DE SILVA & ROGERS

FAMILY COURT OF AUSTRALIA

DE SILVA & ROGERS

[2015] FamCA 936

FAMILY LAW – CHILDREN – Final parenting arrangements – Best interests of the child – Whether the parents should have equal shared parental responsibility or whether the mother should have sole parental responsibility – Whether there is a benefit of a meaningful relationship with both parents – Where there are allegations of physical and sexual abuse –Where there is not an unacceptable risk of harm to the child – Allegations of alienation – With whom the child should live and what time the child should spend with the non-residential parent – Where the mother is restrained from changing the child’s surname – Where the child has expressed a view that she does not wish to spend time with the father – Where it is alleged the child’s views have been influenced by the mother – Whether the child’s relationship with the father can be rekindled through therapy.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAC, 69ZX(3)(b)
Evidence Act 1995 (Cth) ss 177, 140(2)

De Silva & Rogers [2009] FMCAfam 824 (unreported, 18 August 2009)
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
In the Marriage of Reihana (1980) 6 Fam LR 134; (1980) FL 90-835
In the Marriage of Schenk (1981) 7 Fam LR 170; FLC 91-023
Johnson & Page [2007] FamCA 1235 at [65]
M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) 82 ALR 577
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright (2007) Fam LR 518
W & W (Abuse Allegations: Unacceptable Risk) 2005) FLC 93–235.

APPLICANT:

Mr De Silva

RESPONDENT:

Ms Rogers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

5187

2008

DATE DELIVERED:

30 October 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

3, 4, 5, 6, 7, 10, 11, 13 and 14 November 2014, 29 June 2015, 1 July 2015 and 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

COUNSEL FOR THE RESPONDENT:

Ms Goodchild

SOLICITOR FOR THE RESPONDENT:

Matthew Folbigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

All previous Orders in respect of V born ... 2006 (“the child”) are discharged.
The child live with the mother.
The mother have sole parental responsibility for the child with the exception of the child’s name, and on condition that the mother will keep the father informed in writing in relation to the following:
(a)The child’s education;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)Any changes to the child’s living arrangement.
The mother is restrained from changing the child’s surname from “De Silva”, and shall ensure the child uses the surname “De Silva” including in common daily usage.
The mother do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically.
The mother shall keep the father advised and updated in relation to any serious medical issues affecting the child.
The father shall be at liberty to forward birthday and Christmas cards and gifts to the child, and the mother shall ensure that all cards and gifts are provided to the child, and shall be kept by the mother until such time as the child may wish to see them.
In the event that the child expresses a wish to communicate with, write to and/or spend time with the father, the mother shall facilitate that.
That:
(a)Within 7 days of the date of these Orders the father shall, if he wishes to, send to the Independent Children’s Lawyer a letter addressed to the child.
(b)Within a further 7 days the Independent Children’s Lawyer shall arrange for the child to be seen by herself and, if available, Ms P.
(c)At the meeting described in subparagraph (b), the Independent Children’s Lawyer (and, if available, Ms P) shall explain to the child the Orders made in these proceedings and, if the letter referred to in subparagraph (a) has been provided by the father and approved by the Independent Children’s Lawyer, provide to the child that letter.
(d)The mother is to do all things to facilitate the child meeting with the Independent Children’s Lawyer (and, if available, Ms P) pursuant to this Order.
(e)The mother is restrained from discussing with the child the Orders made, or the outcome of the proceedings, until after the child has met with the Independent Children’s Lawyer (and, if available, Ms P) as contemplated herein.
(f)The mother shall do all things reasonably possible to ensure no other person discusses with the child the Orders made, or the outcome of the proceedings, until after the child has met with the Independent Children’s Lawyer (and, if available, Ms P) as contemplated herein.
All outstanding applications and cross-applications in respect of the child are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym De Silva & Rogers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5187 of 2008

Mr De Silva

Applicant

And

Ms Rogers

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long-term parenting arrangements for V (“the child”), a little girl of nine. The child’s parents Mr De Silva (“the father”) and Ms Rogers (“the mother”) were in a de facto relationship for six and a half years and separated when the child was seven months old.
Following earlier contested parenting proceedings, orders were made in August 2009 for the child to live with her mother and spend defined time with her father.
In September 2011 the child’s mother says that the child made a disclosure to her that her father had sexually assaulted her.
The father was subsequently arrested and following a trial, acquitted of sexual assault.
The mother continues to believe that the child was sexually assaulted by the father and that on this basis there is an unacceptable risk of harm to the child if she were to spend any time with him. The father denies that he in any way sexually abused the child or represents an unacceptable risk of harm to her. He contends that the mother has alienated the child from him.
At the commencement of these proceedings the father proposed that the parents share parental responsibility for the child equally, that the child live with her mother and spend time with him on an increasing regime, commencing with two hours each alternate weekend and building to a week about arrangement after about a year.
The child has not spent any time with her father since December 2011. She has for some time strongly opposed spending any time with him or having contact with him.
After nine days of hearing in November 2014, interim orders were made by consent for family therapy to be provided to the child for the purposes of supporting her reintroduction to her father and supervised time was also to occur.
Family therapy was not successful. The child briefly spent time with her father but then once again strongly opposed spending time with him or engaging in any further therapy.
Prior to the resumption of the hearing in June 2015, the father amended his application to seek orders that the parents share parental responsibility for the child, that the child live with him, that the mother seek psychiatric treatment and that the child not spend time with or communicate with the mother or her maternal family for a period of six months. He proposes that supervised time with the mother commence if, in the opinion of the treating psychiatrist, the mother will not continue to alienate the child from him as he alleges she has done.
The mother continues to maintain that there would be an unacceptable risk of harm to the child if she were to spend time with the father. Her proposal is that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.
The Independent Children’s Lawyer (“ICL”) largely supports the mother’s proposal but proposes that orders exclude the issue of the child’s name from the exercise of sole parental responsibility and restrain the mother from changing the child’s surname. The ICL’s proposal also envisages orders which allow the father to forward birthday and Christmas cards and gifts to the child and require the mother to provide all such cards and gifts to the child and to facilitate any wish the child may express to communicate with or spend time with the father. The ICL also proposes specific orders permitting the father to send a letter addressed to the child through the ICL and for the ICL to arrange for the child to be seen by herself and a family therapist to explain the orders made in the proceedings and to provide any such letter from the father to the child. The ICL’s proposed orders also include restraints upon the mother from discussing with the child the orders made or the outcome of the proceedings prior to the meeting with the ICL and therapist.
The question for me to determine is whether any of the proposed suite of orders or some other orders are in the best interests of the child.

