother] and having read extensive documentation, I have to say that I feel somewhat more comfortable in seeing him as a man who doesn’t have psychiatric disturbance and would be surprised if he had been as abusive as claimed and would be surprised if he has sexually abused the child.
But of course in that regard I have no alternative but to accept the Court’s decision as to whether there has been sexual abuse.
Of course if the Court decided there was not evidence of sexual abuse, then it raises very serious questions about the mother’s reporting and the possibility of the mother influencing the child in this direction, in which case one could very definitely argue that the child might well be better off with him.
When the mother first saw Dr. K in November 2006 she described a physically and sexually abusive relationship, recalled an occasion when the father said “look, she likes dominating” when he got R to smack him on the bottom and of him once playing inappropriately with Barbie dolls in front of the child in a sexually provocative way. She told Dr. K that she “took out an intervention order against him”, a probable reference to the interim order which lapsed after the judgment of the magistrate in December that year.
Dr. K did not see the mother as having significant underlying psychiatric, psychological or emotional problems. He said there may have been difficulties in her childhood related to her mother’s serious psychiatric illness (she had told him that her mother had several nervous breakdowns and psychotic episodes, was hospitalised on occasions, had shock therapy and had ten children, one of whom died at two weeks), which may well have interfered with her schooling, quality of life, sense of competence and self image. She had acknowledged to him that she tended to stay in unsatisfactory relationships longer than she should and that she had made wrong choices in her relationships. He observed that she appeared to have coped well in her life despite that, noting (perhaps less than coherently) :
At this stage, I suppose we would have to say that she continues to suffer from a continuing adjustment disorder with anxiety and some depressed mood associated with the problems in this relationship. I suppose one could talk in terms of Post Traumatic Stress Disorder but I don’t think that helps as much. I think it is more appropriate under these circumstances to see it in terms of adjustment disorder with some elements of Post Traumatic Stress Disorder associated with the disastrous relationship this appears to have been.
The mother told Dr. K that she had been seeing a psychologist during the relationship with the father and continued to do so, and in his opinion it was appropriate for that support to continue.
Again, in essence, Dr. K’s opinion was that the court would have to determine which of two apparently plausible accounts was closest to the truth.
When Dr. K saw the mother again in March 2008 he had access to the material to which I have earlier adverted.
Asked about the father’s time with R since he last saw her, she said “[R] went generally okay”. She told him that sometimes R did not want to speak to her father on the phone but that was the exception rather than the rule. She told him of a “few odd things” that she had reported to her solicitors, giving as examples “that the child had referred to her (genital region) and has also pointed to the skin of her vagina while looking at her”.
In Dr. K’s opinion the mother was pleasant, animated and emotionally responsive and there was nothing to suggest she was hallucinated, deluded or thought disordered. To him she repeated her assertion that the father was aggressive, that she only stayed with him out of fear and she gave him the impression that she accepted that he had sexually abused R.
Later in the report Dr. K repeated that in interview the mother did not give a history of significant continuing relevant psychiatric, psychological or emotional problems. Dr. K continued :
You will note that when last I saw her I saw her as being quite plausible and very convincing.
However, in view of the other documentation that I have read I have to say that I must have greater reservations about the reliability of her history.
Indeed from reading the Court Proceedings, there is much that she claims that simply does not make sense and reflects very badly on her credibility as a witness.
It is appropriate for me to emphasise that I am not the trier of fact and that I am not in a position to say whether her evidence in this case is reliable or not.
Commonsense says that if the Court considered that her prior evidence was not reliable, then one would have to accept that her current evidence may also not be reliable.
The issue of disclosure of sexual abuse in the context of separating/ separated/ warring couples is a vexed one.
The process of going from one parent to another invariably produces some minor behavioural disturbances at the time of and related to changeover. It would seem to me that if you have an orientation towards the possibility of sexual abuse, then it’s not difficult to interpret in that way and also not difficult to involve the child’s discussion and talking in the direction of “disclosure”.
But I can only make those comments while acknowledging that the Courts must at least be aware of that problem as myself.
In view of all the other information I have read and quite frankly in view of the way [the father] presents to me, I find I have difficulty accepting that sexual abuse to the child has occurred.
But of course I have knowledge that it is for the Court to decide.
If the Court does not accept that there’s been sexual abuse, then does it mean that she is deliberately misrepresenting; does it mean that she is unconsciously putting these thoughts into the child’s mind? If that were the case then one could well argue that her contact with the child should be reduced.
But the point I am making here is that the critical question is for the Court to decide and that is, whether she is likely to have been abused or not.

Dr. K frankly conceded in his report that the fact that he, after two interviews, had great difficulty seeing the father as an aggressive man and great difficulty seeing him as a sexual abuser was vastly different to being able to say with any degree of confidence that he has or has not abused R. It is that which is the critical question, in his opinion.
A protective worker spoke with the father’s GP in January 2008 who told her (this is recorded in the DHS report dated 25 January, 2008) that the father had experienced anxiety, due to the litigation, since 2006. He said the father was upset and shocked when the mother left without warning and was proactive in addressing his anxiety without medication. He said the father’s alcohol intake was minimal. He had prescribed an anti-depressant in 2004 due to family stressors but the father elected not to take it as he could not tolerate it.
It is not uncommon for an adult’s recollection of childhood events or evaluations of parental roles to move from time to time. The father may have understated his involvement with mental health services prior to or during the parties’ relationship. I am not satisfied that a focus on this medical evidence or on this aspect of his past is useful. The relationship observed between him and R is an indicator of his parenting capacity and understanding of that role; there is no evidence (save the mother’s allegations of abuse) that his life is presently impacted by depression or mental illness. I accept Ms. E’s evidence of her relationship with the father and his with R.

