Delahunty & Delahunty (No 3)

[2019] FamCA 995

FAMILY COURT OF AUSTRALIA

DELAHUNTY & DELAHUNTY (NO. 3) [2019] FamCA 995

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the parents consented to a final parenting order in 2012 upon the mother’s undertaking not to leave the child alone with the maternal uncle, a convicted paedophile – Where the order provided for the child to live with the mother and spend time with the father – Where the father seeks that the child live with him in Sydney and spend 12 weekends per year and half school holidays with the mother – Where the mother seeks that the child live with her and spend 12 weekends per year and half school holidays with the father – Where the father contends the mother will not promote and facilitate his relationship with the child and that the mother will put the child at an unacceptable risk of harm because she does not accept the danger the maternal uncle poses to the child – Where an injunction was made in July 2016 restraining the maternal uncle from having any contact with the child – Where the mother, the maternal uncle and the father consent to a continuation of the injunction – Where the court is satisfied that the mother has complied with the injunction made in July 2016 and recognises the risk of harm the maternal uncle poses to the child – Where the mother is likely to facilitate the father’s time with the child despite there being occasions in the past where she has failed to do so – Where the child will live with the mother and spend 12 weekends per year and half school holidays with the father.

FAMILY LAW – CHILDREN – Parental responsibility – Where the final parenting order made by consent in 2012 provided for the parents to have equal shared parental responsibility – Where the independent children’s lawyer submitted that the mother should have sole parental responsibility and the mother belatedly adopted that position – Where the parents, during their oral evidence, expressed a commitment to jointly making decisions about major long term issues – Where it is not in the child’s best interests to vary the arrangement that has been in place since 2012 – Where the parents will have equal shared parental responsibility.   

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Johnson & Page (2007) FLC 93-344
D & D (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Delahunty

RESPONDENT: Ms Delahunty

INDEPENDENT CHILDREN’S LAWYER: Ms E. Rayment

FILE NUMBER: SYC 4163 of 2016

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 11 - 13 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Life Law Solutions

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Firth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ELR Law

Order

1. All previous parenting orders be discharged (save for any arrangements already made for the father to spend time with the child during for the current Christmas school holidays which shall proceed as arranged, unless the parents agree to extend the time to one half).

2. The father and mother have equal shared parental responsibility for major long terms issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the child C born in 2010 (“the child”).

3. The child live with the mother.

4. The child spend time with the father as agreed but failing agreement:

   (a)       During school terms, provided the father is available to care for the child:

   (i)Up to 12 weekends per year, to be nominated by the father in writing at least four weeks prior to the proposed weekends, with the child to depart from Brisbane between 5.00pm and 8.00pm on the Friday and then return to Brisbane the following Sunday between 3.00pm and 5.00pm;

   (ii)The time the child spends with the father pursuant to the preceding paragraph occur at no greater frequency than once per fortnight.

   (b)During school holiday periods, provided the father is available to care for the child:

   (i)For the first half of the school holiday periods in odd years (commencing in 2021 unless the parents agree to extend the father’s two week period in the current Christmas school holidays), with the child to depart from Brisbane between 7.00am and 10.00am on the day immediately following the conclusion of the school term, and the child to then return to Brisbane between 3.00pm and 5.00pm on the midpoint calendar day of the school holiday period.

   (ii)For the second half of the school holiday periods in even years with the child to depart from Brisbane between 7.00am and 10.00am on the midpoint calendar day of the school holiday period, and the child to then return to Brisbane between 3.00pm and 5.00pm on the last Sunday of the school holiday period.

5. In the event that the father is deployed during the child’s school holidays the father be entitled to makeup time with the child of an additional weekend during the next school term with the child to depart from Brisbane between 5.00pm and 8.00pm on the Friday and return to Brisbane the following Sunday between 3.00pm and 5.00pm.

6. For the purposes of paragraph (5) herein, the father provide the mother with at least four (4) weeks written notice of his deployment and the makeup time he elects to spend with the child.

7. The father and mother take all reasonable steps to facilitate the child being permitted to travel between the parents as an unaccompanied minor.

8. At least 7 days prior to the father spending time with the child pursuant to paragraph (4) and (5) herein he provide the mother with a copy of the child’s airline ticket from Brisbane and her return ticket to Brisbane.

9. The father be responsible for the costs of the child’s flights between Brisbane and Sydney until 2023 and thereafter the costs of the child’s flights be shared equally between the mother and the father.

10. If the child is spending time with the father on Christmas Day, and the mother is in geographical proximity, the mother shall be at liberty to spend time with the child, whereby she collects the child from the father on Christmas Day at 6.00pm and returns the child to the father on Boxing Day at 6.00pm.

11. If the child is spending time with the mother on Christmas Day, and the father is in geographical proximity, the father shall be at liberty to spend time with the child, whereby he collects the child from the mother on Christmas Day at 6.00pm and returns the child to the mother on Boxing Day at 6.00pm.

12. The father be restrained from taking the child to any counselling and in particular sexual abuse counselling without the express written consent of the mother.

13. The father use his best endeavours to ensure that neither Ms B nor any other person questions the child about sexual abuse issues.

14. The father be restrained from discussing with the child or in her presence or hearing his fears, concerns, or beliefs as to the child being sexually abused.

15. On any occasion the child is travelling overseas, the travelling parent will facilitate communication between the child and the non-travelling parent either by way of telephone, Skype, WhatsApp, or email, at least every 72 hours.

16. The father and mother be permitted to nominate an agent known to the child to collect or deliver the child from the other parent or agent.

17. The father and mother each keep the other informed of their respective telephone numbers (including landline and mobile) and addresses, and provide the other parent with at least 7 days’ notice of any change of address.   

IT IS FURTHER ORDERED BY CONSENT

1. For the purposes of Father’s Day weekend, the child shall be in the father’s care during this weekend.

2. For the purposes of Mother’s Day weekend, the child shall be in the mother’s care during this weekend.

3. The parents shall keep  each other informed, as soon as practicable of:

   (a)Any medical problems or illness suffered by the child whilst in the parent’s care;

   (b)       Any medication that has been prescribed for the child;

   (c)       Any recommendations made by the child’s medical practitioners; and

   (d)Any other matter relevant to the child’s welfare or long-term decisions in respect of the child.

4. In the event of the child being hospitalised or receiving medical attention, the parent with care of the child shall notify the other parent as soon as practicable, and the parent with care of the child shall do all acts and things and give all irrevocable authorities necessary to allow the other parent to speak with the medical practitioner, medical centre or hospital.

5. The parents authorise any school which the child attends to provide to each parent:

   (a)       Copies of all school reports;

   (b)Copies of newsletters and announcements of school activities or other material pertaining to the child’s education;

   (c)       Order forms for school photographs;

   (d)       Any notes or letters to parents concerning the child.