Background

The mother and father, who are now both 48 years old, met on an internet site in early 2000 when they were each in their early 30s. At that stage, the father lived in Melbourne, and the mother, who was married but separated from her husband, lived in Sydney. The mother moved to Melbourne and started living there with the father in his home from about late 2000.
The mother had several miscarriages and in October 2005, became pregnant with the child. It is the father’s contention that the mother never intended that they live together as a family.
In January 2006 the mother moved back to Sydney when she was a few months pregnant and obtained a job working in child protection. The father was unable to move as he needed to sell his house in Melbourne and look for a job in Sydney. The father did, however, travel to Sydney on a number of occasions over the following months and was present when the child was born.
In October 2006 the father bought a house at Suburb C which was registered in both parents’ names and the mother and the child started living at this home. The father and his parents remained living in Melbourne but visited the mother and the child over Christmas in 2006 and over the Australia Day long weekend in 2007.
There was an incident at the family home on 26 January 2007 which resulted in the father being arrested for malicious damage and an Apprehended Violence Order (AVO) being made against him. The parties separated for the first time on the following day and the child remained living with the mother.
In March 2007, the mother had the child baptised but did not invite the father or his parents to the baptism.
In April 2007 the mother arranged for her mother, her mother’s partner and her step-brother to move into the C home. The father was prevented by the AVO from coming within 100 metres of the mother’s home address or approaching the mother.
In July 2007 the father obtained a job in Sydney. He rented a house near Suburb C and started spending time with the child every Saturday afternoon for two and half hours.
In early October 2007, the mother successfully made an application to vary the AVO so that the father was no longer prohibited from approaching the home or the mother. In January 2008, the father moved into the C home with the mother, though each of them maintained separate bedrooms.
From January 2008, the father worked hours that allowed him to be involved in the daily care of the child while the mother worked full-time.
The AVO expired in February 2008. On 16 March 2008 there was a dispute which resulted in the mother leaving the C home with the child and moving to her mother’s home. On 17 March the father and the mother’s half-brother were involved in an altercation at the C home.
On 23 April the mother made a statement in relation to the two March incidents and sought an AVO for her protection against the father. Although an interim order was made on 20 May, in July 2008 the application was dismissed in the Local Court.
The maternal family moved out of the C home and the paternal grandparents moved in with the father.
In July 2008, the mother met her current husband, Mr M. In October 2008 the mother and the child moved to a property owned by Mr M but did not inform the father of her new address and changed solicitor so the father was unable to contact her. The mother then stopped making the child available to the father. The father brought an application for location orders and commenced the first set of parenting proceedings.
In December 2008 orders were made in relation to the child with the consent of the parents. The child was to spend time with the father on a weekday for a few hours and changeovers were to occur at a contact centre.
The first parenting proceedings were heard in May and June 2009 and judgment was delivered on 18 August 2009. The orders provided for the child to live with her mother and spend time with her father on an increasing basis.
In August 2009, the mother married Mr M.
From August 2009, the child generally spent time with the father in accordance with the orders on a Tuesday afternoon after childcare until 7 pm and for 24 hours each alternate Saturday from 9 am.
In September 2009 the mother gave birth to her second child, B, the son of herself and Mr M.
The father appealed against the parenting orders, though the mother did not participate in the appeal which was heard in November 2010. Judgment was delivered on 17 June 2011 dismissing the appeal.
The father travelled to Europe with his mother between late March to late May 2011 to visit a dying aunt and did not see the child during this time.
On Sunday 25 September 2011 the mother says she received a complaint from the child that the father had sexually assaulted her and the mother made a complaint to the Community Services helpline.
On 30 September 2011 the child was interviewed by the Joint Investigation and Response Team (“JIRT”) and made disclosures of sexual abuse by the father.
On about 9 and 10 October, the mother says the child made further disclosures concerning sexual abuse. She was re-interviewed by JIRT on 11 October.
On 12 October 2011, a search warrant was obtained for the father’s home, which was executed the following day and numerous items were seized.
On 20 October 2011, the mother provided a statement to police concerning the child’s disclosures.
On 14 November 2011, the father commenced these proceedings seeking interim and final orders.
On 15 December 2011, interim orders were made providing for the father to spend supervised time with the child on five occasions in December 2011 and January 2012. The child spent time with the father on 19 December and 23 December. On 2 January 2012 the father was due to spend time with the child but she did not pass into the father’s care.
A provisional Apprehended Violence Order was issued on 13 January 2012 and included a condition that the father not approach the child by any means except through the father’s legal representative, but the family law orders were not suspended.
On 27 February 2012 the father attended a police station at the request of police and was interviewed. Following the interview he was arrested and charged with assault, sexual assault of a child under 10 and possession of child abuse material (child pornography) and remained in custody until 6 March 2012. Subsequently bail conditions were imposed prohibiting the father from contacting or approaching the child by any means.
In September 2012 the father was committed to stand trial. The mother gave evidence at the committal proceedings.
In early 2013, the father stood trial for two counts of sexual intercourse with a child under 10. The father was acquitted and the prosecution were ordered to pay the father’s costs, on the basis that it was not reasonable to have instituted proceedings, due to inherent weaknesses in the Crown case. The count of possessing child abuse material was discharged on 15 March 2013 when the DPP directed that no further proceedings be taken in the matter.
In July 2013, an Expert Child Family and Adult Psychiatrist, Dr MM, interviewed members of each of the parents’ households. Dr MM’s report dated 16 September 2013 was released in October 2013. He recommended that the mother have sole parental responsibility for the child, that the child remain “in the mother’s primary care” and did not support the re-establishment of contact with the father “despite the probability that the father’s assertions of innocence and that [the child] had been alienated were correct”.
On 16 December 2013, Dr MM provided a second report as a result of a letter which had been received from the father.
The first nine days of the parenting proceedings were heard in November 2014.
At the completion of the nine days hearing and with the consent of the parties, the matter was adjourned for further hearing. Orders were made in an attempt to rekindle the relationship between the child and her father through the provision of therapy to the child and through some supervised sessions of time with the father after a number of sessions of therapy.
From November 2014 to June 2015, the father attended four individual sessions with the therapist, Ms P. The child attended nine individual sessions with Ms P from November 2014 to February 2015. The father and child had a joint session on one occasion on 9 February 2015 and the child had two further individual sessions with the therapist following that joint session.
On 14 March 2015, 28 March 2015 and 11 April 2015, the child was to spend supervised time with the father but refused to attend.
On 31 March 2015, Dr MM saw the parties for a final time. On 8 April 2015, Dr MM wrote his third report which was released on 30 April 2015.
There were two days of further hearing on 29 June 2015 and 1 July 2015 and final submissions were made on 13 August 2015.

The matters in dispute

Has the mother disrupted the relationship between the child and the father and caused the child to be alienated from him?

It is the father’s contention that the mother has not ever supported the child having a relationship with him. He contends that the undisputed facts demonstrate the mother’s lack of support for the relationship prior to the August 2009 parenting orders. From that time, it is the father’s case that the mother significantly disrupted the child’s relationship with him until the incident in late September 2011 and that since that date the mother and members of her household have further disrupted the relationship so that the child has become alienated from him.
It is the mother’s case that she promoted the child’s relationship with the father at all times and that prior to the child’s disclosure in September 2011 she only cancelled contact between the child and the father when there was a reasonable excuse, such as illness. After this time, it is the mother’s case that the child has chosen to distance herself from the father. In circumstances where the mother believes that the father has sexually assaulted the child, she has not promoted that relationship in accordance with the child’s wishes except during the adjournment in the proceedings when she at all times cooperated with the orders for the child to receive therapy and spend time with the father.

Events prior to the first parenting proceedings

It is the father’s case that from a short time after the mother became pregnant she moved to Sydney knowing it would be difficult for him also to move from Melbourne. He contends that the incident at the family home on 26 January 2007 which resulted in him being arrested and charged with malicious damage and an Apprehended Violence Order (AVO) being made was an exaggerated reaction to events in which the mother said provocative things towards him. The issuing of the AVO was the reason that the parties first separated and the mother remained living in the home the father had purchased in Suburb C. The father did not return to the home until January 2008 and this arrangement only lasted a short time as a dispute in March 2008 resulted in the mother leaving the C home with the child and moving to her mother’s home. It is not in dispute between the parties that the mother did not make the child available to spend time with the father for some time until he commenced the first set of parenting proceedings including an application for location orders.