LEGAL REPRESENTATION

In the first round of the proceedings the mother was initially represented by Maeve O’Brien & Associates. That firm was still acting for her when she filed the Notice of Child Abuse on 29 September, 2007. They filed a Notice of Ceasing to Act on 5 October, 2007 and Ken Smith & Associates filed a Notice of Address for Service on 11 October, 2007. They were still on the record when the trial commenced on 16 February, 2009. On the morning of the sixth day of the trial (23 February) senior counsel for the mother advised the court that his instructions and those of junior counsel had been withdrawn and the mother had terminated the retainer to Ken Smith & Associates.
On the application of the mother the case was adjourned for a week to retain other lawyers or prepare to continue the trial without legal representation. At the court’s request, the mother completed a Notice of Address for Service on 23 February, 2009. A court ordered transcript of the trial to date was provided to the parties, at no cost.
On 26 February, 2009 Slater and Gordon filed a Notice of Address for Service for the mother. The following day, 27 February, 2009, they filed a Notice of Ceasing to Act for her.
The mother spoke of contacting a solicitor soon after the case was adjourned on 23 February and of being told that the matter could not be prepared in time for the adjourned date. She then retained Slater and Gordon, and put that firm in funds. She understood that they were to make an application for a further adjournment and, possibly, to reopen her case. They may well have foreshadowed such an application by letter on the day they filed a Notice of Address for Service (26 February). Little turns on that as they filed a Notice of Ceasing to Act the following day. On the afternoon of 27 February the mother contacted the court in a distressed state, with advice that she was unrepresented.
The trial was listed to resume on 2 March and on that day the mother appeared without legal representation and sought a further adjournment. She advised the court that she had sacked her former solicitor, and senior and junior counsel, because they had refused to put evidence before the court which she believed to be vital. She referred to evidence of notes recording sexualised behaviour of the father in front of L and R prior to separation and old medical records of the father which, she believed, would undermine the history he gave to Dr. K and prove he suffered from a mental illness.
The allegedly sexualised behaviour of the father in front of L related to the way he ate an orange. The wife had been cross-examined about her failure to refer to this in any earlier affidavit material and asked to demonstrate his actions, which she did. She sought to adduce two handwritten notes, taken respectively in mid-2006 and “around 2007 or 2008” to counter that attack. It certainly had never been put to her that she had not made a note of any such observations; counsel for the father’s questions had been carefully phrased. Nevertheless, I allowed her to reopen her case and tender the notes in question, as exhibits M-3 and M-4.
The mother was not permitted to reopen her case in general or to adduce into evidence the various records, specific and unspecific, to which she adverted.
The mother’s application for a further adjournment was not granted and short reasons for that decision have previously been published. It thus fell to her to cross-examine Ms. D and Ms. G and to make final submissions. To the extent that the mother’s evidence and the proceedings to date had revealed criticisms of Ms. D, these were put to Ms. D as best the court could, without taking on the role of counsel for the mother.
Although as the respondent the mother would routinely have addressed prior to counsel for the father, he willingly addressed first, meaning she had heard the submissions of the ICL and of the father prior to commencing her address.

CHRONOLOGY

Commencement of relationship : late 1999, early 2000

The parties met when they, and Mr. Belladonna, were members of an artistic group: all three were artists. The mother left her marriage to pursue the relationship with the father and it is unsurprising that tensions between the three marked the commencement of that relationship.
The mother’s evidence was that although she commenced a relationship with the father in late 1999, she and he did not live together in a de facto marriage relationship until 2004, when she, L and R moved to live with him in his N home. The father’s evidence was that the parties lived together from a time soon after the commencement of their relationship in 2000; he said that although he maintained his own residence, from which he worked, he slept always at the mother’s home in W, both before and after R’s birth, until such time as she, L and R moved from that home to his home in 2004.
In one sense little turns on this dispute. The court not infrequently hears of parties who maintain separate residences but spend most of their time together, sleeping at one or, sometimes, both properties from time to time. “Living together” may mean different things to different people. I am satisfied that the father spent far more time in the mother’s household than she was prepared to concede prior to 2004, and that they operated as a couple for some years prior to R’s birth in 2003.

The mother and Mr. Belladonna : prior to and after separation

The mother was married to Mr. Belladonna for some twelve years and their daughter, L, was born in August, 1998. L lived with her mother after her parents’ separation when she was about two. She remained with her mother during the parties’ relationship, and continues to do so. I am satisfied the mother was engaged in acrimonious litigation with Mr. Belladonna in both the Family Court and the Magistrates’ Court, the latter in relation to an intervention order she sought against him.
The impression the mother sought to give was of an amicable and co-operative relationship between her and Mr. Belladonna, marred only by some tension after separation, occasioned by his anger and denigration of her to or in front of L. Indeed, she attributed much of that tension to the father’s attitude to Mr. Belladonna. While deposing to litigation between them, and orders made by consent in 2000 and 2003, she neglected to depose to her attempts to deny Mr. Belladonna all contact with L and to the serious allegations she made against him in the course of their litigation.
Only cross-examination revealed that, according to the mother, Mr. Belladonna had threatened to kill her, to kill L and to kill the father. In those proceedings the mother alleged that L had reported that her father had threatened to kill her and her mother and that L begged not to be sent to spend time with him. In evidence was a note the mother made recording :
She (L) told me on Sunday after we came back from daddies (sic) Daddy hates you and me, he’s going to kill us both.
A handwritten compilation of notes taken by the mother recorded statements allegedly made by L and the mother’s alleged observations of L’s behaviour after separation from Mr. Belladonna. Amongst the alleged observations, reported statements and opinion are the following :
·    L frequently saying, and yelling, that she did not like her father and great reluctance to go to her father;
·    L saying “now I don’t like daddy because he is a naughty boy” and that her father was “naughty to me” and that she didn’t want to see him any more;
·    L telling other children “my daddy not very nice to me”;
·    L being angry with her mother because “she thinks I am not listening to her about daddy”;
·    sustained and furious tantrums by L in which she threw herself on the floor, wouldn’t let her mother kiss or cuddle her and physically assaulted her mother;
·    L hitting the mother, pushing her face away and digging her hands into her neck;
·    L being irritable, angry and not sleeping on her return from her father’s, and insisting on sleeping with her mother;
·    L’s face displaying great sadness;
The mother was cross-examined about statements in Dr. J’s report attributed to her, which related to Mr. Belladonna’s behaviour. These included allegations that Mr. Belladonna had threatened to kill her (the mother) if she allowed L to have any involvement with the father in this case, that Mr. Belladonna had behaved in a physically aggressive way with L, that he used foul language. It is clear that in that litigation Mr. Belladonna denied observing any of the aggressive and disturbed behaviour which the mother deposed was a hallmark of L’s presentation. The mother told Dr. J that although L appeared to enjoy herself with her father, she (the mother) believed L was fearful of him. She said L was unlikely to display disturbed and aggressive behaviour (as observed by the mother) when in Mr. Belladonna’s care because “she wouldn’t feel safe enough with him to display her emotions”. The mother agreed that Mr. Belladonna had alleged she had coached L to say critical things about him, an allegation she denied.