   AND this order acts as authority for either parent to obtain any information they wish to obtain form the school, at their own cost.

6. Each parent authorises any school attended by the child to discuss the child’s progress with either parent and this order shall be deemed as authority by each of the parents to any school which the child attends.

7. This order shall be deemed as authorisation by both parents to any medical practitioners or health professional the child attends on for both parents to receive all information in respect of the child’s health, welfare, and medical matters.

8. The parents are permitted to travel overseas with the child, in the time the child is to spend with that parent (unless otherwise agreed as to another time in writing), upon the provision of the following documents and information to the other parent, at least 28 days prior to the intended travel:

   (a)       A copy of the return plane tickets for the child;

   (b)A copy of the travel itinerary, which outlines all places at which the child will stay during the travel; and

   (c)Contact telephone numbers and addresses at which the child can be contacted overseas.

9. Upon the provision of information and documents, as listed in paragraph (25) herein the other parent is not to unreasonably withhold consent for overseas travel.

10. The parents sign all documents and do all things necessary to enable the child to renew her Australian Passport, as and when required, with the parent who requires the passport for travel to be responsible for the cost.

11. Neither parent is to permit the child to travel overseas unaccompanied without the other parent’s prior written consent.

12. Neither parent shall denigrate the other parent when the child is within hearing distance, or in their presence, nor allow anyone else to do so.

13. The parent with whom the child is living or spending time will facilitate communication between the child and the other parent, by way of telephone, Skype or WhatsApp each Tuesday, Thursday and Saturday between 7.00pm and 7.30pm with the parent with whom the child is not currently in the care of to make the call, and the other parent to accept the call, and ensure the child is available to receive it.

14. The mother be restrained from allowing the child to communicate with or come within 200 metres of her brother, D.

15. The father’s application for a child support departure order be dismissed.

IT IS FURTHER ORDERED BY CONSENT AND WITH THE CONSENT OF D

1. D be restrained from communicating or requesting anyone else to communicate with the child or from coming within 200m of the child.

it is further ordered

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delahunty & Delahunty (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 4163 of 2016

Mr Delahunty

Applicant

And

Ms Delahunty

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Mr Delahunty and Ms Delahunty are in dispute about their child, C aged nine.

2. The child has lived all her life with her mother. Her parents separated at about the time of her birth and shortly thereafter her father moved to Sydney. By all accounts she is a delightful, intelligent, and well-rounded child who has a close and loving relationship with each of her parents.

3. A final parenting order was made by consent on 17 September 2012 (“the 2012 order”) providing for the parents to have equal shared parental responsibility and for the child to live with the mother and spend time with the father. Each parent proposes some variation to the 2012 order (which has already been varied by a number of subsequent orders).[1]

   [1] The order was varied on 23 March 2017 and further parenting orders or orders relating to the child’s welfare were made on 26 July 2016, 30 September 2016, 19 December 2017 and 14 May 2019. The parties have also agreed to variations of the order from time to time.

4. The father wants C to live with him in Sydney. The father contends that if the child remains with the mother she will not promote and facilitate his relationship with the child and the mother will put the child at risk because she does not accept the danger her brother (a convicted paedophile) poses to the child.

5. The mother resists any change to the child’s living arrangements but proposes an increase in the time the child spends with the father. The mother and her brother consent to orders that will continue to restrain him from having any contact with the child at all.

6. For the reasons which follow I do not propose to change C’s current living arrangements, although I do propose to increase the father’s time with the child. I do not propose to vary parental responsibility. Although I could leave in place those parts of the 2012 order and subsequent parenting orders that will continue to operate, I have decided it would be more felicitous to discharge all previous parenting orders and replace them with one order incorporating all operative orders.

Issues

1. The significant issues for determination in this case have been identified with the assistance of the parties and the independent children’s lawyer (“ICL”) and are as follows:

   a)Is there an unacceptable risk of harm for the child remaining in the full time care of the mother given her alleged failure to appreciate the extent of the risk posed by her brother D?

   b)Can the mother be relied upon to facilitate the child’s relationship with the father in the future given her alleged past failure to do so?

   c)What is the likely impact on the child of a change in her primary care arrangements?

   d)Is the child at risk of psychological and emotional harm in the father’s household given his belief that the child has been sexually abused?

2. An application by the father for a departure order from a child support assessment was abandoned and will be dismissed by consent.

Proposals

1. The father proposes that the child live with him and his partner, Ms N in Sydney. The father and Ms N commenced to live together in May this year. He proposes that the child spend 12 weekends per year with the mother and half school holidays.[2]

   [2] The precise order sought is as set out in the father’s Amended Initiating Application filed 15 October 2019 and exhibit 18.

2. The mother adopts the order recommended by the ICL, including an order that she have sole parental responsibility despite having sought the continuation of equal shared parental responsibility up to the time of submissions. Under this proposal the child will continue to live with the mother and spend 12 weekends per year with the father and half school holidays.[3]  

   [3] See exhibit 16 and 18 (a combined minute of order received from the parties jointly after the conclusion of the trial).

3. The ICL recommends that the child continue to live with the mother in Brisbane and spend 12 weekends per year with her father in Sydney and half holidays. Additionally, the ICL recommends that the mother have sole parental responsibility.[4]  

   [4] Ibid.

background

1. The mother and father had a brief relationship from about 2008/09 to late 2010/early 2011. They have one child together who was born in 2010. The child is about to start grade four at School O where she has attended since kindergarten. The school provides education up to grade twelve.

2. The father is 33 and works in the public service. His current partner, Ms N is 33 and works as a professional. The father has another child with a former partner, Ms B. Their child is three and lives with Ms B and spends time with the father.

3. The mother is 29 and studying with the intention of transferring to health care work. She plans to be back in employment by 2023. She was last employed in mid-2017 as a professional but ceased that employment because the hours were not conducive to being involved in the child’s life. The mother lives in Brisbane with her current partner, Mr P. Mr P is 38 and employed full time for the public service. The mother has been living with Mr P since the beginning of 2019, although they have been in a relationship for two years.

4. Shortly after the child’s birth the father moved to Sydney with his work. The father spent very limited time with the child initially and has spent significant periods overseas with his work.

5. On 17 September 2012, the parents consented to a final parenting order upon the mother’s undertaking not to leave the child alone with her brother, D. It is common ground that D is a convicted paedophile who has spent time in prison as a result of his criminal behaviour.

6. During the period 25 June 2016 to 26 July 2016, the father withheld the child from the mother as a result of his concerns that, despite the mother’s undertaking, the child had been sexually abused by D.

7. On 26 July 2016, an order was made that the child be returned to the mother upon her undertaking not to permit D to have any contact with the child and an injunction was made against D restraining him from coming within 200 metres of the child. D admits that he is a risk to the child and will consent to the continuation of the injunction.

8. The mother contravened the 2012 order without reasonable excuse on 25 August 2017, 16 September 2017 and 1 December 2017 by failing to take all reasonable steps to ensure the child spent time with the father. An order for makeup time was made and the mother was required to compensate the father for the cost of his wasted air fares on those three occasions. 

9. The father’s time with the child has been consistent since the beginning of 2018. He spends six weekends (twelve nights) with the child during the year and half school holidays (save for the Christmas holidays when he spends two weeks with the child).

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]

   [5]Family Law Act 1975 (Cth), s 65D.

1. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

2. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

3. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

4. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

5. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

6. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

7. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[8]

   [6] D & D (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [7] D & D (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [8] See Johnson & Page (2007) FLC 93-344, [68], [71].

8. The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[9] and said:

   [9] [2019] FamCAFC 198.

   38. In D v D (1988) 166 CLR 69 at 78 (“D v D”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39. It is to be remembered that the concept of “unacceptable risk” referred to in D v D was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see D v D at 76; B and B (1993) FLC 92-357).

   40. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   151.      …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   41. As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

9. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

   51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

10. The Court is not required to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[11]

    [10]Baghti & Baghtiand Ors [2015] FamCAFC 71.

    [11]D & D (1988) 166 CLR 69.

11. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

12. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

13. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

14. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

15. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

16. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[12]

    [12]Banks & Banks (2015) FLC 93-637.

17. While the existence of a ‘final’ parenting order does not prevent the Court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case,[13] its existence  gives rise to a consideration of the principles outlined in Rice & Asplund.[14] Essentially, the Full Court in that case cautioned against reversing an earlier “custody” order unless there is shown to be a change in circumstances sufficient to warrant it.  Neither parent in this case relied upon the application of the Rice & Asplund principles to defeat the other party’s agitation for change to the 2012 order. In those circumstances and as this case has proceeded to a final hearing, its application will be limited.[15]

Is there an unacceptable risk of harm for the child remaining in the full time care of the mother given her alleged failure to appreciate the extent of the risk posed by her brother D?

[13]SPS & PLS (2008) FLC 93-363 at [37], [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.

[14] (1979) FLC 90-725 at [7].

[15]SPS & PLS (2008) FLC 93-363 at [48].

1. As noted above, it is common ground that D poses an unacceptable risk of sexual harm to the child, and the mother consents to a continuation of injunctions against her and D which will restrain him from having any contact with the child. The issue is whether or not the mother is genuine when she makes this concession and whether she will abide by restrictions imposed upon her.

2. The father sought to establish that, despite the restrictions on the mother and D, the mother has not only permitted the child to have contact with D, but that the child has already been sexually abused by D. The father even goes so far as to suggest that the mother may have facilitated the abuse. The father also insists that the child should receive counselling upon the premise that she is a victim of sexual abuse.

3. The father relies upon the following evidence in particular:

   a)An alleged bruise on the child’s pubic bone on 27 June 2016;

   b)Statements made by the child to the father on 27 June 2016 and other dates;

   c)Statements made by the child to Ms B on 27 June 2016 and other dates;

   d)An alleged bruise on the child’s pubic bone on 23 June 2019;

   e)Conduct by the mother indicating minimisation of the risk posed by D.

4. The father and Ms B also describe a number of other observations of the child and other statements by the child which suggest, according to them, that the child has been abused by D and/or that the child is exposed to a sexualised environment in her mother’s household.

5. For example, Ms B says that on one occasion the child stood in front of a mirror in what she described as a “suggestive pose” and said this was how D likes her to stand. This is said to have occurred shortly after the bruise being observed in June 2016.

6. Another occasion (also after the 2016 bruise was observed) involved the child asking the father to lie on top of her while he, Ms B and the child were in bed together and the child made reference to D lying on top of her. 

7. The father also said he was concerned prior to 27 June 2016 by a number of statements made by the child about boyfriends and the like which suggested to him that the child had been exposed to inappropriate adult conversation.

8. In order to better understand the father’s contentions, I propose to deal in greater detail with the evidence relating to the circumstances surrounding the 27 June 2016, the 23 June 2019, and the mother’s alleged minimisation of risk. 

27 June 2016

1. The child came into the father’s care on 25 June 2016 and was initially due to return to the mother on 4 July 2016. An agreement was reached that her stay would be extended until 9 July 2016, but subsequent events resulted in the child not returning to the mother until 26 July 2016 and pursuant to a Court order.

2. Prior to 25 June 2016, the father and his then partner, Ms B, were alert to the prospect that the child was at risk from D.[16] Ms B said during her evidence that there were a number of “red flags” leading up to this time e.g. comments by the child that “D hurts me”. Even though the context appeared to relate to play, it is inexplicable that the father did not contact the mother immediately upon the child saying such a thing, given D’s history.

   [16] Apart from the undertaking given by the mother in the 2012 order.

3. The affidavit material relied upon in the father’s case provides an incomplete account of the circumstances relating to the events on and after 27 June 2016 but all parties consented to the tender of the Reasons for Judgment of the Honourable Justice Rees dated 30 September 2016 in which a detailed account is set out.[17] The matter came before Rees J on 28 September 2016 as a result of the father’s review of a Registrar’s decision on 26 July 2016 to return the child to the mother. The father’s review application was unsuccessful. I set out the relevant parts of her Honour’s judgment below:

   [17] Exhibit 10.

   27.The father deposed that on 27 June 2016, when he and Ms B were bathing C, he noticed that there was a bruise on her pubic bone. When C was asked how she got the bruise, C said “It was [D], he hurt me and he pinches me.” The father called the family doctor who suggested that C be taken to hospital. In the meantime, Ms B had another conversation with C and said to the father “I’ve just had another conversation with [C] (sic), I said to her ‘[C] (sic) what you told us was that you have a bruise and that [D] did it when he was playing with you’ and I asked her if this was correct and she said yes”.

   28.Ms B’s version of the event is more expansive. She deposed that, when C was being bathed on 27 June 2016, she noticed a bruise on her pubic bone. The following conversation ensued:

   Me:C (sic) do you know that you have a bruise on your vagina?

   C:Yes

   Me:Is it sore?

   C:No

   Me:C (sic), do you know how you got that?

   C:No

   Me:You know you can trust us, you can tell us what happened.

   C:It was [D], he hurt me and he pinches me.

   29.I note that it was Ms B, not C, who used the term “vagina” which is a term that, according to the mother, C did not know.

   30.Ms B made a statement to police on 30 June 2016. In that statement she said that after C was dressed, following her bath on 27 June 2016, Ms B said to C “So, C, what you have told me in the bath is that you have a bruise on your vagina and it came from [D] pinching you when you were playing, is that right, C?” C replied “Yes”.

   31.The father and Ms B took C to the Children’s Hospital at Suburb G where she was examined by a doctor. On arriving at the hospital, the father told the doctor “I noticed my daughter, [C], has a bruise on her pubic bone, I suspect that it’s as a result of touching by her uncle, we’re very concerned and we’d like you to have a look at it please.”

   32.The discharge summary notes that C presented with a small bruise.[18] The discharge summary notes the report of Ms B in the following terms:

   [18] A 7mm circular bruise.

   The following are quotes reported by [Ms B] about her interactions with C prior to admission. I did not interview C about the incident.

   At the time of noticing the bruise, [Ms B] asked questions of C to determine the nature of the injury

   [Ms B]: ‘Who touches you there?’ C: ‘My [D]’

   At other times:

   [C]: D did it

   [C]: D is naughty

   [C]: D hurts me

   [Ms B] reports that she asked how it happened and [the child] said they ‘were playing’, she then asked [the child] what she did next and [the child] stated she asked ‘him to stop’, but he ‘kept doing it’

   [Ms B] attempted questioning in regards to if mum was present, if [the child] and [D] were wearing clothes and how many times it happened but was unable to obtain an answer or [the child] was vague on details. The family received a video from Mum and [D] and upon seeing [D], [the child] stated ‘Oh no, not [D], he hurts me’

   33.There is a disparity between the version of the conversation with the child to which Ms B deposed in her affidavit and the version she gave the doctor as noted.

   34.The discharge summary noted that the child’s bruise was not specific for sexual assault but sexual assault could not be ruled out. There was no obvious sign of forced penetration or restraint and the child’s labia were observed to be normal.

   35.In the car on the way home, Ms B had another conversation with the child. The father listened. The father deposed that the conversation occurred as follows:

   [Ms B]: ‘[C], you’re a brave little girl, you’re a good girl and you can trust us, is there anything else that we should know?

   [C]: ‘Sometimes [D] gets me to pinch him’.

   [Ms B]: ‘Where does he get you to pinch him, on the arm, head, chest, leg, crutch (sic), on his penis?’

   [C]: (Giggled) ‘Yes’.

   [Ms B]: ‘What you’re telling me is that [D] gets you to pinch him in different places including his penis?’

   [C]: ‘Yes’.

   36.In her statement made to the police on 30 June 2016, Ms B stated that, after the conversation referred above, she said to the child “What you have told me is that D gets you to pinch him as well when you play and you have had to pinch him on his penis?” The child said “Yes”.

   37.The inappropriate nature of that conversation will, no doubt, be explored in the course of the final hearing.

   38.On the following day Ms B had yet another conversation with the child. She reported to the father:

   I had another conversation with [the child] and I said to her ‘Does your mummy know that you have this bruise?’ and she said to me that she doesn’t know. She also said to me that when mummy was in hospital, [D] looked after her and they drove to pick mummy up and they went to McDonalds and that she told her mummy that [D] had hurt her, but then she said to me ‘[D] said I shouldn’t have told my mummy’.

   39.Ms B made a report to the Department of Family and Community Services.

   40.Ms B deposed that on 29 June 2016, the child said to her “… what do I do if [D] hurts me again?” And Ms B said to the child “He is never going to hurt you again C. He should never have hurt you.”

   41.On 30 June 2016, C (sic) was interviewed by, I assume, the Joint Investigation Response Team (“JIRT”). The record of the interview was in evidence. Leading questions were asked and propositions put to C. She was vague in her answers. The effect, on the reliability of the interview, of the leading propositions put to her in the preceding days by Ms B cannot be evaluated. It is sufficient to say that, contrary to the submissions made on behalf of the father, I do not accept that C made a disclosure of sexual abuse in that interview.

   42.Ms B deposed that on 1 July 2016, C said to her “[D] would ask me to come over and tell me that he has a present and then he would pinch me on the vagina.”

   43.On 4 July 2016, the father filed an Initiating Application seeking an order that the child live with him and spend time with the mother as agreed. By way of interim order the father sought an order that the child live with him and spend time with the mother, either in his presence, or at a contact centre from 9am to 5pm on one day each calendar month, presumably in Sydney.

   44.The father did not tell the mother of his concerns about the child before he filed the application.

   45.On 5 July 2016, Ms B deposed that the child was lying in bed with her father and Ms B and the child said “Daddy, lie on top of me.” The father told the child that was not a good idea and the child said “[D] lies on top of me lots. He did this before the time he pinched my vagina and when I told him to get off me he did.”

   46.Ms B deposed that on 5 July 2016, she was helping the child get dressed. She observed the child adopt a pose that Ms B interpreted to be suggestive and to pout her lips. The child said “Do you like this? This is how [ D] has asked me to stand for him.”

   47.Ms B deposed that on 6 July 2016, she said to the child “[C], today we’re going to let your mummy know about what [D] has done to you, is this okay? I know you must be very frightened when [D] hurt you and we know that all of this is really difficult for you right now.” The child then replied “When [D] pinched me on the vagina, he said ‘[C] open your underwear.’” Ms B deposed that when the child said that she demonstrated by pulling her underwear away from her skin.

   48.Ms B deposed that on two or three occasions the child has said to her “[D] tickles me lots. He tickles me on the bum. [D] is much more playful than my other uncle [J].”

   49.On 7 July 2016, Ms B telephoned the mother and said to her words to the effect of:

   Hi [the mother] this is [Ms B] do you have time to chat I have t (sic) talk to you about something important. It is not going to be a pleasant conversation. I need to let you know that the child (sic) let us know that [D] has sexually abused her, we found a bruise on her vagina when we were giving her a bath. I saw the bruise and I had to report this as I am a public servant.

   Ms B deposed that the mother replied:

   No …, [D] would never hurt the child, I don’t believe you, I don’t believe that [D] would hurt the child, put her on the phone now I have full custody of her.

   Ms B deposed that the mother insisted that the child be returned to her care.

1. Curiously, Ms B did not depose to any matters relevant to the allegations of sexual abuse in her trial affidavit apart from a sentence or two in which she says that she saw a bruise on the child’s pubic bone on 27 June 2016 and that the child was taken to hospital and the police. An earlier affidavit[19] of Ms B was belatedly relied upon during the trial but that affidavit deposed to matters only from 1 July 2016. In the latter affidavit, Ms B says that after the conversation she had with the mother (set out above) she called the mother back to tell her that she and the father had taken the child to the hospital and police. Ms B says that the mother said “this could never happen, you’re making it up. I have never lift (sic) C unsupervised with D.” And that she responded “Well, you must have watched her then.” This last comment seems to indicate that Ms B had a very low opinion of the mother at this point. I also note that Ms B told the mother that the child had a bruise on her vagina. There is no evidence that the child has ever had a bruise on her vagina. Ms B’s use of incorrect terminology is regrettable, to say the least.

   [19] Filed 18 July 2016.

2. Ms B’s explanation for the absence of anything relevant to the sexual abuse allegations in her trial affidavit was unconvincing. She said she thought those matters had all been dealt with. I find that hard to believe given that Ms B and the father still have a close relationship. Indeed, it was to Ms B that the father sought advice when he observed another bruise on the child in June 2019. It is more likely that Ms B hoped that silence in her trial affidavit would avoid critical scrutiny of her persistent questioning of the child in 2016.  Ms B has ensured that very little weight can be placed on anything said by the child. While Ms B’s actions may have been well intentioned, her poor judgment is deserving of significant criticism. It is all the more surprising given that she is a public servant.

3. The father’s evidence in relation to the sexual abuse allegations is set out in his trial affidavit as follows:

   150. I asked C in words to the effect of “How did you get that?” C did not respond. I then heard and observed Ms B have a conversation with C to the effect of:

   Ms B:“C, do you know that you have a bruise on your vagina?”

   C:“Yes.”

   Ms B: “Is it sore?”

   C:“No.”

   Ms B:“You know you can trust us; you can tell us what happened.”

   C:“It was D, he hurt me and he pinches me.”

4. I note that this version is precisely the same as Ms B’s version as set out in Rees J’s judgment from 2016.

5. Additional evidence in relation to the 27 June 2016 events emerged during the trial.

6. Firstly, during her cross-examination, Ms B admitted that on 26 June 2016 i.e. the day before the events of 27 June, she observed a “faint mark” on the child’s pubic bone but did not think much of it.  

7. Secondly, the father’s statement to police dated 30 June 2016 was tendered during the trial.[20] In that statement, the father says that when he saw a bruise on the child’s pubic bone on 27 June 2016 he asked her “how did you get that bruise?” and that “Ms B gave me a look as if to say be quite (sic)”. Ms B confirmed during cross-examination that she had done so. They both agree that Ms B then proceeded to question the child. I note that in the records produced by the Department, the father indicated to the child safety officer during an interview on 11 August 2016 that Ms B asked him to leave the room because he was angry. While the father denied during cross-examination that he was angry, he confirmed that Ms B asked him to leave the room and that he was “shocked” and “upset”. Whether or not he was in fact angry I am left in no doubt that the child would have been acutely aware of the father’s reaction.

   [20] Exhibit 9 page 419.

8. The father’s statement to police provides the following account of the conversation between the child and Ms B on 27 June 2016:

   4. … Ms B asked a few questions, I can’t remember what she said exactly but I do remember she said, “How did you get that bruise?” C said, “I don’t know.” Ms B said, “That looks sore, is it sore, how did you get it there?” C said, “I don’t know.” Ms B, “Was it your Mummy?” C said, “No it was my D. My D pinched me there” Ms B said, “No one should be pinching you there, is it sore.” I left the bathroom I was really upset and didn’t want to hear anymore.

9. The accounts of the conversation overheard by the father on 27 June 2016, as set out in his trial affidavit, and his statement to police are quite different in a number of respects. Importantly, the version provided by the father proximate to the relevant date of these events contains two responses by the child that she did not know how she got the bruise yet Ms B persisted in questioning her on several separate occasions on 27 June 2016 and on several other occasions after that date.

10. The mother said she was unaware if the child had a bruise on her pubic bone when she left her care on 25 June 2016. If the bruise had occurred while in her care, she offered a possible explanation, namely, that the child had hit her pubic bone while swinging on a vertical exercise pole that the mother had in her home at the time. The description given by the mother of the child’s antics while playing on the pole provides a perfectly rational explanation for the bruise. I note that the father referred to the exercise pole in the mother’s home as a “stripper pole”.  The father seemed prone to think the absolute worst of the mother. When asked about the child’s involvement at gymnastics being a possible cause for the bruise during cross-examination, the father expressed extreme distaste for any exercise that may have caused such an injury. Given his description of the child playing on a pole while in his care, a description which seemed entirely innocent, his expression of distaste seemed somewhat hysterical. 

23 June 2019

1. As to the events on 23 June 2019 the father says in his trial affidavit:

   177. C recently spent time with me during the June/July 2019 school holiday period.

   178. On Sunday 23 June 2019, I was getting C ready for a shower when I observed a bruise on her pubic bone. The bruise was acutely defined and it appeared to be new and painful.

   179. As a parent, it caused me great concern to see C with a new bruise on her pubic region. C and I then had a conversation to the following effect:

   Me:“How did you get the bruise C? Can you tell me about it – does your mum know that you have the bruise?”

   C:“Mum saw it in the shower. Mum told me it happened on the pole at School.”

   180. Shortly thereafter, I called my partner Ms T into the room. C is comfortable around Ms T and I was certain that it was not going to cause C any embarrassment. I asked C words to the effect of, “C, can you show Ms T the bruise?”

   181. At that point, C showed Ms T the bruise and said to her in words to the effect of, “are you ok?”

2. The father then caused a letter to be sent to the mother’s solicitor on 27 June 2019 which included the following:

   …

   We understand that your client was aware of this bruise. Given the sensitive nature of the litigation that the parties are currently involved in, we request that in the future, your client notifies our client immediately if she notices bruising of any kind on C.

   …

3. What is not made clear in this letter or in the father’s affidavit is that the child spent time with him for the weekend prior to the June/July holidays commencing on 21 June 2019 i.e. two days prior to the observation by the father of the bruise. The child returned to the mother on 23 June 2019 and returned to him for the holidays on 29 June 2019. The father’s reaction i.e. seeking the mother advise him of any bruising ‘of any kind’ seems completely out of proportion and would necessarily involve repeated inspection of the child’s body before she spent time with the father.

4. Ms N (the father’s current partner) does not mention in her affidavit any observation of the bruise on 23 June 2019. Under cross-examination she confirmed she had seen a bruise but appeared somewhat confused about when she saw it but was definite that it happened shortly prior to them taking the child to the airport to return her to the mother.  Ms N said that she had seen the child naked prior to 23 June but had not noticed any bruise. On 23 June 2019, the father called her into the bedroom where the child was standing wrapped in a towel. The father asked the child to show her the bruise and the child opened the towel. Ms N saw a small dark bruise on the child’s pubic bone. Ms N asked the child if she was okay and she said she was. She asked the child what had happened and the child said something about playing but she could not recall precisely what was said. She said the child had made no complaint of pain or of any injury prior to or on 23 June 2019.

Conduct of the mother indicating alleged minimisation of the risk

1. The father contends that prior to 26 July 2016 (when D was restrained from having any contact with the child), the mother acted in a way that demonstrates she did not accept that D was a serious risk of sexual harm to the child.

2. The father relies upon a number of matters to support his contention, including:

   a)The mother downplayed the seriousness of D’s past offending;

   b)The mother named D as the emergency contact at School O during the period 31 August 2015 to 29 July 2016;

   c)The mother did not provide School O with a copy of the 2012 parenting order (which included the mother’s undertaking that D would not be left alone with the child);

   d)D attended the child’s kindergarten to collect her (the records from the kindergarten indicate that D signed the register on several occasions between 3 March 2015 and 24 August 2015);

   e)Instagram posts demonstrating a close relationship between the mother and D;

   f)The mother’s statement to Ms B during the telephone call on 7July 2016 where she allegedly denied that D would hurt the child; and

   g)Evidence said to support his contention that the child has come into contact with D since 26 July 2016.  

3. The mother denies that she ever downplayed the seriousness of D’s criminal behaviour. In fact, she contends that prior to the child’s birth she told the father as much as she knew about her brother’s offending behaviour because she wanted to impress upon him that their child should never be left alone with D. The father admits that the mother was the original source of information about D but says she downplayed the seriousness of his offending. Whatever was said by the mother it was sufficient for the father to insist upon the mother providing an undertaking in 2012 not to leave the child alone with D.  

4. The mother admits that prior to her submitting a ‘Change to Family Details’ form on 29 July 2016, D was named as an emergency contact for the child at School O and that she did not provide the College with a copy of the 2012 order. She contends that D knew he could not collect the child on his own and the purpose of his being named as an emergency contact was so that he could contact other members of the family. While there is no evidence that D ever collected the child as a result of being the emergency contact, I can certainly understand why the father would be concerned about this. The mother’s explanation does not really make sense. Why another member of her family could not have been named as the emergency contact, as was done in July 2016, was not really explained. In my view, the mother’s decision to name D as the emergency contact without alerting the College to her undertaking demonstrated, at the very least, poor judgment. It should not have occurred.

5. The mother and D deny that he ever collected the child from kindergarten on his own. They contend that he was always accompanied by either the mother or the maternal grandmother and only assisted because of the difficulty with parking. It is also not apparent why D could not remain in the car while the mother or the maternal grandmother collected the child. D should not have attended the kindergarten given his history and in my view, this is another example of the mother’s poor judgment.

6. During cross-examination the mother described her disgust, anger and embarrassment at having a brother who is a paedophile. Despite that, she says that she and D have a close relationship as brother and sister. She says her Instagram photos demonstrate the close relationship she has with her two brothers.

7. The mother denies that she said to Ms B that D would not hurt the child but rather he could not have done so because he was never left alone with her. I accept the mother’s evidence because firstly, she alerted the father to the risk in the first place and secondly this is what Ms B said the mother said to her at least in the second phone call on 7 July 2016 i.e. that she had not left the child alone with D.

8. The father relies upon a number of matters to support his contention that the mother has permitted the child to come into contact with D after 26 July 2016 including:

   a)Phone records indicating D’s presence in or near the same suburb as the mother at around the same time, and frequent telephone communication between the mother and D;

   b)In or around October 2016 the child told him:

   i)That she had been on a Ferris-wheel with D;

   ii)That he had taken her to an amusement park;

   iii)That she had been to the Shop Q with D;

   c)On 1 January 2017 the child told him that D had been present during the fireworks the night before;

   d)On 7 January 2017 the child told him:

   i)That she had received a bike from D and the mother for Christmas;

   ii)“D nibbles my stomach and all over”;

   iii)“but he’s been told not to do it so hard he leaves bruises on my tummy”;

   e)On 25 February 2017 she said she eats Nutella at D’s house when she sees him;

   f)On 8 April 2018 she said:

   i)She had an end of term party with her teacher, Mr R, and “D gave me a present that morning”;

   ii)“He gave me chocolates, but you can’t tell mum - promise?”;

   iii)“uncle D gave me chocolates in the morning before school and I gave him a hug”;

   iv)Her mother was there;

   v)She only has short visits with uncle D and he gives her presents like a fairy book and that this was when her teacher was Ms S;

   vi)“Sometimes he gives Mum chips and chocolate to give to me. Last week Uncle D bought mum a TV and we watched the opening of the television program. D lives with J but still has his unit in the City. I went there when D was there to drop off mum’s paperwork with her”;

   g)From June 2018 to December 2018 the child said:

   i)“Mummy says you are bad. She says this after D comes over to our house”;

   ii)“Mummy says that you are bad and I am not allowed to say anything about D coming over to see me”;

   iii)“D sometimes gives me a cuddle while he has a cup of tea in the kitchen”;

   iv)“Mummy and I gave D sunglasses for his birthday at his unit. Mummy said that daddy can’t know about us going over”.

9. During cross-examination the mother admitted that she sees her brother from time to time but denied absolutely that the child has had any contact with him at all since 26 July 2016. She said that her family know of the restraints the Court has placed on her brother having any contact with the child and would not breach those restrictions. As to the specific statements made by the child to the father, the mother said:

   a)The child did go on the Ferris Wheel with D in about 2013 or 2014 but was not alone with him;

   b)While she could not recall when they went to the amusement park, they went as a family including D;

   c)She did not recall visiting the Shop Q but if the child did go there she would not have been alone with D as he was always supervised;

   d)It is not accurate that her brother was present to watch the fireworks on 31 December 2016;

   e)The child did receive a bike from her and D for Christmas;

   f)The child may well have seen Nutella in her brother’s pantry when they visited there but the child has definitely not been to her brother’s unit while he was there since 26 July 2016;

   g)Her brother gave her (the mother) chocolates and she may have told the child that D had dropped them off;

   h)Her brother did buy her a television but he was not present to watch the opening of the television program;

   i)She has never said the father is bad after her brother comes over to their house;

   j)She has not told the child not to disclose that D comes over because he has not;

   k)She cannot recall ever buying sunglasses for her brother’s birthday and the last time she can recall doing anything for his birthday was 2017 when she took him out to dinner alone.

10. The mother said that prior to 26 July 2016, the child and D had a close relationship and enjoyed playing games together, including physical games, but only ever supervised. The games they played also involved the child pinching D on the arm. Since 26 July 2016, the mother has on occasion been on the phone to D and the child has walked in and made comment indicating her continued affection for D. In around July 2016, the mother spoke to the school principal and the school has a protocol in place that involves calling the police if D attends at the school.

11. With one exception the mother denied that D had ever spent time alone with the child prior to 26 July 2016. The one exception was a brief occasion when the mother had been admitted to hospital and D and the child were dropped off at the hospital by the maternal grandmother and, while she parked the car, they went straight to the mother’s room. D denies having any contact with the child since 26 July 2016. He did not recall ever giving the child a fairy book.

12. I note from the school records that the child had a teacher named Ms S in semester one and two in 2016 and Mr R in 2018.

Conclusion as to whether or not there is an unacceptable risk of harm for the child in the mother’s care

1. It is perfectly understandable for the father to be concerned about the risk D poses to the child. D has a serious history of child exploitation and abuse for which he has been convicted and imprisoned, most recently in 2012.  Given his history of offending I am satisfied that he does pose an unacceptable risk of harm to the child. The mother, father and D consent to injunctions restraining D from having any contact with the child.

2. The father nevertheless maintains that the child is at an unacceptable risk of harm in the mother’s household and should live with him, although he does not suggest that the mother’s time with the child need be supervised.

3. The father put a number of theories to the mother during cross-examination. Firstly, it was suggested that the mother’s past actions demonstrate that she does not regard D as a real risk to the child. Secondly, that she has breached the restraints against D having contact with the child since 26 July 2016 and thirdly, that she knew that her brother had “mishandled” the child (although during submissions the father did not seek such a finding).

4. I have considered in detail all of the evidence relied upon by the father and I have taken particular note of each witness’ evidence and demeanour during cross-examination. I accept that a person with D’s proclivities can be extremely manipulative and deceptive and that extreme caution is required when assessing the evidence given the consequence to the child of making the wrong decision.

5. In 2012 the mother was initially resistant to providing an undertaking not to leave the child unsupervised with D but I accept her evidence that she regarded it as implicit that she would not do so and in the end agreed to provide the undertaking. I accept her evidence about this because it was she who disclosed D’s history to the father in the first place. I accept that she told the father about D so that he would not leave the child alone with him. I reject the father’s contention that she downplayed the seriousness of the risk at that time. But for the mother’s disclosure, there would have been no restrictions contained in the 2012 order.

1. While the mother maintains that the child was never left alone with D prior to the injunctions granted on 26 July 2016 (save on the occasion when they were dropped off at the hospital as mentioned above), and has had no contact with the child since then, it seems to me that the mother has, at times, displayed a somewhat cavalier attitude when it comes to D and the child. For example, prior to 26 July 2016 she lived in the same house as D for about a year; she permitted him to engage in ‘rough’ play with the child; she permitted him to accompany her or her mother to the child’s kindergarten; she permitted him to have a photograph of himself with the child as his Facebook cover page; and she named D as the emergency contact at the child’s kindergarten and school.  The mother has demonstrated a lack of judgment over such matters, which has understandably heightened the father’s concerns. I do not believe that the mother is likely to be so cavalier in the future. I accept that she has been vigilant since 26 July 2016.

2. The bruise observed on the child by the father and Ms B on 27 June 2016 is unlikely in my view to have been caused by D. My reasons for coming to this conclusion include the following:

   a)The mother did not observe the bruise prior to her leaving her care on 25 June 2016;

   b)Neither the father nor Ms B observed the bruise on 25 or 26 June 2016 despite Ms B at least seeing the child naked on 26 June 2016;

   c)Ms B observed a “faint mark” on the child’s pubic bone on 26 June 2016;

   d)According to medical evidence the bruise was not “specific for sexual assault” although it could not be ruled out;

   e)The child had a history of playing on poles (both in the mother’s and father’s care) and her pubic bone would necessarily have come into contact with the pole given the description of her activity;

   f)The child was involved in gymnastics and was otherwise an active child;

   g)The child made no complaint of injury or pain prior to being questioned on 27 June 2016;

   h)The child twice denied any knowledge of how she got the bruise before persistent questioning resulted in her implicating D;

   i)The questioning of the child occurred in the context of the father and Ms B having mentally noted a number of “red flags” prior to 27 June 2016 including the child saying that “D hurt me” and “He pinched me”.

   j)The mother does not deny that the child and D engaged in rough play while supervised;

   k)The child was exposed to the father’s “shock” and “upset” if not his anger when he noticed the bruise on 27 June 2016;

   l)The child was subjected to repeated and persistent leading questions on numerous dates from 27 June 2016 such that no reliance can be placed on anything said by the child implicating D;

   m)Ms B presented as somewhat alarmist and it is likely that she jumped to conclusions given her heightened state;

   n)The father rejected outright the possibility of the bruise being caused accidently which seems irrational given the various activities the child engaged in at the time;

   o)The accounts given by the father and Ms B about what was said to the child and by the child are riddled with discrepancies;

   p)Despite my finding that the mother has at times shown poor judgment, I nevertheless accept that she took the risk seriously and would not have left the child alone with D.

3. The bruise observed on the child by the father and Ms N on 23 June 2019 is unlikely in my view to have been caused by D. My reasons for coming to this conclusion include the following:

   a)The child was in the care of the father for two days prior to 23 June 2019 and despite the child having been naked prior to 23 June 2019, no bruise was observed;

   b)The mother and D were restrained from allowing the child to have any contact with D from 26 July 2016;

   c)The mother was acutely conscious of the risk of losing care of the child if she did not abide by the restraint;

   d)The child made no complaint of pain or injury; and

   e)The child said she got the bruise while playing.

4. I am not satisfied on the evidence that the mother has failed to comply with the injunction for a number of reasons, including:

   a)The phone records do not create a likelihood that the mother permitted the child to come into contact with D. At their highest, they establish the mother and D have had contact and the mother admits to having a continuing relationship with her brother;

   b)To the extent that the mother demonstrated poor judgment in the past the evidence does not establish that she has continued to do so;

   c)The mother was aware, at least by 26 July 2016, that the father was vigilant in his desire to protect the child from D and sought to have the child removed from the mother’s care. Accordingly, her vigilance is likely to have heightened;

   d)The child’s comments suggesting contact with D are not temporally reliable and in any event, prior to 26 July 2016 D was permitted to have supervised contact with the child;

   e)The family report writer, Mr K, opined that the child is an unreliable source of information; and

   f)I have no confidence, given the history, that the statements attributed to the child by the father arose without some questioning of the child, which makes the statements even more unreliable.

5. Finally, I reject the suggestion that I should draw an adverse inference from the failure of the mother to call Mr P and her mother as witnesses. No allegations were made against either of them. The issues for trial did not relate to the mother’s capacity to provide for the day to day care of the child. Mr P is away each second month. Any evidence by him that he had not seen D with the child would not have taken matters any further. Likewise for the maternal grandmother.

Can the mother be relied upon to facilitate the child’s relationship with the father in the future given her alleged past failure to do so?

1. The father is very critical of what he says were unreasonable restrictions placed upon him by the mother in relation to his time and communication with the child. Additionally he contends that the mother has made decisions without consulting him or against his objection e.g. the choice of school. The father submits that the mother’s history of failing to facilitate his relationship with the child supports a change in the child’s living arrangements.  

2. The mother made some concessions that if she had her time over she may not have refused the father’s request to have his then girlfriend present during his time with the child in April 2011 or said that his subsequent girlfriend could not send gifts.

3. The mother’s actions must be considered in context. The child had only recently been born. Up until February 2011 the parties were still trying to salvage their relationship. Yet by 2012 the father had a new girlfriend and wanted her to be present for his time with the child. I do not consider the mother’s insistence that the father spend time with the child without his new girlfriend to be unreasonable when he had spent so little time with the child up to that point. The mother’s concession about the gifts was rightly made. There should have been no problem with the father’s then girlfriend sending gifts from the father to the child. In relation to the choice of school, the mother says that she contacted the father and suggested a particular school for the child. The father did not agree but made no other suggestion. She proceeded with her choice and heard nothing further from the father until the first day of school. It does not seem the father had particularly strong feelings on the subject.

4. The father says that the mother was unreasonable to delay the child’s overnight time with him. However, it is common ground that prior to the commencement of overnight time, the father had been deployed overseas for six months and had spent no time with the child during that period. Both parties admit that they agreed to delay overnight time, although the father now complains about this and points to it as an example of the mother’s failure to facilitate the relationship. I do not see it that way.

5. The mother was found to have contravened the parenting order on three occasions in 2017 without reasonable excuse but there has been no repetition. It might be, as suggested by counsel for the father, that the mother learned a salutary lesson as a result of those proceedings. It is common ground that the mother has complied with her obligations since 2017 and that the child has a close and loving relationship with the father.

6. Even though the mother’s past conduct was unreasonable on occasion, I do not consider that to be a reliable indicator of her future capacity to facilitate the child’s relationship with the father. This is because all current indicators suggest the mother now supports and facilitates the child’s relationship with the father and has done so since at least 2017.  

What is the likely impact on the child of a change in her primary care arrangements?

1. There can be no doubt that a change in living arrangements would be traumatic for the child although, according to Mr K (the family report writer), the impact would not be as significant now as it would have been in 2017. This is because the child now has a secure and loving relationship with the father.  However, the child has lived all her life with her mother and according to Mr K, removing the child from the mother would involve a major disruption to her primary attachment figure for which she would require considerable professional assistance.  A change in living circumstances would not only mean removal from the mother but removal from all that she has known up to this point including school, extended family relationships, friends and extracurricular activities. Mr K recommended against a change in the child’s living arrangements unless a finding of unacceptable risk were made against the mother.

2. To his credit, the father acknowledges the trauma the child would likely experience if removed from the mother. The father says he would ensure the child had professional support and he would take all reasonable steps to ensure his employment commitments did not interfere with his ability to provide support personally. I accept that the father would do all that he could to assist the child to make the transition.  

3. If the child lived with the father there would be an additional adjustment for the child in that she would also be living with Ms N whom she has had very little to do with. The father’s relationship with Ms N is comparatively new. They only commenced living together in May this year.

4. I would only consider changing the child’s living arrangements if I found that there was an unacceptable risk of harm from the mother’s household or if the child would not be able to maintain a meaningful relationship with the father if she remained with the mother. I have not made those findings.

Is the child at risk of psychological and emotional harm in father’s household given his belief that the child has been sexually abused?

1. The father presented as very fixed in his view that the child has been sexually abused by D. He dismissed any suggestion that he might be mistaken. The father was insistent that the child undergo counselling on the premise that she had been sexually abused.

2. Mr K opined that the child does not believe she has been sexually abused and that it would be very damaging to proceed to counselling upon a premise that she had been abused if she has not. I accept his opinion.

3. There is certainly a risk of hypervigilance on the part of the father and that does present a risk to the child. However, I consider that the risk can be ameliorated by the imposition of injunctions as recommended by the ICL.  

what parenting order is proper?

1. Given my findings, it is the child’s best interests to remain living with the mother. It is, however, common ground that the father’s time with the child should increase and an order to that effect will be made.

2. Up until the time submissions were made, the father and mother had agreed that they should continue to exercise equal shared parental responsibility about major long term issues. During their oral evidence each parent expressed a commitment to jointly making necessary decisions and there do not appear to have been any major long term issues in the past that have involved serious dispute.

3. The mother belatedly changed her position upon hearing the ICL’s recommendation for her to have sole parental responsibility. The ICL submitted that the parties have demonstrated an inability to effectively communicate and are unlikely to be able to reach agreement about major long term issues in the future. Additionally, it was submitted that an order for sole parental responsibility to the mother would be least likely to result in further legal proceedings.

4. However, apart from the choice of school, neither party raised any other example of them being unable to reach agreement about a major long term issue. In the end, the father acquiesced in the mother’s choice of school. In the absence of evidence about any particular major issue that may be problematic in the future and in circumstances where both parties agitated for a continuation of equal shared parental responsibility until the last minute, I am not persuaded that it is in the child’s best interests to change the arrangement that has been in place since the 2012 order.

5. The father has expressed fixed views that the child is a victim of sexual abuse and maintained a wish to have her counselled on that premise. I intend to restrain the father from causing the child to be counselled unless the mother provides her prior written consent.

6. The father and Ms B still have a close relationship and while I expect that Ms B and the father have learnt from their past mistakes I nevertheless consider it necessary to restrain the father from discussing matters relating to sexual abuse with the child or permitting anyone else to do so.

7. The parents were able to agree on a number of specific issues and they will be incorporated in the order I make.

8. As to the costs of the child’s airfares, I propose to continue the current arrangement for the father to pay the cost of airfares until 2023 when the mother anticipated her studies would be complete and she would be re-joining the workforce. From that time the cost of airfares will be shared equally.

9. I do not propose to make the very broad injunctions against the parents as sought by the ICL i.e. restraining any discussion about the proceedings with the child. My decision not to make that order is not intended to give tacit approval to the parents doing so but rather the form of the order is unenforceable and places the child in the position of being the source of information from which a parent may seek to challenge the other parent’s compliance.

10. The father sought an order requiring the return of toys, clothes etc. but I was not taken to any evidence to support such an order and accordingly I will not make it.

11. The existing parenting order provides that the father spend only two weeks with the child during the Christmas school holidays. The order I propose to make will extend the father’s time with the child to one half of the holidays but as the Christmas school holidays have already commenced, the 2012 order will continue in effect for this year unless the parents agree to the contrary.   

12. While there is an existing final parenting order, it has been varied on a number of occasions over the years and I propose to make a number of further changes to the 2012 order. Accordingly, it seems appropriate to discharge all previous parenting orders and replace them with one comprehensive parenting order.

Conclusion

1. I have found that the child will not be exposed to an unacceptable risk of harm if she continues to live with the mother. I have also found that the mother is more likely than not to facilitate the father’s time with the child despite there being occasions in the past where she has failed to do so. In those circumstances, I do not propose to change the child’s living circumstances.

2. While I have found the father poses a risk of emotional and psychological harm to the child because of his fixed belief that the child has been sexually abused I am satisfied that the risk can be ameliorated by specific restraints against the father discussing those matters with or in the presence of the child.

3. There is agreement between the parties and the ICL that the child’s time with the father should be increased and an order to that effect will be made.

4. The parents have historically had equal shared parental responsibility and I have not found it to be in the child’s best interests to change what has been in place since 2012.

I certify that the preceding one-hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 20 December 2019.

Associate:

Date:  20 December 2019