The mother’s position is that the relationship between her and the father broke down as a result of the father’s own behaviour and obtaining the assistance of police and an AVO was an appropriate way of responding to the father’s violence. The mother disputes the position that she made it difficult for the father to have a relationship with the child from the outset. She contends that she had a reasonable excuse for any occasion on which she withheld the child and that on occasions she provided the father with makeup time. She also contends that she had a co-operative relationship with the extended paternal family.
So far as the period of time prior to the first parenting proceedings is concerned, I am of the view that the undisputed facts support the father’s contentions to a greater degree than the mother’s. The circumstances in which the mother invited her brother and mother to live with her in the C home which the father had purchased but was unable to live in himself, and the mother arranging for the child to be baptised but not inviting the father or paternal family are in my view matters of significance that support the father’s contention. It is likewise significant that shortly after the expiry of the AVO there were two further incidents at the C home which the mother used as the basis of obtaining a further AVO for her protection against the father and although interim orders were made these applications were ultimately dismissed. I also attach weight to the fact that the father was unaware of where the mother was living and he spent no time with the child for several months in 2008.
In the course of submissions the parties’ legal representatives did not wish to be heard against my indication that I proposed to adopt the findings of Federal Magistrate Lindsey (as his Honour was then known) in the first parenting proceedings with respect to this period of time pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) (“the Act”). As those findings arose from a more extensive consideration of more detailed evidence of those events and are consistent with my views on the respective cases of the parties relating to this period, I adopt the following findings in the first parenting proceedings[1]:
[1] De Silva & Rogers [2009] FMCAfam 824 (unreported, 18 August 2009).
51.      The father gave the impression in his evidence of being highly affronted by the steps the mother had taken in 2007 and again in 2008 (unsuccessfully) to obtain an Apprehended Violence Order against him and to report him to the police for malicious damage in 2007. He was deeply offended by her doing these things, as he has been by other aspects of the mother’s behaviour and, in particular, her moving home without notice to him in 2008 and her lack of co-operation in facilitating time-spent with his parents when they visit from Melbourne. He is deeply distrustful of her.
…
58.      The mother’s conduct in the relationship can be characterised as having a high degree of peremptoriness. She moved from Sydney to Melbourne very shortly after meeting the father. She moved from Melbourne back to Sydney before the birth of the child in circumstances of some surprise to the father. Her attitude towards the father and the issue of a relationship with him has ebbed and flowed since the parties were together in Sydney. After hearing her cross-examined I was left with the impression of someone who exhibited significant high-handedness in the way in which she dealt with the father and, to some extent, that attitude still informs the way she deals with him. Her decision to move to Sydney whilst pregnant with the child was reached without her taking into account the obvious difficulties the father would have in following her. He worked in Melbourne. He owed [sic] real property there. His parents lived in the [sic] Melbourne. The significant impact her move would have upon him simply does not seem to have been an issue that mattered to her.
59.      She is critical of him for the fact that he made very few trips to Sydney prior to the birth of the child, having been solely responsible for bringing about the position where the prospective parents lived in the different States.
60.      She was obliged to concede in cross-examination that the father continued to provide significant financial support to her after her move from Melbourne.
61.      The unfortunate incident on Australia Day 2007 was precipitated by an argument between the parties. The father says that the mother made the following remark: “I am ashamed that you are the father of my daughter”. He says that that gave rise to him flinging his laptop to the ground. The mother denied having made that remark or anything like it. She says that the father was enraged but that it was not caused by anything she had said. I am not in a position to make any specific findings about the extent to which the mother contributed to the father’s behaviour. Whatever she said; his reaction was inappropriate and must have been frightening to both the mother and the child. She said that she and the child were in the dining room adjacent to the kitchen and family room where the laptop was thrown. She called the police. The father waited calmly for the police outside of the home. Subsequently, he pleaded guilty to the charge of malicious damage. It was clear that she would have been prepared to give evidence against him if he had not. The fact that the mother was holding the child when the father behaved in this extremely angry fashion, as I have indicated, must have been frightening to some degree but he appears to have calmed down immediately afterwards. There is no history of violence in the relationship. The parties give competing accounts about how it came about that the mother was struck by [sic] father whilst he was driving and she was in the passenger seat on an occasion in Victoria and I am unable to make any specific findings about whether the father was exercising a form of self-defence on that occasion. But incidents of this kind were isolated. The relationship, after all, subsisted for approximately six years in Melbourne.
62.      Arranging for the intervention of the police in the way the mother did was probably very unhelpful. It certainly poisoned the relationship between the parties thereafter. There was in the mother arranging for the involvement of the police on that occasion as there was in 2008 (I will come to that in a moment) an element of manipulative behaviour on her part. She does not appear to have balanced the effects of introducing the police to the relationship she had with the father of her child, against the extent to which it would make relations between them and their communication in relation to the child more problematic.
63.      The Apprehended Violence Order kept the father away from his own home for twelve months. It needs to be noted that he did not oppose the making of a final order. I do not accept the mother’s evidence that she sought that order because she was concerned that if she did not the Department of Children’s Services in New South Wales would have in some way intervened to remove the child from an abusive environment. That was clearly never going to happen. The mother’s evidence in that regard was pious and self-serving.
64.      The property from which the father was excluded by the operation of the Apprehended Violence Order was one that had been purchased with his money, although the mother was on the title. Without reference to him, she permits her brother and mother to move into her home shortly following his departure. She arranges for his furniture to be returned to Victoria over his objections. It is not until May 2007 she begins to contribute to the mortgage repayments notwithstanding her occupation of the property. She does not seek any financial contribution to the mortgage from her family members.
65.      The father, of course, suggested that in the later part of 2007 he agreed to go to anger management therapy as the quid pro quo for the mother agreeing to seek assistance in relation to issues of money matters.
66.      The mother has seen a psychologist since the parties separated but she says it was in relation to dealing with issues relating to the break up of the relationship and to gain assistance in dealing of the effect of the throwing of the laptop incident upon her.
67.      Seeking counselling following the break up of a relationship is hardly controversial but I have a great deal of difficulty in accepting that the throwing of the laptop to the floor, as angry and as frightening as that could have been at the time, was a matter that required therapeutic assistance. The co-habitation between the parties at the home between January and March 2008 was obviously unhappy. There was enough evidence in the form of SMS communications between the parties and in the evidence of the father (which I accepted on this point) for me to find that the mother was prepared for him to exercise responsibilities for the care of the child when she was unexpectedly detained at her employment. The father modified his working hours to enable him [sic] collect the child from day care centre in any event. The mother’s working hours since the last separation of the parties are such that she has to call upon the assistance of her mother and of Mr [M] from time to time in terms of their exercising responsibility for the child. She is a parent who also has a full time job. Assistance from another person is obviously necessary from time to time. In any event, in March 2008 after an argument which seems to have been precipitated refusing (sic) to fall in with the father’s request that she return home on an urgent basis to enable him to attend to his own work duties, the parties separate. The mother once again, I find, without any reasonable grounds for doing so, involves the police in the disputation. This time the apprehended violence order she seeks is refused by the Court.
68.      She ought to have reflected upon the extent to which an apprehended violence order would complicate matters especially given her insistence at that time that any time the father spent with the child be supervised by her. The dynamics of the father having an opportunity to spend time with the child is not a matter she takes into account in her decisions to involve the police in the domestic disputation of the parties.
69.      The second apprehended violence order application was only made by the police in or about May 2008 after what I find to be significant lobbying by them of the mother for them to do so. It was dismissed by the … Local Court in July 2008.