Separation : July 2006

On 7 July, 2006, without notice to the father, with whom she was living, the mother attended the Sunshine Magistrates’ Court and sought an interim ex-parte intervention order. The aggrieved family members were herself and her two daughters; the respondent was the father. The mother would not concede that her application was dismissed; her evidence was that it was adjourned and the magistrate said she could “come back again”. It is probable the magistrate declined to make an ex-parte order and directed service; the mother could “come back again” on the next return date, after service. There is no evidence that application was ever served on the father. The mother did not return to Sunshine Magistrates’ Court.
The following day, 8 July, 2006, the mother left the father’s home, with L and R, and moved to her parents’ home in the inner suburbs of Melbourne. Her evidence was of her parents making arrangements to remove their belongings that day. No notice was given to the father, who learnt of their departure on his return home. Much later that night he attended the mother’s parents’ home; it is probable he was angry and frustrated, and was verbally abusive. The mother called no evidence from either of her parents.
On 11 July, 2006 the mother attended the Heidelberg Magistrates’ Court and filed another application for an interim ex-parte intervention order. Her explanation for this was advice from her then solicitor. A transcript of that hearing reveals that the magistrate asked the mother if the children were at risk as a result of the father’s alleged behaviour, to which she replied that while he got annoyed with L, and raised his voice, and had hit her while R was in her arms, he was not directly violent to the children. She gave no evidence of any sexualised behaviour by the father or inappropriate sexual interaction between him and L or R.
On 11 July, 2006 an ex-parte interim intervention order was made.

First application for final parenting orders : 21 July, 2006

On 21 July, 2006 the mother filed the initiating application in this court to which I have adverted. Filed thirteen days after the parties’ separation, she sought sole parental responsibility. She also sought that the father have only such contact with R as was recommended following psychiatric examination.
In her affidavit of evidence in chief in these proceedings the mother deposed :
As a result of the sexual, physical and emotional abuse I suffered at the hands of the father, I was always concerned about the risk to [R].
Asked about this, the mother said “of course my child was at risk of something”.
On 14 August, 2006 the mother filed a Notice of Abuse in which she alleged that the father was physically violent and should have no contact with R.
The mother’s application was listed to a case conference before a registrar on 21 August, 2006. An independent children’s lawyer was appointed and orders were made, by consent, providing for telephone contact only on each Saturday and Wednesday between R and her father. Both parents were to enrol in and complete post-separation parenting courses and anger management courses.
That day the father filed a response and an application for interim orders. He sought that the parties have shared parental responsibility, that R live with him and spend time with the mother at such times as the court deemed appropriate. In the alternative, he sought that R live week about with each of her parents. He sought that the mother be assessed by a psychologist or psychiatrist and restrained from physically and verbally abusing R and denigrating him in her presence.
On 1 September, 2006 the father filed a Notice of Family Violence in which, by reference to numbered paragraphs of an affidavit sworn by him on 20 August, 2006, he gave examples of the mother’s violence towards him, R and L.
On 12 September, 2006 the mother filed a response to the father’s application for interim orders, reiterating the final orders sought by her; that is, that she have sole parental responsibility, R live with her and the father be psychiatrically assessed and only spend such time with R as was recommended by a psychiatrist.

Orders for supervised time : 15 September, 2006

The applications for interim orders came before Senior Registrar FitzGibbon on 15 September, 2006. At that time the father had spent no time with R since separation; he had had some phone contact pursuant to the earlier orders. Before the Senior Registrar the father made an oral application to spend time in the interim at Relationships Australia’s Contact Centre, an application the mother opposed. Despite that opposition the Senior Registrar made orders for the father to see R at the contact centre once a fortnight until the case returned to court on 30 November, 2006. Other orders provided for the parties to be psychiatrically assessed by Dr. K and for the preparation of a family report by Ms. D.

First family report : 28 November, 2006

After observing R for the first time in October 2006, Ms. D described her as a bright, confident child with strength of character who thrived on one-to-one attention. R was just three. She was socially well-adjusted and her overall behaviour was age-appropriate. She was described by the mother as a happy little child and a normal child. Seen together with L, R told Ms. D that she loved “mummy, [L], my daddy, [DL]”. DL is a relative on the mother’s side.
Observed with L both children played well and L impressed Ms. D as a child with a sweet nature, although a little anxious.
When the two children were observed with their mother, R began to interrupt her mother, was quite defiant and would not listen to her mother’s requests. Ms. D observed indications that R was a child who needed a regular and predictable routine, of stability and consistency, and quite direct and firm boundaries.
During this session L played quietly by herself most of the time and, Ms. D observed, appeared quite detached from the interaction between the mother and R. She presented as quite self-contained and as a little lost in the wider dynamics of the family and felt that at times she was not listened to. She understood that her mother and the father were not friends and that her mother and her own father were friends “. . . sort of”.
R was notably positive and enthusiastic about meeting her father, greeted him warmly and interacted with him in a close, affectionate and essentially unremarkable way. The father was entirely appropriate in his interactions and R settled easily with him. When it was time for him to leave she went extremely quiet; she snuggled into him and hugged him as he tried to distract her by asking if she wanted to help him pack up the toys. At that time the father had had two supervised sessions of time with R at a contact centre, the first face-to-face contact he had had with her since the parties’ separation some months earlier.
Ms. D noted the vitriolic allegations the parties made against each other and the importance of the court determining the veracity of the material.
The mother told Ms. D that she initiated the proceedings because she wanted sole custody, and nothing to do with the father, because of “threats of violence”. She sought that R’s time with the father be supervised. She saw her position as one of protecting R because “I don’t trust that he wouldn’t do something irrational”. She explained to Ms. D that she felt R was at risk because the father would hurt the child in order to hurt her.
Ms. D asked the mother about the previous litigation with L’s father, noting the mother was now in a similar position to that she was in then. Ms. D had Dr. J’s family report and when asked why that had been needed, the mother told her she had wanted to decrease L’s time with her father to no time, and he had disagreed. She said she was “just guided by my solicitor”.
The mother conceded that following the separation R mentioned her father and kept asking where he was, but said that decreased; she did say that at the end of the first session at the contact centre R broke down and starting crying because she wanted her father.
Asked about a preferred long-term living routine for R, the mother told Ms. D that she had not even thought about it. She wanted the father’s contact supervised “for ever”; when asked how that would work, the mother said she did not know.
Ms. D concluded that the mother presented as notably self-focused with a seeming inability or reluctance to take any responsibility for her actions. She presented with little insight into the emotional needs of a young child. It seemed clear to Ms. D that the mother’s contention that R’s time with her father should be supervised was based on her own claims and recollections of her own relationship with the father, rather than any objective understanding of R’s relationship with her father, which she saw as something quite separate.
Although the father was critical of the mother to Ms. D and described her as controlling and manipulative, he made it clear that he believed R loved her mother and told Ms. D “I’m not going to sit here and say [the mother’s] a terrible mother”. The mother sought to rely on that statement as proof that his criticisms of her were inventions, an analysis which takes the remark out of context and cannot be sustained.

The ICL’s submission mirrored that of the father.
The parties’ respective positions were reflected in the orders sought by each at the end of the trial. The mother sought sole parental responsibility for R and that she have no contact or communication with the father.
The ICL prepared a minute of proposed orders which was tendered as ICL-4. He proposed that R live with the father and the father have sole parental responsibility. He proposed that R spend no time with her mother during the fortnight after her move to her father’s home and thereafter spend time with her on alternate Sundays from 10:00 am. until 5:00 pm., on each alternate Wednesday from 4:30 pm. until 7:30 pm. and on special occasions. It was submitted that such time should be supervised by an agreed person and, failing agreement, by a professional supervisor and that the mother should bear the cost of supervision. Supervision should remain until 1 January, 2010 or earlier date agreed by the parties. The ICL proposed orders which would ensure the mother was kept informed of important aspects of R’s education and health. It was submitted that the mother should be restrained from taking R to any psychologist, counsellor, therapist or medical practitioner, save in the case of a medical emergency.
The father sought orders broadly as proposed by the ICL, but with a minimum period of four weeks between R coming to live with him and commencing to spend time with her mother.
To make findings referable to the primary considerations the court must assess the evidence of sexual abuse and the risk of R being sexually abused by the father in the future.
This judgment includes far more detail than might usually be recorded but can only give the flavour of the mother’s evidence of the statements and behaviour which, she is convinced, are explicable only by reference to sexual abuse. I do take into account all the evidence of observations made by her, including those set out in the typed notes tendered by her, in affidavits sworn by her, in conversations with professionals and those investigating the allegations and in the witness box. I also take into account statements scattered through Ms. O’s report which are, or might be critical of the father and Ms. E.
I accept as sound Ms. G’s evidence that not all children who are sexually abused manifest behavioural disturbance and that a child who is fearful may make no disclosure, notwithstanding the existence of abuse. In some cases that fear could be sufficiently profound to stop a child disclosing if he or she knew that the alleged perpetrator was somewhere in a building, even if not in the same room as him or her. Further, an abused child can say things that are inconsistent internally and may behave one way in one environment and in different ways in another.
Both Ms. D and Ms. G stressed the significant emotional and psychological damage which can result if an abused child is not believed. Both agreed on the significant psychological and emotional damage which could result from bringing up a child to believe she had been abused, when she had not. The impacts of the latter can be as devastating as actual sexual abuse.
The evidence as a whole satisfies me it is more probable than not that R has been coached by her mother to make allegations of sexual abuse. The language used by R, her affect, her advice about role-playing with her mother, her need to let her mother know she had disclosed to professionals and pleasure in doing so, her express denial of the bad things her mother wants to say happened to her, all support this finding, as does evidence of Ms. G and Ms. E.
Ms. G was asked about R’s statements to Ms. E, reported in the third family report. She agreed that they supported “the coaching scenario”. When told that R had said that she tells her mum to stop it, Ms. G responded “yes, that changes it”.
Ms. G frankly conceded that R’s account to Ms. D was significant and that there were “huge vacuums in her own report”. She agreed that the fact R could not tell her what she meant by long bottom on 15 September, 2008, but knew what it was when interviewed by DHS workers and Ms. D later, meant that “there have certainly been conversations about it”, and that this also supported coaching.
Ms. G was not told by the mother, when she saw R on 30 September, 2008, that she had had a colposcopic examination the previous day; it was her evidence that such an examination is “absolutely major” and potentially traumatic and the whole experience can impact on a child. She said that one would need to be cautious about things said by R on 30 September, as one could not know what R and the mother had spoken of by that time.
The mother firmly and consistently denied coaching R and that R could have picked up concerns from her. I cannot find either denial to be supported by the evidence. It is probable that much of the mother’s time and energy is consumed by her own focus on R’s perceived sexual abuse and her fears about it, and that R and L are being brought up in an environment in which that focus permeates their interaction. It is probable that the subject is introduced into conversations by the mother, and R was subtly rewarded when she responds positively to the mother’s cues. Ms. D’s evidence was that it would be miraculous, indeed “stunning”, were R not to be aware of her mother’s views; every communication which relates to the father in any way is emotionally charged. R’s comments to Ms. D in late 2008 suggest she is very tired of it. She wants her mother to stop talking about it. It didn’t happen.
R’s comments to police in the third VATE tape are consistent with that and consistent with a child saying what she then thought she had to say and wanting to finish it.
R’s delight when, at her request, Ms. G told the mother R had said her father put his finger in her long bottom is the response of a child who has done something her mother wanted and knows she will be commended for it. It was as if she had given her mother a present which she knew her mother wanted; she was animated and pleased and jumping up and down with happiness.
Ms. D spoke of the lack of any corresponding emotional affect when R spoke of the abuse allegedly perpetrated on her. Her observations of R led her to believe that R had been coached by others and had a “script to say”; considering the words and the way they were said, Ms. D said “I have no concerns she has been abused”. It was Ms. D’s evidence that by the time of the third family report R was old enough to discern the difference between her own story and her mother’s story, and was able to articulate that to her. R could differentiate between what she said and what others said, illustrating appropriate cognitive development.
The mother has been attending a psychologist for some years. R’s sister, L, was recently referred to a psychologist; although this initially appeared to be responsive to (according to the mother) L’s distress about her younger sister’s sexual abuse, it transpired that it was Mr. Belladonna who sought that counselling, he being concerned about L’s behaviour. Accepting Ms. O’s evidence, R has been biting and scratching her mother. If the mother’s evidence is believed, R’s behaviour is often aggressive and uncontained and she continues to have frequent tantrums, rages and nightmares, and generally behaves in a very disturbed fashion. On the mother’s account, there is little sense of stability or security in the family home; each day is a struggle.
R has been asked about her father’s behaviour towards her many, many times since her parents’ separation. Ms. G did not raise his behaviour with her until R “disclosed” in September 2008 and her evidence was that until that time, R brought to her no issues of sexual abuse. What she brought to the counselling session were benign and positive things about her father, together with healthy clashes of wills, to be expected between a father and a child who Ms. G described as “quite a controlling little girl”.
R was interviewed by Ms. Z on an almost weekly basis for many months. She has had multiple medical examinations, including a colposcopic examination. She has been interviewed by police on five occasions. She has had formal interviews with DHS workers and then fortnightly home visits, which were continuing at the time of the trial. She has seen Ms. D three times.
None of the myriad professionals who have been involved with R have observed any disturbed or sexualised behaviour by her, save Ms. Z’s opinion, relating to her posing for photos and assertion she was the ringmaster. Enquiries made by DHS of R’s kindergarten teacher revealed no concerns. The mother called no evidence from any family or friend which supported her account of R’s behaviour, save the limited observations of her sister relating to R’s behaviour when having her nappy changed a long time ago.
Ms. M’s evidence was of seeing R some six or seven times in all, between 30 September, 2008 and the trial. On no occasion did she observe any sexualised behaviour or anti-social conduct directed against the mother or any oppositional behaviour. On one occasion R got “a little bit upset” when she was playing a game with her sister L and L did not understand how to play it.
Some of R’s allegations are nonsensical; an example is her statement that her father put his finger in her long bottom, and that a long bottom is where one does a long poo. They are consistent with her parroting words or concepts used by others, without any idea of what they mean.
I have no hesitation in finding any account of abuse in Ms. E’s presence to be without foundation; these include an account of fellation and of taking a photograph at a play centre when R was three.
While a court should never discount an allegation simply because it is bizarre, the allegations about her father weeing and pooing on her were repeated without any perception of the actual impact of such behaviour.
I cannot find the origins of R’s statements that her father said he could hear her; she may have repeated something said in a different context and had it seized on by her mother and Ms. M, or the idea may have originated in her mother’s home. I am not satisfied that the father has ever threatened her in that way, or ever threatened that he would kill her mother or cut her throat, or said on the beach that he would punch her mother.
The distortions in the accounts of the mother, identified in this judgment, mean that the court must be very, very cautious about accepting as fact anything observed or done by a child or adult which is construed by her to be sexual. To put it bluntly, she is an unreliable witness.
The court itself was able to witness the mother’s assessment of sexualised behaviour when she demonstrated the sexualised way the father, she said, ate an orange in front of R and L prior to the parties’ separation, an allegation for which, she asserted, her legal advisers failed to put proof before the court. The “proof” was two handwritten notes the mother produced when allowed to re-open her case.
One of the notes is an original, in blue pen on blue paper, with a number of crossings out and additions in black pen. The mother’s evidence was that she wrote it about four weeks before leaving the father’s N home on 8 July, 2006, after seeing the first solicitor she consulted. It is headed “Inappropriate behaviour in front of kids” and contains a number of illustrations. One is :
. . . sitting on couch with towels eating oranges sexually in front of [L] and [R] then stating he’d do that to me.
The second note tendered is a photocopy of a note written, the mother said, “about 2007 or 2008”, either a year or two years after separation. The relevant part is a phrase at the end of a number of points, which appear to relate to a trip to Lakes Entrance. Marked by an asterisk (which the mother said she made when she gave the note to her counsel on the third day of her cross-examination) it reads “eating oranges in a sexual way”.
Both notes were produced in anticipation of litigation. Having regard to my findings about the distortions and lack of objectivity in the typed version prepared for the May 2008 trial, and the mother’s own account of preparing an inaccurate note for Dr. J, I could have no confidence that these notes accurately reflect a situation.
Further, and without wishing to trivialise the evidence, children and adults on sports fields all around the country could be seen to eat an orange, from its skin, in the way the mother demonstrated.
I place little weight on Ms. M’s professional opinions given her inexperience, her lack of objectivity and her identification with the mother’s case.
I do place weight on Ms. G’s professional expertise and also on her candid acknowledgment of the flaws in her report, the potential for R to have been coached and the impact, on her assessment of the conversation on 30 September, 2008, of the many factors of which she was then unaware.
I place significant weight on the evidence of Ms. D. Ms. D conceded that no-one could say “100%” that R has not been abused. Having looked at the total picture, explored R’s statements and watched her interactions, she believes that R has not been abused. In her opinion, R has heard words used by others, which she has repeated, and R’s age appropriate behaviour has been assessed as sexualised.
I take into account the potential for the father to have understated some of the problems he experienced as a child and young man and that he may have been more anxious and more depressed, than he now recalls or is prepared to admit.
The court does not need to place weight on what counsel for the father called “the eerie similarities” between the mother’s evidence of L’s relationship with her father and that of the father’s with R in order to make findings about the father’s behaviour to R and the risk, if any, he poses to her. What is relevant is the mother’s preparedness to distort evidence and lie, whether to courts and professionals in the litigation with Mr. Belladonna, or to courts and professionals in the litigation with the father.
The mother’s evidence is that she and Mr. Belladonna agreed on orders which implemented a “shared parenting arrangement”. It was not her evidence that she was pressured into that agreement by lawyers, Mr. Belladonna or the father. Assuming that she believed, as a responsible parent, that the orders made were in L’s best interests, she must have abandoned reliance on Mr. Belladonna’s parental deficiencies and his threats to kill, L’s aggressive behaviour, L’s complaints about her father and the fear which, the mother was convinced, L felt but was too scared to display to her father, Dr. J and anyone other than her mother. The apparent disjunction between the consent orders on the one hand, and the copious notes of behaviour observed and statements made by L and her father, and the mother’s advice to Dr. J on the other, illustrates the caution a court needs to exercise when retrospectively assessing evidence created in the periods adjacent to the initial breakdown of a relationship and created to advance a particular position in then continuing and acrimonious litigation.
Balancing all the evidence I do not find there to be an unacceptable risk that R will be exposed to sexual or physical abuse in her father’s care. Further, this is a case where I am satisfied the evidence supports a finding, on the balance of probabilities, that the father has not sexually or physically abused R.
I must find that R is at risk of emotional and psychological abuse in her mother’s care. There is no evidence the mother suffers from any psychiatric or psychological disorder. The court cannot determine the origins of her predisposition to see normal behaviour as sexualised and build castles of abuse on a foundation of objectively unexceptional observations.
On the evidence before the court, it is hard to see in what circumstances the mother might change her mind and accept that R has not been sexually abused and is entitled to pursue a healthy and normal relationship with her father. She has been seeing a psychologist for some years and ongoing counselling or treatment is a matter for her. It is possible that reality (that is, a change of R’s residence) may itself effect a change, and she may be able to view R through a lens which does not distort R’s reality.

ADDITIONAL CONSIDERATIONS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

R is too young for her views to be determinative. Further, the court could have little confidence in any view expressed to her mother, or reported as being expressed to the mother. Ms. D’s evidence demonstrates R’s capacity (not unusual in a child of her age) to say things that are not objectively true and to say things and later deny saying them. R’s attachments are more important than her views and it is the adults who must be responsible for protecting her.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I can find that R has a loving, positive and harmonious relationship with her father. She has a close and affectionate relationship with Ms. E. Ms. O referred to the father’s mother’s involvement with R during sessions supervised by her and their happy interaction.
The mother is convinced that R is fearful of displaying her fear of the father; her apparently affectionate and comfortable interaction with her father is a sham. Ms. D spoke of the capacity to see sadness or distress reflected in behaviour. Having assessed R over a period of two years, she described her as quite a confident and creative child and as an imaginative and fun loving little girl, who is developmentally normal. In Ms. D’s opinion she would certainly have been able to pick up on any fear or anxiety R felt when with the father, or when she anticipated seeing him. Instead, Ms. D observed some anxiety in R’s relationship with her mother, on occasions.
Ms. D readily conceded the possible disjunction between a child’s feelings and his or her behaviour but was confident she was able to gauge from her observations of R whether R was or was not internalising fear. While a child can be told what to say, it is not easy to transpose an adult’s experience of sexual abuse onto a child.
R and her mother have a close relationship. I do not doubt that the mother adores her. However, she has difficulty letting R express her own reality and simply cannot countenance her having a loving relationship with her father.
R has lived with L all her life. Ms. D did not gain the impression the girls were particularly close and R was firm in her views about the things she did not like about L. From the mother’s perspective, the girls are very close and L is very distressed by her sister’s sexualised behaviour and disclosures of abuse.
When R and L were observed in a play session, L did not engage herself in either discussion or play but physically distanced herself by playing quite separately. Ms. D assessed the relationship as distant and somewhat detached.
The strength of sibling bonds can vary from time to time, having regard to the developmental stages of the respective siblings and numerous other factors. There is no evidence of any significant rupture in their relationship and the court can act on the basis that it is unexceptional, if not particularly close.
It is clear L is well aware of the allegations made against the father and of her mother’s concern for R. The court cannot say what is the source of the apparent behavioural problems for which she is receiving counselling, but it is probable that the ambient atmosphere in the maternal home is one of fear and concern about R’s sexual abuse. That must impact adversely on L.

There was little emphasis on R’s interaction with maternal relatives; one of the mother’s brothers is teaching her piano and the court can assume she has comfortable relationships with that side of her family.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)       has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)      to communicate with the child; and
(b)       has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Each of R’s parents has the capacity to look after her physical and intellectual needs. Both are apparently intelligent and creative people.
Ms. D had no concerns about the father’s parenting capacity, were R to move to live with him. She described him as insightful and sensitive to her needs and emotionally available to her; nothing in her observations of them together gave her any concerns about his parental capacity.
Ms. D frankly conceded the inappropriateness of the father’s brusque interaction with R, as described on pages 44 and 45 of Ms. O’s report. Ms. D made it clear that she did not see a heated discussion between the father and Ms. E about the operation of a fan as being abusive.
The father’s submission is that the mother has wilfully and vindictively invented the allegations of abuse, behaviour which strikes at the heart of any understanding of parental responsibility, given the potentially adverse affect not only on R’s relationship with her father, but on her own intellectual, social and sexual development. The court can find no psychiatric illness to which it could attribute the mother’s distortion of reality.
Ms. D was asked whether she believed the mother genuinely held the views she expressed. She responded by saying that “it varies and fluctuates”. The mother’s consistently expressed view was that R had been sexually abused and at times the view appeared genuinely held. On balance, Ms. D thought the views were genuine and that the mother’s starting point was a predisposition to observe R’s behaviour as sexualised. She described it as a factitious disorder.
Factitious means artificially created or developed; see Oxford Dictionary of English (2^nd edition revised). While the court sometimes hears evidence that factitious disorders are analogous to Munchausen Syndrome, or that the latter is an example of the former, Ms. D was not comfortable with that analysis. Her evidence was that the mother believes R to have been abused; as a result of that belief she continues to assess and interpret normal childish behaviour through adult eyes.
The accuracy of the mother’s observation can be gauged from Ms. D’s evidence of the mother’s demonstration to her of R looking at the mother sexually. She demonstrated with what Ms. D described as “a model pout, as if on a catwalk”.
If the court were able to find that the mother maliciously invented the allegations, it might have more confidence in her capacity to resile from them. The thrust of Ms. E’s evidence went not to the question of deliberate invention but to the genuineness of the mother’s expressed belief. While I do not doubt she now genuinely believes R has been abused, I am satisfied she was prepared to do and say anything to achieve her aim of proving that abuse, and that this included the deliberate distortion of events and observations, and telling untruths to professionals and the court. It is more probable than not that she coached R to repeat allegations which she framed. She may have believed the end justified the means; in her mind, the father is a paedophile and evidence had to be manufactured to prove it, as he is too clever to leave a trail.
Whatever her motives, I must find that the mother was prepared to sacrifice R to her own obsessive pursuit of the father. The harm to R is twofold. She has been denied the relationship she should have enjoyed with her father and his family and friends; she has been exposed to interviews and medical examinations and therapeutic interventions without good reason. Fortunately, her youth means she has not been damaged by believing she has been abused, when she has not, and she has been able to express her distress at her mother’s continual focus on the bad things which her mother believes have occurred.
The mother’s conviction of abuse has not waned over time; if anything, she is more utterly convinced. It is hard to see what could make her change her mind.
Whether the mother’s distorted view is the product of malice or genuine conviction, is attributable to something in her own past or to her personal pathology, matters little when assessing the impact on R. I have no hesitation in finding it is emotionally and psychologically abusive to bring up R to believe she has been sexually abused by her father, when she has not, and to deny her a meaningful relationship with him.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
R has lived all her life with her mother and the court must think carefully before changing such a long-standing status quo. Ms. D was confident that R’s short term distress at separation from her mother could be handled, if she is reassured and explanations (such as her mother being on holidays) given during any initial period in which she did not see her mother after a move. She described R as a capable and flexible child and her opinion clearly took into account the strength of the relationship observed between R and the father, and R’s very comfortable relationship with Ms. E.
As for the longer term, R would be able to have a relationship with both parents if her primary home were with her father. If she stays where she is, it is probable her mother will sabotage any orders for time with her father.
Findings have previously been made about the relationship between R and L. I do not doubt R would miss her sister in the short term. Time with her mother could, in due course, be scheduled to coincide with the weekends L spends with her mother.
On the mother’s evidence, the court can find that R is used to her sister going off to spend weekends and holiday times with Mr. Belladonna; the girls are apart for quite a significant portion of their free time. If the mother is right, and L believes R has been abused, that may well inform L’s discussions with R when they are together, as well as when they are with their mother. Removal from a climate in which all discussion of her father is negative, is in R’s best interests.
R is familiar with the father’s N home; it was her home from birth till July 2006 and she has returned there in 2007 and, again, between October 2008 and January 2009. That should assist her in settling. It is probable she will have to change school which is unfortunate. It is her first year of school and no evidence satisfies me she will not be able to cope with starting at a new school in the second term this year.

(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

Ms. D’s evidence was that the mother’s time with R should be supervised in the short term, if R moved to live with her father. She spoke about the potential for a trusted person to be in substantial attendance, at least until the end of 2009. She saw time on one day per fortnight, with some other time in the off week, after school, in the N area, as appropriate in the short term.
Asked about potential supervisors, Ms. D spoke of a paternal family member or professional supervision. The court could not find a paternal family member a viable proposition, having regard to the mother’s commitment to the abuse scenario, and her almost inevitable hostility to anyone seen as supporting the father.
The father and the ICL each submitted that the mother’s time with R should be supervised, for a period.
The mother is not in paid employment. It is probable she has received little child support. Her evidence was of her father, and possibly other family members, paying her legal fees. The court can say little about her financial situation save that, albeit with family support, she has been able to fund lengthy litigation in three courts. If supervision is found necessary, it is probable that funds could be found to pay for it.

(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

The magistrate who heard the mother’s application for an intervention order in late 2006 was not called upon to determine the father’s allegations of physical violence directed at him during the parties’ time together. The parties’ relationship in that period was probably volatile and there were probably many arguments, to which the children were exposed.
It is probable the father was verbally aggressive at times; his response to his frustration with Ms. O was brusque and deliberately so. When a protective worker spoke with the father’s GP, Dr. OS, in early 2008 she was told of his recollection of the father having an altercation with a waiter in 2004 and an incident, “a number of years ago”, when the father was angry and irate with staff at the centre. L recalled arguments when her mother refused to marry the father and the father’s angry response.
It is probable neither parent saw fit to put appropriate boundaries around sexual activities and sexual badinage when they were together.
While the hostility between the parties has not abated, there is no evidence that R is at risk from physical violence (whether directed at her or in her presence or hearing) and no allegations of physical altercations between the parties for many years. Given the credit findings made against the mother, the probabilities support the father’s account of the mother’s behaviour during their time together, but he was probably implicated in arguments and verbally abusive at times. The magistrate findings are consistent with him using threatening words and whatever the volition behind them, the court should not and does not countenance such behaviour.
If a court were to accept the mother’s account of the abuse directed at her and in the children’s presence between 2000 and 2006, it would have to have grave reservation about the mother’s capacity to act appropriately to protect both her daughters from harm resulting from exposure to that abuse. As her account is not accepted, the court need not elaborate on that.
There are no existing intervention orders.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is vital that R is protected from continuing litigation. She was not yet three when her parents separated and, with a few breaks, litigation between her parents has occupied the years since. She needs consistency, stability and security and to be protected from having her welfare compromised by the making of false allegations.
The mother’s contempt for court orders is clear; existing orders were being flouted by her when the trial commenced. If R lives with her there is almost no chance she will see her father, whatever orders the court made. Any professions of compliance by the mother need to be tested against the reality of her present refusal to comply.

(m)any other fact or circumstances that the court thinks is relevant;

It is important that the Court considers the objects and principles set out in s.60B.

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

No party sought an order for equal shared parental responsibility. Ms. D made it clear that she did not see such an order as viable. I find that the presumption does not apply, given the psychological abuse to which R has been exposed in her mother’s home. If the presumption did apply I would be satisfied that R’s best interests demand its rebuttal. In the absence of a parental alliance, and having regard to the mother’s commitment to her conviction of abuse, I am satisfied the father should be solely responsible for issues relating to R’s long term care, welfare and development. Only such an order will protect her from continuing abuse.

CONCLUSION

I am satisfied R should be moved forthwith to live with her father and that there should be a period of almost three weeks in which she does not have contact with her mother. R should then spend time with her mother on each alternate Sunday from 10:00 am. until 5:00 pm., on one occasion after school in the alternate week, from 4:30 pm. until 7:30 pm. and on special occasions such as R’s birthday, Christmas and Mothers’ Day. Until the end of 2009, or such earlier date as the parties agree, that time should be supervised by an agreed person and failing agreement, by a professional supervisor, at the expense of the mother. It is probable neither parent would want Ms. O to be involved and prudence suggests it should be someone else.
From 2010 on, R should spend additional time with her mother. Orders can provide a structure, with the capacity for the parties to agree on a different regime and additional time. As a minimum, R should spend extended alternate weekends with her mother during school terms, from the conclusion of school on Friday until the commencement of school on Monday, plus time during school holidays and on special days.
It is to be hoped by 2010 that the mother’s views may have modified. That may not occur and the court cannot exclude the potential for R to be exposed to the mother’s conviction of abuse once supervision is withdrawn. However, R is getting older and has a developing capacity to differentiate her mother’s reality from her own. She needs an ongoing relationship with her mother and with L and the risks, to her emotional and psychological health, can be offset by the stability and consistency to be found in her father’s home. That said, the court might have to intervene and order no contact if it were satisfied that the mother’s preoccupation was impacting adversely on R, so that the detriment to her outweighed the benefits of time with her mother and sister.
Orders will restrain the mother from taking R to any medical practitioner, psychiatrist, psychologist, counsellor, therapist or like professional, save to a medical practitioner in the case of a medical emergency.
Orders will provide for the mother to be kept advised of R’s school and of her progress there. From 2010 on, the mother can have some involvement in her schooling but orders will restrain her from removing R from school, save as provided in the orders, or with the written consent of the father.
Similarly, orders will provide for the mother to be kept informed of any serious medical problems or injury suffered by R.
I am satisfied the ICL should arrange, at the father’s expense, for R to see Ms. D as soon as practicable after she moves to live with him, so Ms. D can explain to her the nature and effect of the orders. It is important R understands that she is not responsible for any change in her living arrangements and that both of her parents love her. She has spent time with Ms. D over a two year period and that would be more useful than introducing her to another professional, such as a family consultant in this court. The father will be responsible for the expense of that session.

I certify that the preceding
521 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the day of 2009.

…………………………………………
Associate.

[2009] FamCA 254

7 April 2009

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction