Department of Communities and Justice and Coley & Anor

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES AND JUSTICE & COLEY AND ANOR

[2020] FamCA 853

FAMILY LAW – CASE GUARDIAN – Where there is an application for the appointment of a Case Guardian for the mother – Where the mother has suffered severe injuries due to a fall – Where the mother is still competent to give instructions – Where the mother’s legal representatives could take instructions – Application dismissed.

FAMILY LAW – INTERIM PARENTING – Where there are allegations of sexual abuse perpetrated by the child’s half-brothers – Where there are serious doubts about the allegations – Where all evidence is before the Court – Where the child seeks a relationship with her brothers – Where there is not an unacceptable risk – Where the mother’s time is supervised – Order for supervised time once a month at the direction of the Department of Communities and Justice.

Forster & Forster (2012) 47 FamLR 77
L v Human Right and Equal Opportunity Commission (2006) 233 ALR 432

APPLICANT:

Secretary, Department of Communities and Justice

1st RESPONDENT:

Ms Coley

2nd RESPONDENT:

Mr Coley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1401

2015

DATE DELIVERED:

9 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moore

SOLICITOR FOR THE APPLICANT:

Crown Solicitors Office

COUNSEL FOR THE 1ST RESPONDENT:

Ms Snelling

SOLICITOR FOR THE 1ST RESPONDENT:

City Lawyers And Consultants

COUNSEL FOR THE 2ND RESPONDENT:

Ms Sproston

SOLICITOR FOR THE 2ND RESPONDENT:

Sharon Moss Legal

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Norris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That the application for the appointment of Case Guardian for the mother is dismissed.
That pending further order, the child X, born … 2011, shall spend supervised time with the mother as directed by the Secretary of the Department of Communities and Justice or his nominee and the Court NOTES that it is intended that such contact will occur once each month but will be subject to ongoing review dependent on the mother’s attendance and presentation.
That Order 4 made 4 December 2018 is discharged.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 Department of Communities and Justice & Coley and Anor 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 SYDNEY

FILE NUMBER: SYC 1401 of 2015

Secretary, Department of Communities and Justice

Applicant

And

Ms Coley

Respondent

And

Mr Coley

Second Respondent

REASONS FOR JUDGMENT

On 4 December 2018, I delivered reasons and made interim orders which placed the child, who is now eight years old, in the care of her father, Mr Coley and which provided that the child have contact with her mother, Ms Coley, once each week, supervised as approved by the Secretary of the Department of Family and Community Services (as he then was).
The parties to these proceedings are the mother, the father, the Secretary, now of the Department of Community and Justice (“DCJ”) and an Independent Children’s Lawyer (“ICL”).
The concerns that faced the Court then, as now, were the mother’s allegation that the child had been sexually abused by her older half-brothers while in her father’s care and the allegations of DCJ and the father that the mother’s alcohol abuse and her psychological abuse of the child required that the mother’s time with the child be supervised.
As a result of the orders made on 4 December 2018, the child has not spent any time with her half-brothers and it has been extremely difficult for them to spend time with their father.
The substantive matter was listed for hearing in March 2020.
On 27 September 2019, the mother fell from a balcony while intoxicated, climbing between balconies after she had locked herself out of her apartment. She suffered horrific injuries, including traumatic brain injury, injuries to both feet, fractures to both femurs and knees, facial fractures and dental injuries. She was hospitalised until 29 January 2020. On the day she was discharged from the rehabilitation facility, she went to a hotel and was eventually admitted to hospital with a blood alcohol reading of 0.4 and an overdose of prescription pain medication.
The applications before the Court were filed when it became obvious that, because of the mother’s injuries and her inability to attend scheduled interviews with the single expert, Dr U, the report of Dr U would not be available in sufficient time and thus the hearing dates were vacated.
In the substantive proceedings, the dispute is now limited.
It does not seem to be in dispute that the child will continue to live with her father.
The mother, as I understand her case, accepts that the child will not live with her but wants her time with the child to be unsupervised, or in the alternate, supervised by her parents rather than by professionals.
Those would appear to be the limits of the dispute.
The present applications, all filed by the DCJ, relate to a number of matters:
·    An application for the appointment of a Case Guardian for the mother.
·    An application to vary the frequency with which the mother spends supervised time with the child.
·    An application to discharge the orders made on 4 December 2018 which prevent the child from having any contact with her half-brothers.
The applications were supported by the father and the ICL.
The mother sought the dismissal of all applications.
Dr U substantive report was available and in evidence.
The Magellan report was also in evidence.

APPOINTMENT OF A CASE GUARDIAN FOR THE MOTHER

The mother opposes the application.
The mother is represented by a solicitor and by experienced counsel.
In L v Human Right and Equal Opportunity Commission (2006) 233 ALR 432, the Full Court of the Federal Court framed the law as this:
There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs.
The Full Court of the Family Court held in Forster & Forster (2012) 47 FamLR 77 that this presumption cannot, nor should it be, easily displaced.
Before me today, counsel for the mother said that she had had two conferences with the mother and that both she and her instructing solicitor had no qualms about accepting the mother’s instructions.
The application was occasioned by a letter from Dr U, prepared at the request of the ICL, after he had conducted interviews with the mother on 13 February 2020.
Dr U had a two hour interview with the mother on 13 February 2020 and also observed her for 90 minutes with the child. After the observation, he had another discussion with the mother for about an hour.
Dr U reported:
·    The mother’s responses were frequently tangential;
·    She was preoccupied with thoughts that were inconsistent with evidence;
·    She was easily distracted;
·    When challenged, she became distressed and was unable to provide a cohesive response.
He concluded,
…it is unlikely that [the mother] is, in my opinion, currently remotely able to manage the duration of a 10-day hearing – due to physical pain and rapidly fluctuating attention/concentration coupled with poor memory, and general cognitive disorganisation.
Counsel for the mother relied upon the discharge summary prepared by the rehabilitation facility dated 29 January 2020. This was a multi-disciplinary report of 23 pages. The contributors included a psychologist and a neuropsychologist.
In relation to the mother’s cognition, the reporters stated:
…her attendance was inconsistent and consequently the scope of the assessment was limited. In addition, at times she tended to engage at a superficial level which may confound the validity of the findings. She was observed to remain reasonably focused during tasks, though she tended to be impulsive in her responses.
They stated:
On formal testing, compared to premorbid estimates of at least average intellectual function, [she] remained well oriented to person, time and place. Her immediate auditory span remained within the average range and her capacity to sustain her concentration over a prolonged duration was preserved.
The report concluded:
From a cognitive perspective, [she] has the capacity to manage independently in the community.
Whilst I accept that the mother, and those representing her, will face some challenges in their conduct of the hearing, I am not satisfied that she is unable to instruct her lawyers or that she does not understand the nature and process of the hearing.
I give particular weight to the fact that experienced counsel has assured the Court that she has been able to obtain instructions over two conferences with the mother.
I do not accept the mother lacks the competence to manage her affairs. I do not propose to appoint a Case Guardian.

REDUCTION OF THE MOTHER’S TIME WITH THE CHILD

The current orders provide for the mother to spend supervised time once each week.
That time has not been occurring for a number of reasons. The DCJ has cancelled visits because the mother did not confirm that she would be attending; the mother has cancelled visits and the mother’s injuries precluded visits for some time.
However, the main reason for the application by DCJ is that there are not sufficient resources available to facilitate the visits.
In the current climate of social isolation due to the COVID-19 virus, DCJ is giving first priority to maintaining contact between parents and their children who are in out of home care, that is, not living with either of their parents.
The agency to whom supervision has been contracted in this case is unable to guarantee that it will continue to provide any services to DCJ and other agencies who provide similar services are in the same position.
In addition, the two supervised contact centres which are proximate to the area where the child lives have both closed.
I accept the submission on behalf of DCJ that it is not possible to facilitate the child’s spending time with the mother weekly and the orders will be varied as requested by DCJ.

APPLICATION TO DISCHARGE THE ORDERS PREVENTING THE CHILD FROM SPENDING TIME WITH HER HALF BROTHERS.

The application to discharge the relevant order is made by DCJ and supported by the father and the ICL. On behalf of the DCJ and the ICL it is submitted that the Court will not find that contact between the child and her half-brothers poses an unacceptable risk to the child.
The application relates to the order made in December 2018 which operated to prevent the father from allowing either of his sons from his first marriage, Mr Y now aged 21 years and Z now aged 17 years, to have any contact with the child.
At the time that order was made, it was anticipated that the matter could be heard in mid-2019. Unfortunately, the matter was not ready to proceed on the dates which had been reserved, primarily because the mother had been refused Legal Aid and was not in a position to proceed. Further dates were allocated in March 2020 but those dates also had to be vacated because of the mother’s injuries. When the present application was heard, there was no possibility of further dates being allocated because of the consequences of the COVID-19 pandemic.
All of these factors combine to have the effect that the father’s ability to spend time with his sons, and the child’s ability to have a relationship with her half‑brothers, may be compromised until the second half of 2020, a consequence that could not have been foreseen when the orders were made.
The mother opposes the application. She relies on an affidavit sworn by her on 17 March 2020; two affidavits of the maternal grandmother sworn 9 March 2020 and 18 July 2019 and an affidavit of the maternal grandfather sworn 18 July 2019.
It is the mother’s case, variously iterated, that either Z or Mr Y or both of them, have sexually abused the child.
Dr U, in his report, noted that the mother’s proposal in relation to final orders was that the child not be allowed any contact with her half-brothers or with her older half-sister Ms W who is now aged 23 years.
The mother alleges that the child reported to her that the child has seen Ms W engaged in sexual acts with the father.
Dr U has interviewed Ms W, Mr Y and Z who each strenuously deny the mother’s allegations.
Both the father and Mr Y have sworn affidavits setting out the detrimental effect that the order made in December 2018 has had on Z and Mr Y and their ability to maintain a relationship with their father.
It is relevant to note that the father’s former wife, Ms J, and the father have maintained a respectful relationship and that both she and Ms W have, at times, cared for the child so that the father could spend time with Z and attend school events at Z’s school.
There is considerable evidence that the child wants to spend time with her extended paternal family.
On 5 March 2019, the child’s psychologist, Ms B, reported to DCJ that the child said “I miss my brothers and sisters [sic], Z, Mr Y and Ms W”.
The contact supervisor reported that, on 26 September 2019, when she and the child were driving to meet the mother, the child asked if the supervisor could tell the Court things. The supervisor said “sort of”. the child said,
I just really want my family together, I want my brothers and my sister, it’s just me and dad and I want my brothers and sister too, can you tell them?
Dr U reported, after his interviews in October 2019,
The child recalled that she used to reside with her mother. She stated, 'I got separated with my two brothers and I can't see them', referring to Mr Y and Z. She was unsure why she was not allowed to see her brothers, but stated that things had changed, and she now lived with her father. She was aware that her father was unable to spend much time with her brothers. The child reported that she missed seeing her brothers and wanted to see them as often as she gets to see Ms W. She stated, 'I want us to come back as a really big family', referring to her father, brothers, sister, her maternal and paternal grandparents, paternal aunty and uncle and paternal cousins. She reiterated and checked that the clinician had written in his notes that ‘I want to live with my dad forever… did you write forever? Make sure Judge reads forever'.
Dr U reported
The child understood that her mother had made reports about her brothers, hence she was not permitted to see them. The child stated that she has not seen her older brothers in 'a long time'. She remembered Mr Y for being a protective older brother, particularly when she fell over whilst playing outside. She described memories of them riding Ms J's horses. She recalled Z as being her 'best brother', who would help her with homework, 'play tip' with her, and that they would go 'fishing at the water'. The child reported that she enjoys Ms W's company, but wanted to be part of the bigger family.
Dr U reported that, when he observed the child with her mother,
The child suddenly asked her mother in a solemn and serious tone, 'You might get sad if I tell you something about dad.' She stated 'I really miss Mr Y and Z and Ms W. Please can you tell the court so we can be a family again?' [The mother] tensed and stated 'No. I won't say thaf [sic] in a brusque tone.
Dr U stated that the restrictions on the child’s contact with her half-brothers compound the extent of “loss” that the child feels.
He concluded that the child would benefit from having ongoing contact with her half-siblings and that, “Regrettably the current proceedings have had also had a significant cost on Z's relationship with his father.”
On 17 December 2019, the child asked her present psychologist, Ms AA, if she were “the court” as she wanted to see her brothers.
On 17 December 2019, the child told Ms AA that she used to have a good family with her brothers but she isn’t allowed to see them anymore.
On 18 January 2020, when the child was taken to visit her mother in the rehabilitation facility, the supervisor noted,
The child said clearly [to her mother] “I wish I could see my brothers, I miss them,” [The mother] was vitriolic in tone with her response and said something like; well that’s because of me, things were going on that weren’t ok, I stopped that. The child looked confused and looked querying [the mother’s] reply. The child said “at least I get to see my sister”.
I accept that the child wants to spend time with her half-brothers and that there is benefit to the child from having an on-going relationship with them.
The issue to be determined is, as in every case where allegations have been made that there is a risk to a child from being brought into contact with an alleged abuser, whether that risk is an unacceptable risk.
In order to determine the nature of the risk asserted in the mother’s case, it is necessary to examine in some detail the evidence of the mother’s allegations and the child’s disclosures. Some of the narrative that follows is taken from the reasons for judgment delivered on 4 December 2018.
I note that in the course of submissions in relation to this issue, counsel for DCJ tendered material generated by the mother which had been produced on subpoena by the NSW Police. That material was classified by the police as “child abuse material” and strict conditions were imposed upon its inspection. The material had been kept securely and was only able to be inspected in the presence of a Court Officer. Some of the material was in the nature of audio and video recordings taken by the mother of the child. The material was tendered physically in Court but was not viewed or played in Court.
The first record of a complaint of sexual abuse being made by the mother was made is found in a telephone call by the mother to the Child Helpline on 30 December 2015.
I note that, on 30 December 2015, the child was four years old, Mr Y was 17 and Z was 13.
The mother said that the child had told her on three separate occasions that she had been sexually abused by her half-brothers.
The first disclosure, according to the mother, happened when she was putting cream on the child’s genitals. The notes record,
…[the mother] told her child that no one is to touch your vagina, except mummy and grandma. The child then replied, “but Mr Y does”... [The mother] stated where? [the child] pointed in between her legs. [The mother] asked is that the truth and [the child] laughed and said no.
…
…a second incident occurred when [the mother] was putting cream on her finger to put on her vagina because it again looked red and inflamed. [The mother] then said to [the child] that no one touches you here, not even mummy. [the child] replies, but Z does.
The third incident occurred on 28th December travelling to QQ Town… during the travels [the child] told her mum that she needs to tell her something, she said that Z touches me on the vagina… [The mother] asked where? At my daddies…[The mother] spoke to [the child] again and asked her what had happened. [the child] said that Z touched her on her vagina and she told him to stop 3 times but he wouldn’t and then he touched me on my bottom.
(As per the original)

The matter was referred to the Joint Investigation Response Team (“JIRT”).
The child was interviewed by JIRT on 11 January 2016. A transcript of the interview was tendered. The child spoke in positive terms about her half-brothers and was adamant that no one had touched her inappropriately.
Some of the child’s statements in the interview were fanciful. She said that her friend AB had died in the park; that her brothers eat cats and that she has younger siblings aged 5, 6 and 7.
When the interviewer resorted to leading questions such as “Well somebody told me that you may have told somebody that you were touched on the vagina” (a somewhat complicated proposition to put to a four year old), the child agreed but what she was agreeing to is unclear. Was the child agreeing with the proposition that the interviewer was told something or with the proposition that the child told someone something? In any event, when asked “Who touched you on the vagina?”, the child did not respond.
The following exchange occurred:
Interviewer:     Somebody also told me that you might have said that somebody touched you on the bottom. Did you tell somebody that somebody touched you on the bottom?
The child:     Yeah
Interviewer: Who did you tell?
The child:     Mum…
Interviewer: Can you tell me who touched you on the bottom?
The child:     Don’t know.
JIRT did not substantiate the allegations.
On 20 March 2018, DFCS received a report of an alleged disclosure by the child to the effect that the mother’s then partner, Mr C, tied her up and sent her to her room. The child said that Mr C tied her up with a rope and covered her mouth and she was not let out until her mother untied her. It is accepted that Mr C is severely disabled and would not have been capable of tying the child up.
On 4 May 2018, DCJ received a report. This was detailed in the Magellan Report in the following terms:
The child attended the school counsellor’s office accompanied by the mother alluding to a “secret” the child had with her brother, Z.
The child has made a further disclosure telling the reporter about a “Stuck in the mud game” that Z played with her. The child said the chase was around the inside of her thighs and “it” would go into her vagina and bottom hole.
Between 5 May and 9 May 2018, there were five further reports that the child was continuing to allude to being sexually abused.
On 9 May 2018, the discharge summary produced by H Hospital, noted that the child was presented to the hospital for examination having been complaining to the mother about painful urination and pain around her genitals. The child had been seen by her general practitioner earlier in the week and vulvovaginitis had been diagnosed. The hospital notes state: “[The mother] looked at area this evening as the child told her she felt something was coming out. Noted what she reports is something that looks like a cervix, so presented for review”.
The mother told the triage nurse that she wanted the JIRT interview to take place and would like the child to be tested for sexually transmitted infections. The notes record that the child was examined by a consultant who noted:
Gentle, non-invasive examination of genitalia completed following verbal consent from mother and the child ... no evidence of bruising or erythema noted on examination.
No obvious discharge present, noted to have slight whitish exudate not thought to require treatment.
Normal female genitalia identified – mother pointed out area of concern that she considered similar to cervix – but normal anatomy only visualised, with no tissue consistent with cervix.
The notes record that the child provided a urine sample and denied any pain on urination.
On 16 May 2018 the mother provided her phone to Police stating that it contained video and audio recordings of the child making disclosures of sexual assault. The material includes a video of the child naked while the mother filmed the child’s genital area. The officers took the mother’s phone and told her that she was not to film, record or question the child about the allegations of abuse.
The material from the mother’s phone was in evidence. It included photographs to which reference is made later in these reasons, audio recordings and video recordings.
Counsel for DCJ relied on an audio recording made by the mother on her phone and entitled “the child discloses”. The recording lasts for 23 minutes and 12 seconds. A number of matter arise on listening to the recording.
·    The recording clearly does not begin at the start of the conversation. The recording commences with the mother saying to the child “do you want to tell me what you experienced…when you were in that position and you were alone with Z… And as I said, I’ve been there. It happened to me too…”
·    There is reference in the recording to a conversation the previous day between the mother and the child. At about 13 minutes and 17 seconds the mother says “No, well it’s not what you were saying from yesterday”.
·    The mother on a number of occasions, in addition to that with which the recording commenced, tells the child that she herself was an abused child. She says, for example, “I’ve been there. This happened to me” and “…this was my experience… did Z tell you something would happen to me if you told anyone?”
·    The child is told she is not being “brave” if she declines to talk or the mother perceives the child is not telling the truth. For example, the mother says “…you are not telling the truth, no you’re not being brave” or “I’m wondering if you’re being brave?” When the child says something that is acceptable to the mother she says “Thank you for being brave”.
·    The child’s tone when she denies, repeatedly, that Z has “kissed you on your private parts” is indignant.
·    The last 10 minutes of the recording show the mother asking manifestly leading questions and attempting to persuade the child to agree with a version on the game that the child has described as “Stuck in the Mud” that makes the game into a gross sexual assault on the child which takes place when Z comes into the child’s bedroom in the night. The child has described “Stuck in the Mud” as a chasing game where one person catches and “tags” other players. Once a person is tagged they are “Stuck in the Mud” and have to stand with their legs apart. The “stuck” person can only be released by another participant crawling through their legs.
·    The recording clearly displays the mother’s attempts to have the child agree with the mother’s version of the alleged abuse.
It would be unlikely that this is the only conversation about allegations of abuse that the mother has had with the child.
The next recording is a video recording, taken on the mother’s phone of the child in the bath. At the beginning of the recording, the mother is heard to whisper “the child’s in the bath. The first time since the disclosure. I’m leaving my phone in there”. The recording lasts for 5 minutes and 56 seconds and shows the child, naked, playing happily in the bath with toys, variously sitting and standing. It is obvious that the child does not know she is being filmed and equally obvious that her permission was not sought to make the recording.
The third recording is of extreme concern. This is a video recording made by the mother lasting 1 minute and 19 seconds. The recording shows the child lying on her back, naked from the waist down, with her legs in the air. The mother films the child’s genitals, perineum and anus holding the camera inches from the child between her spread legs and uses her finger to trace what she alleges to be a suspicious mark in the child’s genital area, all the while giving a spoken commentary.
In relation to the material on the mother’s phone, the records of the NSW police state:
In relation to the video, and photos of the Genitals of [the child], the content would be considered child abuse material…
In relation to the other material located on the phone as described, the sheer amount and nature of recordings gives rise to concerns for the welfare of young persons experiencing this within the family home.
Whilst protectiveness of parents is encouraged, it appears that [the mother] is fixated with her child being abused and is subjecting the child to regular questioning, challenging her answers, engaging in leading conversation, taking overt/covert video and voice recording and touching the childs [sic] genital areas whilst recording.
Investigators have concerns that this behaviour may have serious implications on the mental health of the young person, being that it may groom her to believe this normal, may embed fictitious memories in her mind and, if an assault has occurred she may be confused between [the mother’s] words/memories and her own. She may also be discouraged from disclosing to investigators due to the relentless questioning and non acceptance of her answers by [the mother].
The concerns expressed by the police accurately describe the material recorded on the phone and their conclusions about the effect on the child are valid.
A consideration of the recording gives rise to considerable doubt about the validity and credibility of any evidence of the mother about any alleged disclosure made to her by the child. For that reason I have not included in this narrative every alleged disclosure of abuse said to have been made to the mother or the maternal grandparents, by the child but have concentrated on what the child has told third party, professional interviewers.
The child was interviewed again by child protection workers on 16 May 2018. She spoke positively about Z. When the interviewer said “so someone told me that you spoke to the school counsellor and said that sometimes you and Z play special games; can you tell me about that?” The child replied “Was that my mum?”
The child told the interviewer that she played special games like hide and seek, stuck in the mud, tag, fairy tale games, video games, cats, monsters and books but they were not secret.
The child reported that she enjoyed playing “stuck in the mud” with her mum, dad, brothers, and cousins. She said she played the game outside, in the front garden, but wasn’t sure whose front garden it was.
She denied that Z visited her in the night and said that she slept in her own room at her father’s house and Z slept in his and didn’t visit her. The child said she had no secrets and no one had asked her to keep a secret. She denied that anyone had touched her inappropriately. She said that she feels safe at her father’s house.
The child was interviewed by child protection workers on 29 May 2018. During that interview, she referred to her father as “Uncle” but understood that he was her father. The child was asked how often she saw “Uncle” and replied “Not very much…not allowed to see him but… will if I talk to you two”.
Later in the interview, the child was asked whether there was anything worrying her and she replied “Z touching my ‘giny”.When asked to indicate on a drawing where her giny was, the child marked the genitals. The child said this happened at Uncle’s house. She also said that she didn’t want to talk about it. Nevertheless the interviewer persisted. The notes of the interview are handwritten and not a full transcript. In the handwritten transcript “C” is the interviewer. The notes record:
S.Saw Z touching my giny and then Z touched my butt, accidentally… him in the face and went back to sleep
C.       Where were you
S.        in Aboriginal world
C.       Where in Uncle’s house
S.        I live Aboriginal with family and Uncle lives in Australia.
C.       Who told you to talk to us?
S.        Mum.
The interview appears to have been stopped and resumed later that morning with another interviewer referred as “AE”.
The handwritten notes record:
AE.     Did Z touch ‘gina’?
S.        If said “no” is that ok?
AE.     Yes, as long as it’s the truth.
S.        OK
AE.     Why did you ask OK to say no?
S.        He did it.
Having regard to the mother’s repeated attempts, less than two weeks earlier, to persuade the child as demonstrated in the audio recording, that she had been abused by Z, the child’s expressed concerns that Z either might touch her genitals or had touched her genitals must be treated with extreme caution.
Records produced by the New South Wales Police, state that on 1 June 2018, the mother telephoned the police stating that the child had been sexually abused and that the police were not helping. The mother also stated that she wanted to kill herself. When the police arrived at the mother’s home at 6.30pm, the mother pushed the child towards the police stating “Now is your time to talk”. the child began to explain that her half-brother would “put his bits on her face”. The police noted that the child continually looked at her mother, as though requiring prompting. The police noted the mother appeared very scattered, highly delusional and erratic. She had large fixed pupils and would often jump from being highly belligerent to being overcome with emotion, screaming things like “My daughter was fucked in the arse”. When police tried to calm the mother down, she grabbed hold of the child and began to run through the house screaming at police to “get the fuck out of her house”.
While at the hospital, the mother repeatedly yelled at police that her daughter was “fucked in the arse” and that it was not being investigated. The police noted that the mother was very fixated and obsessive towards any persons within her reach, often staring for long periods of time, and then becoming very hostile and abusive towards these persons. The mother had no recollection of running away from the police at her home. The mother was scheduled under section 22 (I presume of the Mental Health Act 2007 (NSW)) and the child was placed in the care of the maternal grandmother.
New South Wales Ambulance records relating to the incident on 1 June 2018, state that when the ambulance officers arrived the mother was initially handcuffed and then walking around the home, at one stage stating that her lawyer was standing outside listening to everyone’s conversation. The ambulance noted that the mother was being extremely erratic and irrational, especially to police officers and that the mother “Had no issue with talking in front of her daughter in regards to the claims that she has been making and using explicit language.” The ambulance officers noted that the mother admitted having drunk alcohol that evening and also stated that she had not been taking her medication. In the ambulance on the way to the hospital, the ambulance officers noted that the mother said “I am proud of you X, you said everything just right”. The ambulance officers noted that the mother was tearful and crying both in the home and in the ambulance.
Ms J, the father’s former wife, swore an affidavit on 13 June 2018. She deposed to a telephone call from the mother on 9 June 2018 where the mother told her:
I must tell you as a mother, the child tells me she is sick of seeing [the father’s adult daughter] and dad in sexual positions all the time because it upsets her.
Ms J deposed that the mother continued:
The child also said that the real reason [the father’s adult son] broke his leg wasn’t the horse, it was because dad kicked him in the shin and pushed him down the stairs and broke his leg.
Ms J deposed that she told the mother that when her son broke his leg, the father was not present but that she had witnessed the accident when her son caught his foot in a stirrup. Ms J deposed that she heard the mother say words to the effect of:
“X! X! What have we been practicing all week about lying? Stop telling lies”.
Ms B, the child’s therapist, noted that on 27 June 2018, the child attended at her therapy session with a letter which she handed over at the beginning of the session. The letter read:
Ms B
[The half-brother] has been doing bad things to my jinu.
The child handed the letter over to Ms B in front of her mother. Ms B noted that the child very clearly wanted her to have the letter. Ms B asked the child “How did you know how to spell my name?” And the child replied “Mummy told me”. Ms B asked the child how she knew what to write and the child did not answer. Ms B asked if her mother had told her what to write and the child said “Yes”. The child said that it was her idea to write the letter saying “My idea cause it’s the truth. OK? [sic]”
Asked how she had written the letter the child said “I thought about it in the car. Mummy said it might get me medicine.” The child said she needed medicine because she was scared of the dark.
Ms B asked the child if she had written the letter all on her own and the child said “Mummy helped me”. When asked what mummy helped her with, the child said “Mummy helped with the words”.
The child told Ms B “mummy got out the pen and said ‘perhaps you should write to [Ms B]’”.
Ms B noted that later in the session, she again raised the question of the letter with the child, and asked the child whether or not the things that she was complaining about were still happening and the child replied “Yes”. Ms B said “Do you still see [the half-brother]? And the child said “No”. Ms B queried how the things could still be happening if the child was not seeing [the half-brother].
At the end of the session, Ms B thanked the child for the letter and the child said “I want medicine, can I have medicine now?” Ms B said “Remind me why you want medicine”. And the child said “Medicine takes away your fears.”
Ms B asked the child “Will mummy be happy or sad about this letter do you think?” And the child replied, “Happy. Definitely happy.” Ms B noted that at the end of the session, the child said “Does that mean I can get my medicine now”?
On 26 July 2018 the mother was interviewed by the police in relation to the recordings on her phone which had been confiscated by DCJ on 16 May 2018.
Included in the material produced by the police were photographs of the child, apparently naked, asleep in bed with Mr C. The photographs were taken by the mother, “Because they were both sleeping so peacefully and I thought that they look lovely”. The mother said that both the child and Mr C “had undies on”. In one photograph, the child’s body is visible below her thigh and there is no indication that she is wearing underwear.
The mother told the police that she had, on one occasion, taken photographs of the child’s vagina and anus using her phone. She said she took the photographs because the doctors at H Hospital weren’t listening to her and she needed evidence. In relation to the videos of the child recorded on her phone, the mother said that the recordings were made because she needed evidence.
On 27 July 2018, Ms B wrote a letter to the child’s general practitioner stating, inter alia,
It became evident to me in the first session that mum’s own anxieties about the child’s disclosures have complicated things, and I encouraged her to be reassured by my role and the child’s need for time and space to process what has happened. I understand the child’s father’s… parenting orders have been suspended and I have therefore not contacted him to date.
The child’s therapist, Ms B, noted that on 30 July 2018, the child told her that she had been pushed by a boy at school one hundred times. Ms B said “Did you make that up?” and the child replied “Yes”. Ms B told the child “You shouldn’t make things up… because when you tell the truth people won’t know you’re being serious.” The child told Ms B “I’m scared my mum might get angry.” When asked whether her mother got angry a lot, the child said “Yes, alot [sic]. She sometimes forgets I’m a kid”. Ms B asked how the child knew that and the child said “Because she told me last night” ... she said “Sometimes I forget you’re a kid and think you are an adult’”.
On 7 August 2018, the child told the maternal grandmother that her Z had been mean to her and tied her up. The child said “He tied me up in a net you know and pushed me in the water.”
The maternal grandmother deposed that on 19 August 2018, she said to the child “Remember you were going to tell us what happened after Z pushed you into the water” and the child responded “It was sticky”. The maternal grandmother said “I hope you told an adult” and the child responded “I told mum”. The maternal grandmother said “But your mum would have been at her house ...” The child said “Yes I told [the father]”. The maternal grandmother said to the child “And what did [the father] do?” the child responded “He hit Z on the bum. Another time he did it he hit Z on the face ...”

Mr L, a family therapist, who had been conducting therapy for the mother, Mr C and the child, in a report dated 31 August 2018, noted:
An area to work upon was that was [sic] seen throughout these sessions, was that [the mother] would initially allow the child the space to engage in the conversation, but as it progressed, would frequently begin to interpret on the child’s behalf or steer the conversation towards the child’s alleged sexual abuse.
Mr L stated:
Areas of concern that are still being worked upon are primarily around the family’s ongoing struggle with the idea of the child’s alleged sexual abuse and the impact this belief has had on the family; primarily the impact this has had on [the mother’s] perceptions around keeping the child safe and an all-consuming desire to have the child’s experiences known. This particular behaviour by [the mother] has been raised as being potentially harmful to the child, forcing a narrative that may confuse her by believing particular events did actually occur, when they may not have, or may have occurred in a different manner; as well as potentially keeping the child in a perpetual state of living in a traumatic moment, whether real or imagined.
The child has lived in her father’s care since 4 December 2018. Since that time she has had only supervised contact with her mother. I am not aware of any evidence that the child has made any complaint since that time in relation to alleged sexual abuse.
In November 2019, the child stopped seeing Ms B who went on extended leave and Ms AA became the child’s therapist.
The child’s first session with Ms AA was on 17 December 2019. The child told Ms AA that her mother had tied her up with a rope. Ms AA made a report to DCJ.
At the next session on 17 January 2020, Ms AA asked the child if she remembered what the child had told her in their last session. The child said “Oh yes, when I told you mum tied me up”. The child demonstrated to Ms AA how she was tied up, using a doll and string and making sure that the string went around the doll’s mouth. The child said that she was tied up for “an hour or hours” and that when she was untied “We had a party”.
In her notes of the session with the child on 25 February 2020, Ms AA records that she believes that the child has “experienced some form of trauma”
The child has so far given four different versions of being tied up. Firstly she said that Mr C tied her up. She told the maternal grandmother in August 2018 that Z tied her up and she told Ms AA that the mother tied her up. Dr U reports that the child told him that a female police officer tied her up.
Dr U in his report stated;
The clinician observed the child to share her own views honestly, though that said, it is still considered that the child also showed a tendency to narrate stories that she thought adults might want to hear. Given [the mother’s] past efforts in coaching and reinforcing the child to exaggerate her narratives, it is not surprising that the child may subconsciously believe that she will gain attention from exaggerating her stories… The clinician would suggest to the Court that whilst the child is generally able to express her views truthfully and accurately. She has also learnt that telling stories where she was hurt will garner greater attention This appears to be consistent with Ms W's observations as well, that the child may sometimes distort her narrative of events.
In relation to the mother’s interactions with the child, Dr U stated;
This clinician would suggest that [the mother] evinces manic traits and/or potential thought disorders. Compounding her cognitive capacity is also the traumatic brain injuries sustained from her fall in September 2019. That said, her thought disorders and paranoia appear to have manifested prior to her fall…
Relapsing alcohol dependence in the form of binge drinking appears to be a major problem for [the mother]. She continues to experience recurrent episodes of severe alcohol abuse. Alcohol appears to be a useful lubricant that helps her reduce tensions, enhances her self-esteem, and provides quick dissolution of psychological pain. Whilst she has no insight and remains oblivious to the impact of her alcohol use, it is likely that that alcohol helps her cope with feelings of unease, loneliness, and agitation. Alcohol serves to undo her sense of alienation and to bolster her diminished self-confidence. Of most concern, is the impact of severe alcohol use on [the mother’s] mental health state. On the basis of a number of reports from independent sources, there is a pattern of persecutory paranoia and potentially alcohol induced psychosis that drives [the mother] to believe that the child has been sexually assaulted, a set of beliefs which now persist during her periods of sobriety. Even when presented with evidence to suggest the contrary, [the mother] remained fixated on this preoccupation. She has already subjected the child to distressing police involvement, invasive reviews and interviews, and has videotaped the child in attempts to elicit a disclosure or confession. This has caused the child significant psychological harm whilst she was in her mother's care.
Taken together, [the mother] meets criteria for Substance Abuse Disorder (Severe) Upon review of supplied documentation and assessment of [the mother], this clinician suggests that she is likely to meet diagnostic criteria for alcohol induced psychosis, whereby during previous periods of intoxication she formed delusions about the child being sexually assaulted and that her own father had sexually assaulted her, which persist to the present. At assessment, she evinced jumbled and disorganised thoughts, confusion, agitation, difficulties carrying on or keeping on track of conversations, evinced inappropriate laughter, trouble concentrating, and manic symptoms.

DISCUSSION

It is highly unusual in a case involving unsubstantiated sexual abuse to make interim orders that would allow a child regular overnight contact with those against whom allegations were made.
The allegations made by the mother are serious and have been sustained by her over a number of years. They have been detailed, in various forms, to a number of individuals including psychologists, social workers and police officers.
However, the mother’s evidence in relation to the child’s disclosures is unreliable.
The child herself is an unreliable historian. It is no longer possible, if it has ever been possible, to be confident that what the child says is drawn from her own experience rather than being an artefact of the mother’s sustained indoctrination of the child.
Unusually in interim proceedings, all of the evidence in relation to the allegations of abuse is now before the Court.
Also unusually in interim proceedings, an expert has had the opportunity not only to interview and assess the parties and the child but also to consider the extrinsic and intrinsic evidence.
Although untested, the evidence before the Court has raised serious doubts about the veracity of the allegations made by the mother against Z and Mr Y.
It is to be remembered that the mother objects to the child being in contact with not only her half-brothers but also with Ms W, although, with the exception of the conversation reported by Ms J, the basis of the objection to Ms W is not clear.
Further to this, on 8 April 2019, the mother was reported by DCJ in a telephone call “ranting that no one cares her child’s father is a paedophile”. The basis of that assertion is not explained.
The mother’s allegations, although serious, are often unexplained. Those that are explained, such as the alleged marks on the child’s genitals, raised no concerns from medical professionals and were found to be unsubstantiated following investigation. The child’s account of the game ‘stuck in the mud’ could not reasonably lead to the inferences made by the mother.
It is not possible to discount the possibility that someone has acted improperly towards the child but it seems clear that the child now denies that either of her half-brothers, or anyone else, has done so.
The state of the evidence is such that it would be extremely difficult to make a finding, on the balance of probabilities, that the child has been abused as the mother alleges or at all.
It is highly unlikely that any final orders would be made which would have the effect that the child can never come into contact with her half-brothers.
The child has expressed strong views that she should be reunited with her brothers.
The entire paternal family, including Ms W, Mr Y, Z, the father and Ms J are alert to the allegations and the need to ensure that there is no possibility of the child being in a position where her safety might be compromised.
It would be a sensible caution if the child were not left in the sole care of either of her half-brothers, both for her benefit and for theirs but I do not propose to make such an order because of the possible consequences to them if such orders are required to be given to people or authorities other than the parties to these proceedings.
I am satisfied that the child will be vigilantly supervised by her father and Ms W both for the child’s welfare and to protect Mr Y and Z.
In those circumstances, the benefit to the child of having a relationship with the whole of her extended family outweighs the risk of harm caused to her by being in contact with her half-brothers.
The order made on 4 December 2018 will be vacated.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 April 2020.

Associate:

Date: 9 April 2020

[2020] FamCA 853

9 April 2020

Key Legal Topics

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Family Law

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Natural Justice

Procedural Fairness

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