Events following the first parenting proceedings

Following the first parenting proceedings and prior to the date of the sexual assault allegations, it is the father’s case that the mother continued to be reluctant to support the child’s relationship with him. In his affidavit he says that the mother cancelled the child’s time with him on seven occasions between August and December 2009, on 15 occasions in 2010 and on four occasions in 2011. It is the mother’s case that she only cancelled such time when there was a genuine reason such as the child’s illness.
I am of the view that there were occasions when the mother failed to produce the child to the father so that they could spend time together without a reasonable excuse. For example, on three occasions the mother cancelled the child’s time with her father at around the time of the birth of her second child. The mother agreed under cross-examination that the father had offered to pick the child up at this time but the mother said that the contact time did not go ahead because she wasn’t “feeling up to producing her” and the child was very emotional. On another occasion the father saw the child with her grandmother out in a shopping centre on a day on which the mother had said that the child was too sick to spend time with him.
The mother also gave evidence in her affidavit and particularly under cross-examination of allowing the child a great deal of autonomy in relation to spending additional time with the father outside the orders and that the child had an understanding of “court ordered time” which, in my view, was inappropriate for a child of her age. The mother also gave evidence of the child making her own choice to adopt the mother’s husband’s surname in addition to her own and that it had not occurred to the mother to consult with the child’s father about this matter as it was “[the child’s] choice”. I formed the impression that the mother inappropriately, given the child’s age, allowed the child to make decisions relating to her relationship with her father. These decisions were, in fact, a reflection of the way the mother felt about the relationship between the child and the father.
It is the mother’s position that the relationship between her and the father was at times quite cooperative. She relies upon the undisputed evidence that she provided assistance to the paternal grandmother in the care of the paternal grandfather as his health deteriorated and he was required to enter a nursing home, especially when the father and the paternal grandmother visited Europe in March to May 2011. The mother also relies upon some of the text message communication with the father which is cordial.
The father did not agree that there was a reasonable level of trust between him and the mother in 2010 and 2011 and attaches particular weight upon an SMS message that the mother sent to him which he interpreted as a threat relevant to the later allegations of sexual assault. It is not disputed that the mother sent a text message to the father on 27 June 2010 in the following terms:
Baseless rantings yet again. You need professional help. You continue raving about things when you still have everything [the child] and I owned. I am not debating you a proven liar in texts. My daughter tells me you hurt her regularly so don’t go playing that game [father’s first name]. I have proof of whatever I need to prove when I choose to do so. Do not continue to contact me in this manner.
Under cross-examination the mother said that this text message was a reference to the child having complained that the father had smacked her. She denied that it was a warning to the father that “if he got out of line” she would make the allegation that was made in 2011.
The mother suggests generally that the child was reluctant to see the father and expressed this to her from time to time. The father does not dispute that the child appeared reluctant in the mother’s presence at changeover time but says that the reluctance dissipated as soon as the mother left.
The paternal grandmother also gives evidence of a conversation she had with the child to support the father’s contention that the mother did not support the relationship between the child and the father. She said that when the child was “three and a bit” the child told her that she was not allowed to kiss the father and if she did her mother said she “would put her out and she would never see the mother and the brother”.
It is the father’s position that the mother’s lack of support for his relationship with the child prior to the first parenting proceedings, after the first parenting proceedings (as discussed in paragraphs 60 - 67) and after he ceased spending time with the child is evidence that the mother has alienated the child from him. He also relies to a great degree in this regard upon the opinion of Dr MM that the child has been alienated by the mother against him. It is the mother’s contention that the child was reluctant to spend time with the father prior to the sexual assault allegations and that this reluctance understandably intensified following the sexual assault. Dr MM’s opinion that the child has been alienated from the father, results from his assessment of the parties in the context of those allegations. In these circumstances, the parents’ contentions about alienation must be considered alongside the sexual assault allegations.

The sexual assault allegations

It is the mother’s allegation that on 20 September 2011, the father sexually and violently assaulted the child by licking her vaginal area, putting salt and ice on her vaginal area, inserting his finger in her vagina and anus, forcing the child to stand up and dragging her back when she attempted to crawl away and bruising and choking her. The mother also contends that the father took photographs of the child naked and of the child’s genital area in about 2011 and forced the child to view these images on his computer. The father denies abusing the child sexually or in any other manner on these or any other occasions.

20 September 2011

According to the father’s affidavit he collected the child from her childcare centre at about 3:45 pm on 20 September 2011. After playing for about an hour in a local park he then took the child home where his mother and father were both present. At home he took the child to the media space, an open area between two bedrooms on the first floor and put on a movie for her. He then went out to buy particular chips that the child likes from the supermarket and while he was gone his mother was downstairs at the home in case the child needed her. The father said he arrived back home at about 5:45 pm and went upstairs, gave the child the chips to eat and saw that she was still watching her movie. He then went downstairs to prepare the child’s dinner and took it up to her to eat. The father then finished cooking his own meal and about 10 minutes later joined the child in the media area and ate his dinner there with her. He said his mother came up to check that the child was actually eating her dinner. The father said that the mother arrived at about 7:00 pm to collect the child and that he cannot remember anything notable occurring at that changeover.
Under cross-examination the father remained firm about all of his evidence, and he was not challenged about matters such as time events occurred, his trip to the supermarket and the like.
The father denied all aspects of the alleged assault upon the child. He confirmed that his parents were at home at all times and said that when he and the child were in the media space watching television his mother came up to see them as she liked spending time with her granddaughter. Overall, the father described his time with the child on 20 September 2011 as uneventful.
The father was cross-examined by the ICL about the technology required for the child to watch movies such as on the day on which the alleged events occurred. He said that he had downloaded a number of Barbie movies to his computer and an external hard drive and had to navigate on the computer between files using a remote control to identify the correct movie. The father said that the child did not have the capacity to read the directories and know which buttons to press in order to put a movie on for herself. He was asked whether it may have been possible for the child to have connected to an external hard drive on his computer (where pornographic material was stored) on the night in question when he was absent at the shops. He said that he did not believe that the child had the capacity to have done so. He explained that this would have required the child to stop the movie, unplug the computer, choose a particular external hard drive, plug it in and to have developed the capacity to navigate and click on items. She also would need to have the capacity to unplug the hard drive and plug back in the original movie [which she was still watching when he returned].
The paternal grandmother corroborates the father’s version of the events of 20 September. She also says that she is aware that it has been alleged that her son sexually abused her granddaughter on 20 September 2011 and that she and her husband witnessed him doing that. The grandmother described this as “a preposterous and wicked lie” and said that if such an event had occurred she would have called the police immediately and had her son charged herself as she cannot understand how paedophiles could abuse young children and finds the crime disgusting.

In her affidavit, the mother says that when she went to collect the child from the father on 20 September the child was walking slowly down the stairs, had her arm across her stomach and complained that her tummy hurt. She also says that the child walked past the father and did not kiss him when requested to do so. The child did not have any dinner when they arrived home, put on her pyjamas and went to bed without a shower. She said that other family members noticed over the next couple of days that the child was moody.
When asked about the child holding her arm across her stomach when she was collected the mother agreed that the child and other family members had had gastro the week before and had been taken to the doctor. She agreed she was not too surprised about the child complaining she had a sore tummy. The mother agreed that she had some involvement in the showering of the child each day following 20 September and she did not observe any bruising or anything on the child’s body when she was undressed.

24 September 2011

The mother says that on the following Saturday, 24 September, when she took the child to the father’s house the child said she did not want to go and was clingy and reluctant. The father agrees that the child was reluctant to come across to him. He said that the mother took about 10 minutes to say goodbye to the child. After the mother left, the father said that he and the child went upstairs and started playing an electronic game. After they had been happily playing together the front door bell rang and the father found that the mother had returned to the house with a couple of jackets that she had forgotten to bring earlier.
The father and child then went on an outing with the father’s friend and his two children for a few hours and returned home at about 2:00 pm. The father’s friend who accompanied the father and the child on the outing gave evidence that on that day the child was affectionate and comfortable with her father and at no time was quiet, reserved or withdrawn or acted differently to the way she acted on previous outings.
When they arrived home on 24 September, the father says he set up a movie for the child to watch and had a nap while his mother cared for the child. The child and the paternal grandmother decorated a cake together as a surprise for the father. The father then says he made dinner for the child, they ate upstairs in front of the TV and after dinner he assisted the child to have a bath and helped her to change into her pyjamas. At 7:00 pm the father said he rang the mother on the speaker phone and the child said goodnight to her and others at the mother’s household. He put the child to bed at about 8:30 pm after telling her a number of bedtime stories. After he had kissed the child goodnight she requested another goodnight kiss.

25 September 2011

The following day the father says the mother arrived to pick the child up at about 9:30 am. The father described the mother as arriving “with a real attitude” and that she said to the child “now you’re going to spend time with your real family”. When told it was a celebration day and that the child had helped with a cake the mother said nothing. The father says that he did not want to create a situation in front of the child so he telephoned the mother about an hour later and said “[Mother’s first name], at handover and handback you came with a real attitude. Could you please not do that in future” to which the mother replied “Fuck you” and hung up on him. The father said that the mother sent the following SMS at 10:18 am:
I ask that you have my child clean and dressed ready to go when she is due to be picked up. She had yesterday’s clothes on and jam down the front of her. You had not even made sure her top was wiped or her mouth clean. I always make every effort to make sure [V] is dressed in appropriate clothing for any activities I am aware of you taking her to. I even made the effort to call back yesterday with two warm coats in case you did proceed to take her to Luna Park. It seems that having her ready and looking au (sic) least clean is beyond you. Do not ever call me again and tell me about my so called attitude.
The father said that at 11:12 am he responded with the following SMS:
Oh dear, [mother’s first name], I dismiss what you have written. Please, in future, provide full change of clothes for the child to avoid her having to wear any items twice. Also please don’t abuse me in front of my daughter. It isn’t healthy for her and not becoming of you. I don’t appreciate you saying “f*ck you” to me when I am sure [V] was in hearing distance. [V] had an excellent time with us again this weekend. Tell her I love her and that I got Little Big Planet from the shops for us to play with in the future. Also, that we’ll play more with … on Tuesday. Cheers [father’s first name].
The father remained firm as to the events of 24 and 25 September and his mother corroborated his account.
The mother says that on 25 September, when she attended the father’s house to collect the child she noticed that the child was dressed in the same clothes as the day before and that her hair was untidy.
The mother says that subsequently her mother made comments about the child’s untidy state of dress and that when they arrived home the mother’s husband also asked the child why her clothes were so grubby. The mother then says:
[The child] did not reply and [Mr M] asked her the same question again. She said something but I could not hear her. I said Sorry [V] what was that? [The child] said I don’t want to get undressed in front of Daddy …. I didn’t want to be naked I said Why? [The child] said Because he licked my fanty
The mother says that the following then occurred:
I knew that [the child] was talking about her vagina as ‘fanty’ is one of the words we use for vagina, it is a word my mother uses. [The child] used her head and mouth making a licking motion, thrusting her tongue as she said ‘because he licked my fanty’. I said When did this happen? [The child] said Last time I was there, not last night I said Do you mean Tuesday? She said Yes, mummy, a couple of days ago I said Where were you when this happened? She said Upstairs in the lounge room we were watching Island Princess I said Who were you watching Island Princess with? She said Daddy … I said Was there anyone else in the room with you? [The child] said No, just daddy …. He licked my fanty on the inside and on the outside I said How did he do that? She said He was putting his hands under my bottom and trying to get my dress up. I kept wiggling so he couldn’t. He stood up, stood in front of me and I tried to crawl away. He pulled me back. [The child] pointed to her right thigh area and said He pushed me back on the sofa and pulled my pants down.
I said Then what happened? She said He put his hands on my legs. [The child] put her hands on the inside of her thighs and opened her legs. She said He licked my fanty on the inside and the outside. I said Then what? She said He did that for a while until his mummy came upstairs. I said Then what happened? She said Nana … said, ‘what are you doing to that child?’ Daddy … said ‘I’m licking her.’ Nana … said ‘get away from her and pull up her clothes.’ She made daddy sit at the other end of the sofa. They were yelling and saying their own words.
I said Were they talking in [a European language]? She said Yes I said Then what happened? She said Daddy … said it was 7 hours and then you came. I said Anything else happen? She said My tummy hurt. I said Yes.
The mother said that she told the child that she was safe and then said:
I need to talk to people who do a job like me and they may want to talk to you. Those people they work with the police. This is not your fault. [The child] said Oh good, when can I talk to the police?
The mother said she then took the child upstairs, washed her face and brushed her teeth and put her in clean clothes. She then contacted her boss at DOCS. The mother then rang her mother and told her of the child’s complaint and asked her mother to come over. On the same afternoon the mother said she contacted the DOCS helpline to report the child’s disclosure and also disclosed that she was an employee of the Department to ensure that her colleagues who were attached to the relevant Joint Investigation Response Team (JIRT) were not involved in the investigation.
The maternal grandmother also gave evidence that she observed the child to be dishevelled and grubby on 25 September 2011. According to her statement she later received a phone call from the mother (on her way to lunch) in which the mother told her that the child had disclosed that the father had sexually assaulted her. According to the grandmother’s affidavit when she arrived at the mother’s home at about 3:30 pm the child said to her words to the effect of “[The father] licked my fante nanny and it made me feel yucky mum’s getting the police.”
Under cross-examination the mother denied sending the father a message which included the words “Fuck you”. She agreed she had sent a message to the father at 10.18 am from the pharmacy which she went to after picking the child up before going to her mother’s. Although her mother commented about the state of the child’s dress the mother agreed that the child made no disclosure at her mother’s house.
The mother said that the child made the disclosure about the sexual assault in the afternoon at about 12 o’clock. When taken to her evidence at the criminal trial when she said the disclosure was on Sunday evening she said that (this evidence) was incorrect.
The mother also asserted under cross-examination that the child had alleged that the father choked her when she made her disclosure on 25 September and said that it was “an oversight” not to have put it in her police statement.
The mother agreed that she did not ask the child on 25 September after her disclosure if she was hurt, if there were any scratches or bruises and she did not look for injuries. When the mother changed the child’s clothes after the disclosure she also did not look for bruises, scratches or marks. The mother also agreed that she did not take the child to the doctor the following day as the child did not complain of pain and or about being hurt. She also agreed she did not see bruises on 25, 26 or 27 September, nor did the child complain about soreness or pain on those dates.
The mother was cross-examined at length about her evidence that the child was wearing the same clothes on Sunday 25 September as she had been wearing on Saturday 24 September. The issue of the child’s clothing on the day of the disclosure is a matter of significance as it is the mother’s case that questions about the child’s clothes triggered the disclosure.
The mother was shown a photograph with a time and date stamp of 2.00pm 24 September 2011, apparently of the child’s reflection in a television. She agreed that the child was wearing different clothes to those in which she was dressed on 24 and 25 September. The mother was later shown a photograph which bore a date and time stamp indicating that it was taken on Saturday night [24 September 2011]. She agreed that it depicted the child wearing her pyjamas and was taken in the media area of the father’s home.
When cross-examined about her understanding of the different clothes the child had worn over the 24 hour period, and the child not wanting to be naked in front of her father, the mother said that she had also asked the child questions about bathing on the previous night. The mother agreed that this conversation was relevant to the investigation and believed that she had told the police about it. When shown her police statement, the mother agreed that it did not include this conversation.
The mother’s husband, Mr M, said that on a non-specified date in September 2011 he saw the mother and child return home from time with the father and observed that the child’s hair was messy and her clothes looked grubby. In his affidavit his account of the child’s disclosure is virtually identical to the mother’s version. He described the child as crying and trembling as she made the disclosure.

September 28 – bruising and disclosure

The child attended childcare on 28 September 2011 and sustained an accidental injury which caused her to receive some bruising to her shin.
On the same evening the mother said she also observed bruises on the child’s lower back at bath time. She said she saw bruises around waist height about the size of a twenty cent piece and a cluster of linear bruises on the child’s right thigh and two linear bruises on her left and right hip. The mother says that the child pointed to areas on her back and legs to indicate where she was sore and she asked the child how she received the bruises. The child said I think that is from when daddy … grabbed me. The mother said the following conversation then occurred:
MotherI need to take photos of you because you have some bruises – to show the police, just in case they fade more. They are nothing yucky, it is just to take photos to show the police.
ChildThey are not like the ones that daddy … takes of me
MotherWhat kind of photos does does daddy … take of you?
ChildHe takes photos of me naked of my fanty and bum. Is bum a swear word?
MotherBum is just a casual word. It is ok to use bum or bottom. Are you in the bath when he takes photos? How do you know he took photos of your fanty and bottom?
ChildThey are not in the bath he showed them to me. Others have my face and I am naked. He showed me them. He has them on his computer.
MotherWas there anyone else in the room when he took photos of you?
ChildNo
MotherHas he done that once or more times?
ChildLots of times mummy, I don’t like it
MotherWhere are these photos [V], when does he show them to you where are they?
ChildOn his computer
MotherWhich computer the laptop, the ipad or something else?
ChildThe laptop I think the black one

The mother said she then took 18 photographs of the child’s bruises and said It’s not ok to take photos of your fanty or bottom. If anything like that happens again you can tell me. The photos I have taken are for the police and once we have done that they will be destroyed. She said there was no further conversation.
The mother agreed under cross-examination that bruises implied that the child had suffered physical harm but agreed that she did not take the child to the doctor after she observed the bruises. She also agreed that on that day [28 September] the child had had a tripping accident at her childcare centre. The mother said that she did not find out what had happened other than read the initial report which outlined an injury [to the child’s shin]. The mother did not go back to the childcare centre and ask about other bruises because the child had already told her how they had come about.
The mother said that the only other person who saw the bruises on the child’s body was the examining doctor, Dr H.

JIRT Interview and medical examination – 30 September 2011

On 30 September the child was interviewed by JIRT. In the course of that interview the following questions were asked and answers given:
Q63O.K. All right. So, [V], can you tell why you’ve come to speak to me today?
ABecause my daddy choked me on the throat.
Q64Because your daddy choked you on the throat.
AYep.
Q65When did that happen?
A On Tuesday, and I was wearing a dress. That’s why.
…
Q68…Can you tell me everything from the start to the end about what happened?
AAnd he licked me.
Q69And he licked you. Where did he lick you?
AHere.
Q70[08:53] O.K. And what do you call that?
AFanny.
Q71Fanny. O.K.
AAnd he putted ice on my fanny too.
Q72He put ice on your fanny too.
AAnd he putted ice, actually he putted salt in my fanny and on my um, oh, in my mouth too and it stinged. And he putted his finger in my bottom.
Q73Ah hmm.
AAnd um, he um, um, and he um, and he um, put the um, ah, ah, I don’t know the answer.
…
When asked if anything else happened the child said:
A- - -his mummy and his daddy was in the room and the um, and she, and she said um, “Stop licking her fanny.” That’s what the mummy said and then…..um…..um, a little while later he stopped and he put my pants, and he pulled my um, leggings back up and my knickers back up.
When asked when this had happened the child said “on Tuesday”. She was then asked:
Q80 [11.56] Do you remember what Tuesday?
ALast Tuesday, only one Tuesday ‘cause, and he didn’t see a photo or, he didn’t see anything else happen to a child.
Q81 Pardon?
AHe didn’t see anything else happen to a child but, and he didn’t even see a photo of a man or a lady do that to a child. He didn’t see that. He just thinked about doing that.
She was then asked:
Q97All right. So do you remember what happened on, what did you do on the Tuesday that this happened?
AUm, I was watching The Island Princess.
Q98O.K.
AThen he makeded me stand up and he holded me um, from the hips like that and I had bruises on my back and on my bottom and on my legs.
Q99               Ah hmm. O.K. So tell me everything- - -
A                   And - - -
Q100            [14.41] O.K. So you were watching The Island Princess.
AYep. And then he said stand up but I kept sitting down ‘cause I didn’t know what he was going to do to me so I just kept sitting up but he turned, but he turned, but he switched it off and after that he um, and then the mummy stayed there a bit longer so he didn’t do that to me again.
Q101            O.K. So you were watching The Island Princess
A                   Yep
Q102Yep. Do you remember what, if it was in the morning or the night-time or the afternoon or something else?
A                   I, he picks me up at 3 o’clock - - -
Q103            Ah hmm.
A                   - - - and I stay there until mummy picks me up.
…
Q119...O.K. So when you were watching The Island Princess was that in the morning, the afternoon or the night-time?
AUm, The Island Princess takes a while.
Q120[17.45] Ah hmm.
AAnd then um, and I stayed there until night-time.
Q121O.K.
AAnd then um, he um, I asked him to put a different one on and he put a different one on but he falled asleep …

She was then asked:
Q124What room in the house were you watching it, The Island Princess on?
A                   Upstairs in the lounge room.
Q125Upstairs in the lounge room. And who was there with you when started watching The Island Princess?
AJust daddy …
Q126Just daddy ...
AAnd I was watching, and I was eating some orange chippies.
Q127Eating orange chippies. O.K. So when you said to me before that he said for you to stand up - - -
AYeah.
Q127- - - and you kept sitting up, was that at the beginning of the movie, the end of the movie or something else?
AHuh?
Q128When daddy asked you to stand up was that at the beginning of the movie or something else?
AThe beginning.
…
Q152That’s O.K. All right. O.K. So you said to me before that he licked you on your fanny. Yeah. O.K. So what happened before he licked you on your fanny?
AUm, nothing. He just said stand up then he licked my fanny, pulleded my um, leggings down and my knickers and pulled my T-shirt up and then he um, um, and then he um, then he start licking my fanny.
…
Q158O.K. So when you said that daddy pulled your leggings down and pulled your T-shirt up were you sitting or standing or something else when he did that?
AStanding, then he did that when he pulleded my leggings down.
Q159O.K. And where did he pull your leggings down to?
A(NO AUDIBLE REPLY)
Q160[24.14] And what part, what, what do you call that part?
AUm - - -
Q161What do you call that?
AAnkle.
Q162Ankle. O.K. So after he pulled your leggings down and your knickers down to your ankles and he pulled your T-shirt up what did he do then?
AUm, started licking my fanny.
Q163O.K. And when you say licking your fanny, what part of his body was he licking your fanny with?
AUm, his tongue.
Q164His tongue. O.K. And were you sitting or were you standing when was licking your fanny with his tongue?
AUm - - -
Q165Licking your fanny with his tongue.
AStanding ….. and he did that. And that’s, and I had a sore belly because he done that to me.
Q166O.K.
AAnd he did this and that and all the way down to my feet, here.
Q167O.K. So what was he doing with, what, what part of his body was he doing that with?
AUm, his hands did that.
Q168Ah hmm.
AAnd his tongue was doing that.
…
Q175Just there. O.K. All right. And how long did he lick your fanny for?
AAbout - - -
Q176Do you know how long?
AYep. Um, seven hours.
Q177Seven hours. O.K. All right. Was anybody else in the room when daddy was licking your fanny?
A(NO AUDIBLE REPLY)
Q178Who was in the room?
AHis mummy and his daddy, when he did all those stuff that I said.
Q179So his mummy and daddy were in the room when he was licking your fanny. Whereabouts were they?
AUm, near the stairs.
Q180[27.12] O.K. Could you see them?
AUh-huh, yep.
…
Q187That’s O.K. Was his mummy and daddy upstairs on (sic) downstairs when this happened?
AUpstairs
Q188Upstairs.
ABut…they just wanted to ask daddy a question.
Q189O.K. All right. And did daddy say anything to you when he was licking your fanny?
ANo. But he said something to his mummy. He said um, and mummy said to daddy …, “What are you doing to that girl?” And he said, “Licking her fanny”…..
Q190[29.09] O.K. And you said to me before that, what did it feel like when he was licking your fanny, what could you feel?
AUm, his tongue and he said to look at his tongue but I looked, but I didn’t like it so I just looked away.
Q191O.K. All right. Did he say anything else to you when he was doing that?
AUh-huh, but he bringeded some salt but I hided in my bedroom.
Q192He what, sorry?
AI hided in my bedroom.
Q193What did you hide?
AI hide in my bedroom.
Q194O.K. All right.
AAnd I was against the door so he couldn’t come in.
Q195O.K. And you said to me before that he put ice on your fanny too.
AAnd - - -
Q196When did he do that?
AAnd salt in my fanny too.
Q197Yeah. When did he do that?
AOn the Tuesday.
Q198Was this when he was licking your fanny or is this another time?
AWhen he was licking my fanny, the same day.
Q199Yeah. And what did he do with the ice?
AAnd salt.
Q200[30.19] Ah hmm.
AHe um, put it here and there but I…..
Q201O.K. Where did he get the ice from?
AUm, downstairs in the fridge.
Q202O.K. So was this, did he put the ice on your fanny around when he was licking your fanny?
AMmm - - -
Q203Or is this another time?
AThe same day.
Q204The same day. O.K. So when did he go downstairs to get the ice?
AUm, after he licked my fanny.
Q205Ah hmm.
AThen he, then I hid, then I closed my door, then I did that, like, that’s the door and then I did that and he couldn’t come in.
Q206O.K. O.K. So, so when, how did daddy, what made daddy stop licking your fanny in the lounge room?
…
AHe just thinked, stop licking her in the lounge room.
Q208O.K. All right. And then from the lounge room where did you go, what happened then?
AI went to my bedroom.
Q209You went to your bedroom.
AIt’s near the bathroom.
Q210[31.43] It’s near the - - -
AWhere the bath is.
Q211Yep. And then what happened then?
AHe camed upstairs and I could hear and quickly shut the door.
Q212Ah hmm.
AAnd then um, then um, he tried to open it but I um, didn’t let him open it. That’s why I did that.
Q213Ah hmm. And then what happened?
AThen um, I opened it quietly then he was downstairs then I said, “Stop. Don’t do that to me again.” Then I smacked him and punched him.
…
Q221Ah hmm. So did daddy put his finger in your bottom after he licked your fanny or before?
AUm, after he licked my fanny.
Q222Ah hmm.
AThen he um…me then putted his finger in my mouth.
Q223O.K. And what could you feel when daddy put his finger in your bottom?
AHe ….. he um, he has hair on his fingers.
Q224Ah hmm.
AAnd um, he um, and his skin.
Q225Ah hmm.
AAnd that’s all that I could feel.
…
Q237After that happened. O.K. And what happened when they, when they came in they said that, who said that, his mum or his dad?
AYou mean stop licking her fanny?
Q238Ah hmm.
AHis mum.
Q239His mum
A‘Cause his dad’s getting very old.
Q240[36.10] Ah hmm.
AHe’s sick.
Q241And what happened when his mum said that?
AUm, he said, “I’ll never stop doing that.” But he did a few hours later.
Q242He did it a few hours later?
AHe stopped doing it a few hours later.
…
Q245Yep. O.K. So you said to me before that, that your dad, he choked you on the throat, yeah.
AAnd I, and he did that.
Q246O.K.
AAnd I couldn’t speak.
Q247All right. So when did daddy do that?
AUm, the same Tuesday.
Q248Yeah. Was that before he licked your fanny or after he licked your fanny?
AUm, after he, um, um, after he put his finger in my bottom.
Q249Ah hmm. And did daddy say anything to you when he choked you?
AUh-uh.
Q250[37.38] No. What, why, why did he do that?
ABecause he wanted to hurt me and he’s a very bad man.
Q251Ah hmm. And how did that make you feel when he choked you?
ASick
Q252Sick. Yeah. So what was your body doing when he choked you?
AJust standing there like this.
Q253Ah hmm. Could you feel, when you said it made you feel sick what, where, where did you feel sick?
A(NO AUDIBLE REPLY)
Q254In the tummy.
AAnd I vomit at Happy Days because he made me so sick.
Q255Mmm.
AI couldn’t even, and I couldn’t, I could speak but I, but I nearly couldn’t.
…
Q292O.K. All right. O.K. So [the celebration day] was on the Friday, did this happen on the Tuesday after [the celebration day] or before [the celebration day]?
AUm, after [the celebration day]
…
Q301No. O.K. So have you told anyone about what happened?
ANo.
Q302With your dad, have you, who have you told?
ANobody.
…
Q306A truth. O.K. Well, someone told me that your mum knows that your dad licked your fanny.
AUh-huh.
Q307Yeah. Who told your mum?
AI don’t know.

The mother has also demonstrated that at times she has needed the support of her extended maternal family, in particular her mother, to manage the day-to-day care of her children. Historically, the father for a short time assisted her in the care of the child when she returned to full-time work, and cross-examination and her personnel records reveal that she has taken significant leave due to ill health. The mother has also been heavily medicated at times and at the time of the November proceedings had been living with her mother for most of the year while she recuperated from surgery.
Notwithstanding these concerns I am of the view that with the assistance of her extended family, the mother has demonstrated a capacity to meet the child’s physical and developmental needs. She was also not identified by Dr MM as having any psychiatric condition that would affect her capacity to parent the child. There is no evidentiary basis for the father’s proposed orders that deal with psychiatric treatment for the mother.
A number of concerns relating to the father’s parenting capacity were identified by Dr MM. Firstly, he felt that it was likely that the father experienced an adjustment disorder with depressed mood which occurred in the context of a background of treatment-resistant irritable bowel syndrome and a diagnosis by a psychiatrist of an underlying depression which the father denied. The doctor identified, and the evidence in the proceedings supported, that the father had difficulty in recognising his experience of anxious and depressed mood and focussed instead on the physical symptoms of the irritable bowel syndrome. The doctor said that it was unfortunate that the father self-medicated with anti-depressant medication “which may have further amplified his mood and behavioural problems”.
The doctor also identified that the father had limited social skills and opined at the resumed hearing that the question of Aspergers disorder may arise. A central feature of Aspergers is a lack of empathy which he felt was present in the father. As referred to earlier, the doctor was of the opinion that the father lack an appreciation of the importance of aspects of the child’s experience other than that she was alienated, and felt that the father focussed to a great degree on a lack of justice towards himself and that he had been wronged through the court proceedings and through the criminal justice proceedings. The doctor did concede however that this was a normal response in a situation where a person had in their view been wronged by the system.
The doctor maintained that the father was emotionally immature and felt that his use of pornography and his describing gender on the basis of genitalia was also “odd” and demonstrated emotional immaturity. When interviewed by the doctor on the last occasion, the father said that he “couldn’t give a rat’s arse that [the mother] is [the child’s] mother, and I am [the child’s] father, that she has a vagina and I have a penis…I fail to see how a vagina trumps a penis”. The doctor said that these comments and the father’s extent of pornography use go to the emotional maturity of the father’s view of relationships and of gender which raise concerns particularly in the context of raising a daughter.
Dr MM also felt that the father lacked the psychological capacity to care for the child on a day-to-day basis and provide for the needs of the child’s emotional development. He opined that if the child were moved to his full-time care he would not have capacity to manage the likely emotional distress, behavioural resistance and opposition that the child would exhibit.

Maturity, sex, lifestyle and background (including culture and traditions)

The child is a nine year old little girl of European heritage on her father’s side and British heritage on her mother’s side. Although she was exposed to the traditions associated with her European culture prior to the estrangement from her father and undoubtedly benefited from that, she has unfortunately lost the benefit of that culture since she has lost the relationship with her father and will not receive it under the proposed orders of the ICL or the mother.
The child is well connected to her maternal family and appears to have significant social capital in her local community.
Each of the child’s extended families has much to offer her and it is regrettable that each of the proposals in this case involve the child only being able to receive the benefits from one of the extended families due to the extreme circumstances in which she has been placed.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

Each of the parents has adopted a responsible attitude to parenthood consistent with the position that each adopts with respect to the allegations in this case.
However, although each of the parents perceive themselves as focusing on the best interests of the child, in my view, each is focused to a greater extent on their own experience. The mother remains convinced that the child’s account of being sexually assaulted by the father is correct, notwithstanding the findings of the Judge in the District Court that the criminal proceedings against the father were inherently weak and the evidence in this case, particularly of the expert, Dr MM. The mother’s misinterpretation of the contents of the letter the father wrote to the child in December 2014 provides recent evidence that the mother continues to interpret events in a way which supports the narrative that the child was abused, even when this does not accord with reality. From the mother’s perspective, it is crucial for her to maintain this position, as if she accepts the alternative, she will need to confront the reality of how she has harmed the child. A child-focused mother would accept that she has harmed her child and assist her in recovering from that harm by promoting her relationship with the father.
So far as the father is concerned, in my view, his sense of having been unjustly treated has played a more significant role in the proceedings than understanding the child’s experience. Dr MM agreed with the proposition that even if the father feels an enormous sense of injustice over what has happened in the past the only way (to assist the child) if he were truly child-focused, would be for him to accept [the doctor’s] recommendations that the child stay living with her mother and not have any contact with him unless it is on the child’s terms and in a safe neutral space. In other words, a child-focused father in his position would make a tactical retreat.

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[12] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter the ICL and mother seek that sole parental responsibility be allocated to the mother with whom it is proposed under their orders that the child will live. The only exception is in the ICL’s proposal that the mother not hold parental responsibility with respect to the child’s name. The father proposes that the parents share parental responsibility for the child.
In my view, the presumption that it is in the best interests of the child for the parents to equally share parental responsibility is rebutted by evidence that it would not be in the child’s best interests for this to occur. There is no evidence that the parents have any capacity to jointly make any decisions in relation to the care and welfare of the child. They are diametrically opposed to one another and each regard the other parent to have acted seriously to the detriment of the child. The parents do not and cannot communicate with each other and the mother sees no benefit to the father providing any input into the child’s life. In these circumstances, it is not possible for the parents to jointly make decisions as would be required under an order of equal shared parental responsibility. In my view, the only arrangement that would meet the child’s best interests is for parental responsibility to be held by the parent with whom the child lives.

Conclusion

The thrust of the submissions made on behalf of the father are to the effect that the mother has emotionally abused the child and alienated her from him to the extent that her relationship with him has been destroyed. He has been falsely accused of heinous conduct which has had dire consequences for the child. The father would be justified in a position that it would be unjust for the Court to make the orders sought by the ICL and mother as they would reward the mother for her harmful conduct. However, there has been a consistent line of authority[13] that the “justice” of the case between the parties must be subordinated to the child’s best interests and the Act is clear that the child’s best interests are paramount.
[13] In the Marriage of Schenk (1981) 7 Fam LR 170; FLC 91-023; In the Marriage of Reihana (1980) 6 Fam LR 134; (1980) FL 90-835
This is a tragic case where the orders proposed by the ICL and mother, which are consistent with the opinion of the expert in the matter, will result in the child being denied of the benefit of a meaningful relationship with her father at the present and on the ICL’s case having a prospect of receiving that benefit in the future. Although this primary consideration is clearly an important one, the other considerations must also be taken into account.
In my view, the likely impact of the change in circumstances upon the child must be given the greatest weight. The parents’ respective capacity is also a particularly significant consideration and the child’s views and the nature of her relationships must also be given due weight. That is not to say that the other considerations are disregarded.
Taking all of the matters into account and giving most weight to those which are of greatest significance in these particular circumstances, I am of the view that the orders proposed by the ICL are in the best interests of the child in this matter.
Accordingly, I make the orders set out at the forefront of these Reasons.

I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 October 2015.

Associate:

Date: 30 October 2015

[2015] FamCA 936

30 October 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies