Donnelly and Collinson

[2018] FCCA 1774

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONNELLY & COLLINSON [2018] FCCA 1774

Catchwords:
FAMILY LAW – Interim parenting – whether an unacceptable risk of harm to Children – supervised time ordered.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV

Cases cited:

Goode & Goode (2006) FLC 93-286

MRR v GR [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768

Vasser & Taylor-Black [2007] FamCA 547

W and W (abuse allegations: unacceptable risk) [2005] FamCA 892

WK v SR (1997) FLC 92-787

Applicant: MR DONNELLY

Respondent: MS COLLINSON

File Number: WOC 1191 of 2017

Judgment of: Judge Altobelli

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Wollongong

Delivered on: 2 August 2018

REPRESENTATION

Solicitors for the Applicant: Haille Paine Solicitors

Solicitors for the Respondent: Bowral Legal

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Wollongong Family Law

ORDERS

1. That the Children [X] (born 2012) and [Y] (born 2013) live with the Mother.

2. The Children will spend time with the Father at the CatholicCare Children’s Contact Centre at Suburb A (‘the contact centre’) as follows:-

   (a)The visits will be supervised by staff at the contact centre;

   (b)The visits will occur at such times and on such dates as are nominated by the contact centre;

   (c)Subject to (d) below, the Father will pay for all costs associated with supervised contact (including but not limited to his own intake costs, the privately funded rate until such time as subsidised visits are available, and the subsidised rate thereafter);

   (d)The Mother will pay for her own intake costs and the costs of the preparation of all contact reports.

   (e)In the event concerns are raised by CatholicCare to the Independent Children’s Lawyer prior to the commencement of the supervised time, the Independent Children’s Lawyer will approach Chambers to seek an urgent relisting of the proceedings.

3. That, without admissions, each parent is restrained by injunction from:-

   (a)speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children; and/or

   (b)discussing any legal proceedings between the parents or the parental relationship or the children’s future spending time arrangements in the presence or hearing of the Children or permitting any other person to do so.

4. That, without admissions, the Father is restrained by injunction from:-

   (a)taking, consuming and/or being affected by any illicit substance while the Children are in his care; and/or

   (b)consuming alcohol while the Children are in his care; and/or

   (c)consuming alcohol twenty-four (24) hours prior to any period of time that the Children come into his care.

5. That Order 1 of the Interim Orders made on 16 March 2018 will continue until 30 June 2018, however, in the event the Father provides a further result which shows a creatinine level below 1.8mmol/L and/or a positive result, Order 1 will continue until such time as the Father provides two (2) consecutive negative tests with creatinine levels above 1.8mmol/L.

6. That the Father will undergo random Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.

7. That in order to facilitate Order 6 above:-

   (a)The Independent Children’s Lawyer will send a request by no later than 12pm by email to the Father’s solicitor;

   (b)Such requests will be sent no more frequently than once every two (2) calendar months;

   (c)By no later than 6pm on the third business day following the request, the Father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;

   (d)The Father is responsible for the cost of such testing;

   (e)At the time of attending for the purpose of facilitating the testing, the Father shall:

   (i)Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Donnelly (born 1986); and

   (ii)Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the Father confirming his identity;

   (f)Once the results are released to the Father, he will ensure that a copy is forwarded to his solicitor no later than the next business day;

   (g)The Father’s Solicitor is to forthwith forward a copy of the results to the Independent Children’s Lawyer and the Mother’s Solicitor.

8. That the Mother is restrained by injunction from making arrangements for the Children to attend upon any counsellor, social worker, psychologist or psychiatrist without the written consent of the Father.

9. That each parent will ensure that the other parent is kept informed of:-

   (a)any serious medical problems or illnesses suffered by the Children;

   (b)any medical emergencies involving the Children;

   (c)any medication that has been prescribed for the children that needs to be taken during the time the Children are with the other parent;

   (d)any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (e)any change to their mobile telephone number (with the other parent to be notified of any change within twenty-four (24) hours);

   (f)any other matter relevant to the welfare of the Children.

10. That, for the purpose of Order 9 above, the parents will communicate by SMS / text message and that each parent will ensure that this communication is brief, factual and limited to the relevant parenting issue only.

11. That this Order operates as the authority of each parent to enable the Independent Children’s Lawyer to speak to the coordinator and staff at the CatholicCare Children’s Contact Centre and obtain any other relevant information.

12. That each parent will enrol in and complete the first available Keeping Kids in Mind post separation parenting course at CatholicCare (or a similar parenting after separation program at Uniting or Relationships Australia).

13. That leave is granted to the parties to file Consent Orders in Chambers regarding the preparation of a Single Expert Report to be prepared by Clinical / Forensic Psychologist with experience in risk assessment, sex offender assessment and treatment and violent offender assessment and treatment.

14. The matter be adjourned to a date to be fixed.

15. The matter is listed for a 4 day Final Hearing commencing on 5 August 2019 at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1191 of 2017

MR DONNELLY

Applicant

And

MS COLLINSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two Children: [X], who is six years old, and her brother, [Y], who is five years old. The Children have not spent time with their Father since February 2017. They currently live with their Mother. These reasons for Judgment explain why the Court has ordered that the Children have supervised contact with their Father, at a supervised contact centre.

Background

1. The Father is the Applicant. He is 32 years old. He describes himself as a (occupation omitted) who lives in the Region 1 of New South Wales. The Respondent Mother is 26 years old. She, too, lives in the Region 1 of New South Wales. The relationship between the parents was a tumultuous one. They commenced their relationship in 2011 and separated, for the last time, in 2015, or 2016. Nothing turns on the precise date of separation. Between cohabitation, and the last separation, the parents had separated for periods of time.

2. What seems reasonably clear from the evidence is that up until February 2017, the Father was spending frequent time with the Children, including overnight time.

3. On or about 11 February 2017, [X] made a disclosure whilst at the home of the Maternal Grandmother. The Maternal Grandmother, the Maternal Uncle, his fiancé and the Mother appeared to have been present. Whilst there are slightly different versions of what took place, it seems likely that [X] was on the couch, with her Maternal Uncle, and reached over and grabbed his penis through his pants. A conversation took place. [X] disclosed that, in effect, she touched her Father’s private parts, and her Father touched her private parts.

4. [X]’s disclosures precipitated a predictable chain reaction of responses from the Mother, the New South Wales Police and the New South Wales Department of Family and Community Services. The Mother ceased all contact and communication between both Children, and the Father.

5. It was not until 17 November 2017 that the Father commenced the present proceedings. The Mother filed her Response on 15 January 2018. An Independent Children’s Lawyer was appointed on 29 January 2018. The Interim Hearing, in respect of which these reasons for Judgment relate, took place on 31 May 2018. Mr Leary, Solicitor, appeared on behalf of the Applicant Father. Ms Campbell, Solicitor, appeared on behalf of the Respondent Mother. Ms O’Donnell, from the Legal Aid Commission of New South Wales, appeared as Independent Children’s Lawyer for both Children.

6. The issue at the Interim Hearing was under what circumstances should the Children be spending time with their Father.

The competing proposals

1. The Father proposed that, after two by two hour visits at a supervised contact centre, his time with the Children then progress to each Sunday between 9 am and 5 pm, in the presence of paternal family, and then alternate weekends from 9 am Saturday, to 5 pm on Sundays. In short, the Father’s case was that there was no unacceptable risk of harm to the Children, arising from the evidence before the Court. His proposal for supervision reflected the reality that he has not spent time with the Children for over a year and, implicitly, recognised the Mother’s subjective concerns and anxieties.

2. Both the Mother, and the Independent Children’s Lawyer, propose that the Father spend time with the Children at a supervised contact centre. The Independent Children’s Lawyer’s proposal, however, was more nuanced. If the Court believed that there was an unacceptable risk of harm to the Children, then supervised contact at a centre should be ordered. However, if the Court found that there was no unacceptable risk of harm, then there should be six visits at a supervised contact centre, and then weekly visits from 5 pm each Saturday, on an unsupervised basis. Whereas the Mother’s case was that the evidence clearly demonstrated an unacceptable risk of harm, the Independent Children’s Lawyer’s case was more nuanced, but nonetheless urged the Court to proceed cautiously, notwithstanding the concerns that the Independent Children’s Lawyer had about the evidence. As it turns out, the Court shares the Independent Children’s Lawyer’s concerns about the evidence, but nonetheless accepts that it must, in the circumstances, proceed cautiously.

3. It is common ground that expert evidence is needed in this matter, and the Independent Children’s Lawyer is leading the process in this regard. Given the lengthy delay between the date of disclosures, and the date of the Interim Hearing, and further having regard to the anticipated lengthy delay in obtaining expert evidence, the Court has set this matter down for Hearing over four days, commencing 5 August 2019.

The evidence before the Court

1. In the Father’s case, he relied on the following documents:

   a)Initiating Application of Mr Donnelly filed 17 November 2017;

   b)Affidavit of Mr Donnelly filed 5 April 2018;

   c)Affidavit of Mr Donnelly filed 17 November 2017.

2. In the Mother’s case, she relied on the following documents:

   a)Response of Ms Collinson filed 15 January 2018;

   b)Affidavit of Ms Collinson filed 17 May 2018;

   c)Affidavit of Ms Collinson filed 15 January 2018.

3. In the Independent Children’s Lawyer’s case, she relied on the following documents produced pursuant to subpoena requests:

   a)Documents produced by South West Sydney Local Health District;

   b)Documents produced by Ms A;

   c)Documents produced by NSW Police;

   d)Documents produced by The Kindergarten;

   e)Documents produced by Ms K;

   f)Documents produced by Town A Health Centre.

4. There was an issue at the Interim Hearing about whether each parent should be permitted to rely on late filed affidavits. As it turns out, the Court has taken these late filed documents into account but notes that the material contained therein has had no impact on the Court’s determination of the matter.

Material prepared by the Independent Children’s Lawyer

1. Ms O’Donnell, as Independent Children’s Lawyer, has gone to extraordinary lengths to assist the Court in deciding this clearly complex matter. Ms O’Donnell filed a Case Outline document, a Minute of Interim Orders Proposed, written submissions, and an extensive Chronology. The Court reproduces each of these documents in separate schedules to this Judgment. It also expresses its appreciation to Ms O’Donnell for the extensive effort in preparing this case, but with particular reference to the Chronology. The Court was able to compare the documents produced on subpoena and tendered on evidence, as well as the Affidavits referred, to the summaries contained in the Chronology. The Court has satisfied itself that the Chronology is an accurate summary of the evidence before the Court.

2. Ms O’Donnell’s preparation for this case is outstanding. She is well-aware of the pressures on the Court’s Wollongong Registry. Urgent Interim Hearings are generally listed for 30 minutes, either at 9 am, or 2 pm, generally on a busy trial day. This is clearly a complex case. There is voluminous evidence. The fact that Judgment was reserved, and is being delivered in writing, reflects the complexity. A different style of advocacy is required in this context. A good advocate places greater reliance on written advocacy, often in the form of written submissions, case outlines, and detailed chronologies. The evidence filed in this case, by the Independent Children’s lawyer, was extremely useful to the Court.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:

   92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.

   Unacceptable risk test

   (a) What is meant by “unacceptable risk”?

   93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.

   94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:

   “(i) The reality of sexual abuse

   The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.

   ...

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”

   95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:

   “courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”

   96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:

   “In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

   ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

   His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.

   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. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the 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.”

   97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

   98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:

   “The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-

   ‘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.’ (at page 77,081)

   The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   ...

   It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”

   99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.

   100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.

   101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.

   102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:

   “With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”

   103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:

   “Coleman J, as well as Dr F, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”

   104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:

   “Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”

   105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

   “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

   This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”

   106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:

   “There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

   107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:

   “...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”

   108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:

   “Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”

   109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.

   110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:

   “Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”

   111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

   (b) The contact issue

   112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.

   113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.

   114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.

   115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

1. In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:

   In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

2. In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:

   18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
   WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

   19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.

3. In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:

   38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."

   39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.

4. Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.

   45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.

5. It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.

6. Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:

   At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:

   When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent.  In order to weigh the competing risks, the court should analyse what the risk is.  To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk.  (paragraph 5).

7. It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.

Discussion about the evidence

1. The fact of [X]’s sexualised behaviour, and subsequent disclosures is well-documented. Whilst both the Father’s case, and the Independent Children’s Lawyer’s case, were appropriately critical of the absence of affidavit evidence from those members of the Mother’s family who were witnesses to the event in question, the fact is that their statements are documented elsewhere. The focus of the Father’s case was not, for example, that the sexualised behaviour did not take place, or that [X] did not make disclosures. The focus of the Father’s case was on what happened afterwards and, in particular, the fact that the Apprehended Violence Order that had been taken against him was withdrawn, and both the departmental and police investigation was terminated.

2. The Father also, supported by the Independent Children’s Lawyer, quite appropriately pointed out some of the inconsistencies in what evidence there is before the Court about [X]’s disclosures. Those inconsistencies clearly exist. It is a common feature of these cases. It does not make the Court’s task in assessing risk easier, but neither are inconsistencies conclusive of absence of risk. The fact that [X] did not repeat her disclosures, on subsequent formal investigation, does not explain her sexualised behaviours and the disclosure she made. The much deeper assessment which can only be achieved by expert evidence, is clearly required.

3. The Court is assessing risk of abuse, and not making a determination as to whether what [X] disclosed in fact took place, or whether her disclosure was actually true. There are disturbing aspects of the Mother’s behaviour after the disclosures were made, but these are more properly the subject of forensic assessment during the course of the preparation of a report, as well as a cross-examination at a Final Hearing. The Mother’s subsequent actions, again, do not necessarily cast doubt on the implications of [X]’s actions, or on her disclosures.

4. The Father’s approach to this case was inappropriately simplistic. In reality, the detailed Chronology prepared by the Independent Children’s Lawyer manifests a level of complexity in this family that would have warranted an extremely conservative approach to the reintroduction of the Father’s time to the Children, even without what took place in February 2017. When the allegations are factored in, a clear conservative approach is warranted. For example, what if the Court simply accepted the Father’s case, proceeded on the erroneous assumption that there was no unacceptable risk of abuse, reinstated the Father’s time with the Children, but then a further disclosure was made? Even putting aside the most important consideration of the impact on [X] and her brother of this occurring, there is the impact on her Mother, and there is the clear risk to the Father, of the subsequent disclosure by his Children.

5. In this regard, therefore, an Order for supervised contact not only protects the Children, but it protects their Father from further disclosure and allegations and thus, in effect, preserves the chance of an ongoing relationship between the Children and the Father. The Order for supervised contact is, thus, the least of the worst options in this case. It is the most protective option from the Children’s perspective, but possibly also from the Father’s perspective. Supervised contact at a contact centre preserves the Children’s relationship with their Father, optimises that relationship being meaningful, whilst at the same time is protective of any risk of harm to them. Whilst there are many other considerations the Court must have regard to under section 60CC of the Act, for present purposes, none are determinative. They are all subsidiary to the need to protect the Children from harm.

6. It is possible, of course, that an Expert Report will result in an opinion that there is no unacceptable risk of harm to these Children. It is possible that a hearing will result in the same conclusion. Neither conclusion should be pre-empted. If the Father continues to see his Children on a regular basis, even at a supervised contact centre, there is at least the foundation from which to rebuild what appears to have been the good relationship he had with them in the past. It is certainly not over yet, from the Father’s perspective. This case has a long way to go. If the Expert Report can be obtained in a timely fashion, there may even be another opportunity to revisit the appropriateness of the present orders.

7. The Court notes, in passing, that the Mother’s case for supervised contact was based not just on the Child’s sexual abuse allegations, but also based on allegations of family violence and abuse of drugs and alcohol. Whilst the Court certainly does not minimise the seriousness of these allegations, it does nonetheless observe the glaring inconsistency between the making of these serious allegations, and what appears to be a consistent record of the Children spending time with their Father in the post-separation period. In any event, the Orders proposed by the Independent Children’s Lawyer are more than adequately protective. The order provides for both and urine and CDT testing. The Court has no doubt that the Independent Children’s Lawyer will be appropriately conservative in requesting tests, which are no doubt expensive for the Father and which, hitherto, have not resulted in positive indications.

Orders in the best interests of the Children

1. The Orders will be in accordance with the Minute proposed by the Independent Children’s Lawyer, with the exception of order 3(a) and (b).

2. The Court urges the Independent Children’s Lawyer, and the parties, to seek to obtain an appropriate Expert assessment as soon as possible. The Court will bring this matter back for mention in six months’ time, to review progress with the Father’s time, as well as progress with the report. Leave will be granted to file orders in chambers, appointing a suitable Expert.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for Judgment of Judge Altobelli

Date: 2 August 2018

Schedule 1

CASE OUTLINE PREPARED BY THE
INDEPENDENT CHILDREN’S LAWYER
Interim Hearing – 31 May 2018 at 9am

A. THE CHILDREN

[X] (born 2012, aged 6 years & 3 months) [Y] (born 2013, aged 5 years & 3 months).

B. PROCEEDINGS

The father filed an Initiating Application on 17 November 2017 proposing that Interim Orders be made for him to spend time with the children each alternate Saturday from 9am to 5pm.

The father is now proposing in his Case Outline (filed 23 May 2018) that Interim Orders be made for the children to live with the mother, for the children to spend two (2) initial supervised visits with him at CatholicCare Suburb A, for the children to then spend time with him each alternate Saturday from 9am to 5pm, for telephone communication three (3) times per week, a non-denigration Order restraining the mother only, discharge of the random urinalysis testing Orders made on 16 March 2018 and for the mother’s affidavit filed 17 May 2018 to not be read.

The mother filed a Response on 15 January 2018 proposing Interim Orders for the children to live with her, an Order for the children to spend no time with the father, Orders restraining the father from contacting or approaching the mother, children or maternal grandparents, a ‘Child and Parents Issues Assessment’ to be prepared by the Court’s Child Dispute Service and for the appointment of an Independent Children’s Lawyer.

The mother is now proposing in her Case Outline (filed 24 May 2018) that Interim Orders be made for the children to live with her, for the children to spend supervised time with the father at CatholicCare Suburb A (with the father to pay for the costs of the supervised contact and the mother to pay for the costs of the contact reports), for the preparation of a Family Report, for the father’s affidavit filed 5 April 2018 to not be read, for the father to continue random urinalysis testing, for the father to undergo random liver function and CDT testing.

The issue to be determined at the Interim Hearing is whether the children should spend time with the father, whether that time should be supervised time at CatholicCare for a limited number of visits and then move to unsupervised daytime only visits, pending the

Sworn	Filed
Applicant Father’s material
Initiating Application	17.11.2017
Notice of Risk	17.11.2017
Affidavit – Mr Donnelly	14.11.2017	17.11.2017
Affidavit – Mr Donnelly	05.04.2018	05.04.2018
Case outline – Interim Hearing	23.05.2018

Respondent Mother’s material
Subpoena – Town B Primary School	11.12.2017
Subpoena – Family and Community Services	11.12.2017
Subpoena – Medical Clinic	11.12.2017
Subpoena – NSW Police	11.12.2017
Response	15.01.2018
Notice of Risk	15.01.2018
Affidavit – Ms Collinson	15.01.2018	15.01.2018
Affidavit - Ms Collinson	17.05.2018	17.05.2018
Case Outline – Interim Hearing	24.05.2018

Independent Children’s Lawyer’s material
Subpoena – South West Sydney Local Health District	03.04.2018
Subpoena – Ms A	03.04.2018
Subpoena – NSW Police	03.04.2018
Subpoena – The Kindergarten	03.04.2018
Subpoena – Dr K	03.04.2018
Subpoena – Town A Health Care Centre	03.04.2018

E. DOCUMENTS RELIED UPON BY THE INDEPENDENT CHILDREN’S LAWYER

Portions of the documents produced under subpoena

F. CHRONOLOGY

Attached (which also includes reference to subpoena material not as yet tendered in the proceedings – the Independent Children’s Lawyer has sought and obtained the consent of the parties to file the chronology prior to the Interim Hearing and proposes that it be utilised by His Honour as an ‘aide memoir’ until the subpoena material is tendered).

G. WRITTEN SUBMISSIONS – RELEVANT s60CC FACTORS

The Independent Children’s Lawyer’s written submissions will be circulated early next week.

Clare O’Donnell

Independent Children’s Lawyer
25 May 2018

Schedule 2

MINUTE OF INTERIM ORDERS PROPOSED BY THE
INDEPENDENT CHILDREN’S LAWYER

1. That the children [X] (born 2012) and [Y] (born 2013) live with the mother.

1. That, in the event the Court finds on an interim basis that there is an unacceptable risk – the children will spend time with the father at the CatholicCare Children’s Contact Centre at Suburb A (‘the contact centre’) as follows:-

   (a)  The visits will be supervised by staff at the contact centre;

   (b)  The visits will occur at such times and on such dates as are nominated by the contact centre;

   (c)  Subject to (d) below, the father will pay for all costs associated with supervised contact (including but not limited to his own intake costs, the privately funded rate until such time as subsidised visits are available, and the subsidised rate thereafter);

   (d)  The mother will pay for her own intake costs and the costs of the preparation of all contact reports.

2. That, in the event the Court finds on an interim basis that there is no unacceptable risk – the children will spend time with the father as follows:-

   (a)  For six (6) supervised contact visits at the CatholicCare Children’s Contact Centre at Suburb A (‘the contact centre’) as follows:-

   (i)    The visits will be supervised by staff at the contact centre;

   (ii)  The visits will occur at such times and on such dates as are nominated by the contact centre;

   (iii)Subject to (iv) below, the father will pay for all costs associated with supervised contact (including but not limited to his own intake costs and  the privately funded rate for the six (6) visits);

   (iv)   The mother will pay for her own intake costs and the costs of the preparation of all contact reports.

   (b)  Subject to Order (c) below, thereafter on each Saturday from 12pm to 5pm as follows:-

   (i)    Changeover will occur in the play section of McDonalds, Town B;

   (ii)  The mother is restrained by injunction from bringing the maternal grandmother to changeover;

   (iii)   Each parent is restrained by injunction from bringing more than one other person to changeover (and they are to ensure that this person does not actively participate in changeover);

   (iv)   The parent arriving with the children will deliver them to the parent collecting the children and will immediately leave the changeover location and will not remain in the vicinity for any more than five (5) minutes;

   (v)  Each parent will ensure that face-to-face communication between them that occurs in the children’s presence is limited to pleasantries only and each parent will ensure that they do not raise any parenting issue in the children’s presence that is likely to cause tension between them.

   (c)  In the event concerns are raised by CatholicCare to the Independent Children’s Lawyer prior to the commencement of the unsupervised time in Order (b) above, the Independent Children’s Lawyer will approach Chambers to seek an urgent relisting of the proceedings.

1. That, without admissions, each parent is restrained by injunction from:-

   (a)  speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children; and/or

   (b)  discussing any legal proceedings between the parents or the parental relationship or the children’s future spending time arrangements in the presence or hearing of the children or permitting any other person to do so.

2. That, without admissions, the father is restrained by injunction from:-

   (a)  taking, consuming and/or being affected by any illicit substance while the children are in his care; and/or

   (b)  consuming alcohol while the children are in his care; and/or

   (c)  consuming alcohol twenty-four (24) hours prior to any period of time that the children come into his care.

3. That Order 1 of the Interim Orders made on 16 March 2018 will continue until 30 June 2018, however, in the event the father provides a further result which shows a creatinine level below 1.8mmol/L and/or a positive result, Order 1 will continue until such time as the father provides two (2) consecutive negative tests with creatinine levels above 1.8mmol/L.

4. That the father will undergo random Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.

1. That in Order to facilitate Order 7 above:-

   (a)  The Independent Children’s Lawyer will send a request by no later than 12pm by email to the father’s solicitor;

   (b)  Such requests will be sent no more frequently than once every two (2) calendar months;

   (c)  By no later than 6pm on the third business day following the request, the father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;

   (d)  The father is responsible for the cost of such testing;

   (e)  At the time of attending for the purpose of facilitating the testing, the father shall:

   (i)    Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Donnelly (born 1986); and

   (ii)  Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the father confirming his identity;

   (f)   Once the results are released to the father, he will ensure that a copy is forwarded to his solicitor no later than the next business day;

   (g)  The father’s solicitor is to forthwith forward a copy of the results to the Independent Children’s Lawyer and the mother’s solicitor.

2. That the mother is restrained by injunction from making arrangements for the children to attend upon any counsellor, social worker, psychologist or psychiatrist without the written consent of the father.

10. That each parent will ensure that the other parent is kept informed of:-

(a)  any serious medical problems or illnesses suffered by the children;

(b)  any medical emergencies involving the children;

(c)  any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;

(d)  any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

(e)  any change to their mobile telephone number (with the other parent to be notified of any change within twenty-four (24) hours);

(f)   any other matter relevant to the welfare of the children.

11. That, for the purpose of Order 10 above, the parents will communicate by SMS / text message and that each parent will ensure that this communication is brief, factual and limited to the relevant parenting issue only.

12. That this Order operates as the authority of each parent to enable the Independent Children’s Lawyer to speak to the coordinator and staff at the CatholicCare Children’s Contact Centre and obtain any other relevant information.

13. That each parent will enrol in and complete the first available Keeping Kids in Mind post separation parenting course at CatholicCare (or a similar parenting after separation program at Uniting or Relationships Australia).

14. That leave is granted to the parties to file Consent Orders in Chambers regarding the preparation of a Single Expert Report to be prepared by Clinical / Forensic Psychologist with experience in risk assessment, sex offender assessment and treatment and violent offender assessment and treatment.

Schedule 3

Independent Children’s Lawyer’s Written Submissions

Relevant case law

W & W {Abuse allegations: unacceptable risk} [2005] FamCA 892 (21 September 2005) paragraphs 92 – 115 (Annexure A)

Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 paras 18-19 (referring to WK v SR (1997) FLC 92-787) and para 45 (Annexure B)

Vasser & Taylor-Black [2007] FamCA 547 (7 June 2007) para 52 (Annexure C)

Goode & Goode [2006] FamCA 1346 paras 68,72,82 (Annexure D)

Unacceptable risk

In order to assist the Court in determining whether there is an unacceptable risk, questions such as the following need to be considered:-

What is the nature of the events alleged to have taken place?
The mother says that she and the children were at the maternal grandmother’s home on about 11 February 2017 – the maternal grandmother, maternal uncle and his fiancé were present. [X] was on the couch with the maternal uncle and she reached over and grabbed the maternal uncle’s penis through his pants. The maternal uncle said “O no, [X], we don’t do that. Those are my private parts and you don’t touch other people’s private parts.” The mother says that [X] said “I touch Daddy’s private parts, he touches my boff and sometimes it hurts and sometimes it tickles.” Mother says that on the drive home [Y] said unprompted “When Daddy and I play that game my bum doesn’t hurt.” (M affidavit 15.01.2018 paragraphs 5-9).
The mother says that when she spoke to the father by telephone after the alleged disclosures she said to him “[X] did something very inappropriate to my brother and then she said she does that with you and you do it with her. [Y] told me a couple of hours later that you do things to him as well.” (M affidavit 17.05.2018 paragraph 3).
[X] saw Dr C at Medical Clinic on 13 February 2017 – “Today mother noticed that <[X]> was trying to touch her uncles…genitalia, and when mother and uncle questions about that behaviour … she explained that, they use to play this “game” with her father…and also she has explained that some times her genitalia is sore after these events. Mother is worried and stopped sending them to her father for the last couple of weeks.” (Medical Clinic – ICL 3 – ICL 17, page 27-28). It is unclear why reference is made to the mother not having sent the children for the last couple of weeks when the alleged disclosure occurred about 2 days prior.
Dr C prepares referral letter to Town C Hospital on 13 February 2017 – in referral letter for [Y] it notes “[Y]’s sister has given history of sexually abuse by her father and [Y] has also given some symptoms of depression. And mother is worried that [Y] also involved in the situation.” (Medical Clinic – S3 – ICL 17, page 27,28 and ICL 24 and ICL 28, page 25 and ICL 29). No reference to alleged disclosure made by [Y] in the car.
FACS Contact Record – Helpline – 13 February 2017 - “[X] was touching her uncle’s penis and the mother asked [X] why she was doing this and [X] replied that this is the game she plays with the father. [X] also allegedly complained of soreness to her vagina after these game was played….<[Y]> has not made any disclosures.” (FACS – S2 – ICL 10, page 4-8). No reference to alleged disclosure made by [Y] in the car.
Undated handwritten notes produced by NSW Police in bundle of documents linked to alleged disclosures – noted “We play that game with Daddy. He grabs me on the boof. [Y] – when we play the game it doesn’t hurt my willy or bum….relationship ended 3 weeks preg with [Y].” It is unclear who the police were speaking to (presumably the mother) but it is noted that the notes do include reference to [Y]’s alleged disclosure, although suggests that [Y] said that playing the game does not hurt his willy as well as his bottom.
The maternal grandmother gave a statement to police on 16 February 2017. The maternal grandmother says that the alleged disclosure occurred at about 4:30pm on Friday, 10 February 2017. The maternal grandmother says that she heard the maternal uncle say “Don’t do that darling, it’s rude.” [X] said “I do that to my daddy and we laugh.” The mother said “What do you do with daddy?” [X] said “We play a game and laugh.” The mother said “What does daddy do?” [X] said “He grabs my boof and I laugh” and [X] pointed to her vagina. It is noted that this account differs from the mother’s account in that the mother questioned the child and the child did not refer to her ‘boof’ sometimes hurting. The mother and child walked into the playroom and a short time later the mother and children left. The maternal grandmother said that she went to the mother’s home on Saturday, 11 February 2017 and the mother told her that she had spoken to the father about what happened. (NSW Police – S6 – ICL 6). The father says that he could hear the maternal grandmother’s voice in the background when the mother contacted him by telephone about the alleged disclosures (F affidavit 05.04.2018 paragraph 16).
It is noted that no affidavit material has been filed by the maternal grandmother, the maternal uncle or the maternal uncle’s fiancé who were present when the alleged disclosures were made.
Who has made the allegations?
The mother and maternal grandmother say that [X] made an allegation.
The mother says that [Y] also made an allegation.

To whom have the allegations been made?
The mother and maternal grandmother say that [X] made the allegation to the mother in the presence of the maternal grandmother, the maternal uncle and his fiancé (it is not clear but presumably [Y] was also present).
The mother says that [Y] made the allegation to her in the car (it is not clear but presumably [X] was also present).

What level of detail do they involve?
As above.

Over what period of time have the allegations been made?
The allegations were made on the same day.

Over what period of time are the events alleged to have occurred?
This is unclear.

What are the effects exhibited by the child?
It appears from the mother’s evidence that [X] grabbing the maternal uncle’s penis through his pants was the first overt effect exhibited by the child. After the alleged disclosure and after the mother’s discussions with Dr C from Medical Clinic on 13 and 14 February 2017, the mother appears to have attributed [X]’s previous medical issues to the alleged sexual abuse - the medical history set out in more detail below.
The mother also appears to have attributed what she describes as the children’s behavioural issues to the alleged sexual abuse – set out in more detail below.
There is also one reference to the children allegedly “showing each other their privates” in the notes produced by Dr K for the session on 4 April 2017 (Dr K – S11 – ICL 57, page 5).

What is the basis of the allegations? Are the allegations reasonably based?
The basis of the allegation is what [X] is alleged to have done (grabbed the maternal uncle’s penis through his pants) and what [X] is alleged to have said (as set out above).
The basis of the allegation is what [Y] is alleged to have said (as set out above).

There appears to be some consistency, although with some clear differences, in the alleged disclosure made by the child [X] (as alleged by the mother and the maternal grandmother).

There is inconsistency in relation to the alleged disclosure made by [Y] (as alleged by the mother), in particular in that there is inconsistent reporting of this alleged disclosure by the mother to the doctor, police, FACS and counsellor (as set out above).

Are the allegations genuinely believed by the person making them?
The mother appears to genuinely believe that the child [X] did and said what is alleged to have been done and said at the time of the alleged disclosure. The mother’s actions – reporting the alleged disclosures and ceasing contact between the children and their father – supports the notion that the mother genuinely believed the alleged disclosure made by [X]. It is less clear in relation to the alleged disclosure made by [Y].
The mother appears to have relied on what she says Dr C said to her on 13 and 14 February 2017 in strengthening her view that something occurred between the father and the children. The mother also appears to link the medical issues [X] had experienced (headaches, constipation and UTIs) with the alleged disclosure.

The mother met with staff from [Y]’s daycare centre on 14 February 2017 – notes indicate that the mother told the staff that “The doctor has confirmed that there has been a form of tampering with the children, which has been verbally expressed by [X] however [Y] is expressing withdrawn behaviour. The doctor has explained that [X]’s frequent headaches that appeared from late-December up to late January may be from these incidents and she will be undergoing an MRI to confirm. [Y] has been displaying aggression, lack of desire to eat and withdrawal from social interactions, which the doctor also explained could be from the incident. From the preschool point of view it has not been witnessed that [Y] is aggressive however has been reluctant to eat.” (Kinder Garden – S10 – ICL 53). There is no reference in these notes to the alleged disclosure made by [Y].

What expert evidence has been provided?
No expert evidence has been prepared in the family law proceedings to date. The Independent Children’s Lawyer is the of the view that a Single Expert should be appointed to prepare a Report and suggests that the Expert be a clinical / forensic psychologist with experience in risk assessment, sex offender assessment and treatment and violent offender assessment and treatment.

The following is a summary of the material produced on subpoena as it relates to decisions made / opinions offered by police and caseworkers with experience in matters involving child sexual abuse.

[X] met with Detectives on 15 February 2017 and police observed her “to be extremely upset suffering some trauma” (NSW Police – S6 – ICL 2, page 2).

On 15 February 2017 Police applied for Provisional ADVO against the father to protect the child [X] only (mother and [Y] covered by being in domestic relationship with [X] only) -  Orders 1 (standard Orders), 2 (no contact except through lawyer), 3 (not to approach school / child care, and 10 (not possess firearm) (NSW Police – S6 – ICL 7, page 1-2).

JIRT Caseworker and Officer In Charge attempted to interview [X] at Town D JIRT on 15 February 2017 but [X] became distressed and the interview was terminated (FACS – S2 – ICL 10, page 19-20).
On 22 March 2017 FACS closed their file relating to [Y] and there was no mention in the file of the alleged disclosure made by [Y] (FACS – S2 – ICL 11, page 28).
[X] was interviewed by Detective Ms L for 1 hour at Town C Community Services Centre on 30 March 2017 – did not disclose and “did not appear to be blocking.” She was led through the initial report and denied saying certain things, saying “Mummy is fibbing” – no further police investigation required (NSW Police – S6 – ICL 2, page 1).
PCSC Mr M speaks to mother by phone on 3 April 2017 – mother says that GP had told her [X] is being sexually assaulted and showing signs of it as she has UTIs and migraines. Police contacted Dr C and asked doctor about such conversations and Dr C advised “that the family has it wrong and have obviously misunderstood him when he has advised them of the health issues the victim is suffering” (NSW Police – S6 – ICL 2 – page 1).
FACS Assessment and Secondary Assessment on 7 April 2017 – “allegation of sexual abuse is not substantiated, level of risk is low.” Noted 1 hour interview with [X] on 30 March 2017 – child “was very comfortable, she did not cry. At one point during the interview when questioned about the allegation she responded “Mums fibbing”. No disclosure of sexual or physical harm.” FACS further note “[X]’s parents separated some time ago and it is unclear if there is secondary motivation to the report as [X] has indicated no harm has been caused to her, however, her mother continues to claim otherwise...a hypothesis is that the motive behind the report may be related to the Family Law Court proceedings” (FACS – S2 – ICL 10, page 36-37 and 29-31). It is noted that there were no family law proceedings on foot at that time.
ADVO withdrawn by police and Provisional Orders revoked by the Town B Local Court on 19 April 2017 (Town B Local Court – S14 – ICL 59).
It is noted that the mother says that when [X] met with Detective Mr M in Town D (mother says on about 16 February 2017), [X] was very scared and was reluctant to speak to the Detective. The mother says that both children have been very scared of the police after they’d said to her “Daddy said if I’m naughty the police will come and take me away.” (M affidavit 15.01.2018 paragraph 14). The mother also says that she believes [X] thought she was in trouble or she thought the father was in trouble after what she’d said (M affidavit 17.05.2018 paragraph 26).
It is noted that the mother says that after the disclosures were made, she took the children to see Dr K who told her that she was involved in the police investigation, it would not be appropriate for her to see [X] but that she saw [Y] once (M affidavit 15.01.2018 paragraph 41). Only [Y] was referred by Dr C at Medical Clinic to Dr K (Medical Clinic – S3 – ICL 30) and there were 2, possibly 3 sessions (Dr K – S11) .
It is noted that the mother says that after the disclosures were made, she took [X] to see Ms A, that Ms A spoke to [X] about safe touching and that [X] seemed distressed afterwards so the mother decided not to return. [X] was referred to Ms A before the alleged disclosures (on 22 September 2016) (Medical Clinic – S3 – ICL 21). It is unclear when [X] saw Ms A as her files were destroyed (Ms A – S5 – ICL 41).

Are there satisfactory explanations of the allegations apart from sexual abuse?
The key concern for the Independent Children’s Lawyer in this matter is not what the child [X] is alleged to have done (grabbing the maternal uncle’s penis through his pants), but what the child is alleged to have said. It is noted, however, the difference versions offered by the mother (“I touch Daddy’s private parts, he touches my boff and sometimes it hurts and sometimes it tickles”) and the maternal grandmother (“We play a game and laugh….He grabs my boof and I laugh”). It is further noted that the mother’s reporting of the child [Y]’s alleged disclosure was inconsistent at the time of the alleged disclosures.

What are the likely future effects on the child(ren)?
The mother says that since the children stopped spending time and communicating with the father in February 2017, their behavioural and medical issues have improved (M affidavit 15.01.2018 paragraphs 43-45).
The mother reported to Dr K on 24 April 2017 that the children were talking about their father and missing him (Dr K – S11 – ICL 57 page 6-7).

Other matters relevant to determination of unacceptable risk - Medical issues – [X]
The mother claims that Dr C from Medical Clinic told her on 13 February 2017 that “with [X]’s medical records, in my opinion something could definitely have happened.” The mother says that the doctor was referring to [X] having had constipation and UTIs over the previous 4 years plus severe anxiety / stress levels leading to stress migraines. The mother says that she had taken [X] to see numerous pediatricians and specialists and that they found no physical cause for chronic constipation and that she was advised that it was likely to be psychological (M affidavit 15.01.2018 paragraph 10-11).

21.03.2016	S3	M sees Dr C – feeling stress, depression, all started after the death of the grandfather and the grandmom, <her maternal grandmother> died few days ago, also had issues with the brother, had issues with the partner 4 years ago, had issues when she got pregnant with the second child, partner…wants to get back together – tried last year – didn’t work….no suicidal ideas, had sexually assaulted by the boss – had suicidal ideas – having issues with family, plan for counselling, referral to Wellbeing Clinic	Medical Clinic ICL 12 page 40
24.03.2016	S3 S3	M sees Dr C – Mental Health Care Plan (MHCP). Family history of headache – day to day activity can <aggravate> the headache Dr C prepares MHCP for M	Medical Clinic ICL 12 page 40-41 Medical Clinic ICL 13
31.03.2016	S3	M sees Dr C – feeling much better, had counselling - happy with that. Doesn’t want family members to know about depression. Counselling done. Patient looks happy	Medical Clinic ICL 12 page 41
22.04.2016	S3	M sees Dr R – has been taking Escitalopram and temazepam for anxiety, needs scripts, anxiety controlled, sleep ok with temaz	Medical Clinic ICL 12 page 41
28.04.2016	S3	M sees Dr C- depression, escitalopram is working but now she thinks that is not enough and also the ex partner wants to settle down with her – which she doesn’t want to. Children also having some issues, contraception – started seeing a new partner, she is happy with that	Medical Clinic ICL 12 page 41-42
02.05.2016	S3	Dr N prepares report to Dr C – accompanied by M, longstanding concerns re. constipation, first caused concern at about 2 weeks of age…at present… one bowel action every 10 to 17 days…experiences discomfort with defecation and has had frequent episodes of rectal bleeding…reasonable diet…treated with variety of laxatives…on one occasion…enema…otherwise been in good health…some history of constipation and diverticulitis on the maternal side…Summary….unlikely that there is a secondary cause…reasonable to treat her with stool softening regime and add, if necessary, a bowel stimulating agent…made arrangements to review progress in 2 weeks	Medical Clinic ICL 26
19.05.2016	S3	M sees Dr C – depression, had some panic attacks over the last weekend, but now it settled, to continue with ecitalopram, temazepam before bed	Medical Clinic ICL 12 page 42
01.06.2016	About June 2016	F says that M told her that she was in relationship with Mr E and asked him to meet Mr E, but F declined	F aff 05.04.18 para 95
02.06.2016	S3	M sees Dr C – worsening depression, having issues with the mother, and previous partner – he is telling that he doesn’t feel good because of her – getting text messages, he drinks a lot and he has depression, every second weekend the children go to see him, having issues with the mother – mother is not happy with her job and scolding all the time that M’s brother is having depression because of her and if he dies it is going to be M’s fault…..Temazepam – cannot sleep without it, tried to cease, but cannot sleep…. having new partner, hasn’t talked about these issues yet…to contact Dr C and re-start counselling, increase ecitaloproam to 30mg a day	Medical Clinic ICL 12 page 42-43
10.08.2016	S3	M sees Dr C – having anxiety attacks, getting only 2 hours sleep, feeling depressed but with counselling improving, getting stressed with big decisions – like sending the child to school, also not getting much work, persistent depression with anxiety, having new partner for about 5 months, not living together, kids get along with him, had issues with previous partner – but now OK, taking ecitalopram 30mg, was taking Ativan on and off…increase 40mg ecitalopram and add endep at night to counteract morning anxiety attacks	Medical Clinic ICL 12 page 45
22.09.2016	S3 S3 S3	[X] sees Dr C, having anger issues, daycare and M has noticed the change, not eating much, sometimes not sleeping well, parents have separated and M is having new partner, F scolds [X] and brother all the time, they see the F every second weekend and now they are refusing to go, F lives with a house mate – it’s his step-M’s house and father’s brother sometimes yells at them – but they play together, parents been married and this agreement made by the parents, now the F doesn’t want to keep them overnight and want(s)…only Sunday, also brother had mentioned – that doesn’t want to go, usually he likes to go to the F, F is taking excessive drinking as well, MHCP, letter to Wellbeing Clinic Dr C prepares MHCP for [X] – bereavement disorders, UTI results for 24.02.2016 noted Dr C prepares referral letter to Wellbeing Clinic for [X] – changes in behaviour, seeing F every other weekend, but seems to be she doesn’t enjoy seeing her F	Medical Clinic ICL 17 page 24-25 Medical Clinic ICL 21 Medical Clinic ICL 22
01.10.2016	Late 2016	F says that MGM collected children after an overnight visit, M was in passenger seat of car, in children’s presence MGM criticised F for not saying hello to her and said “You shouldn’t be allowed to have these children if you can’t be polite enough to say hello to their grandmother, You don’t deserve these children.” F says that MGM verbally abused him for 10 minutes and left when M started crying M agrees that MGM and F argued in presence of the children but does not agree with F’s version of conversation	F aff 05.04.18 para 142-146 M aff 17.05.18 para 20
01.10.2016	Oct 2016	F says that M and children moved into M’s boyfriend’s (Mr E) home, F understood only after short time after M commenced relationship	F aff 17.11.17 para 15
01.10.2016	Oct 2016 to Feb 2017	F says that he raised concerns with M about living arrangements numerous times, F says that [X] complained to him about sleeping with [Y] in mattress on floor, F says he noticed dramatic behavioural changes in children – [X] would tantrum, become extremely clingy towards F, [Y] became noticeably withdrawn / unsocial, children fought with each other more regularly, [X] developed head lice which F says M did not treat, children made it clear to F they were not happy in new home, children began to swear profusely	F aff 17.11.17 para 15
01.10.2016	Oct 2016	M says that her relationship with F became much worse after she told him she was moving in with her partner at the time Mr E – M says that F was extremely jealous especially because of great relationship between Mr E and children – M says that F said “You are not to bring Mr E to my place ever when you drop off the kids. It won’t end very well for Mr E if you try.” M says that she did all changeover at F’s home to minimise conflict and protect Mr E	M aff 15.01.18 para 35-38
28.10.2016	S3	M sees Dr C – feeling dizzy since last Wednesday….trying to get pregnant and weaned the ecitalopram…to continue the ecitalopram regularly for now	Medical Clinic ICL 12 page 48-49
01.11.2016	November 2016	M says that F confronted Mr E in front of children at [X]’s school orientation and yelled “You have no right to be here”, Mr E said “We’re all here for [X]’s sake” and F stormed off M says that F said to Mr E “What the fuck are you doing here? I’m her father I should be here not you” and Mr E said “I’m here for [X]. She asked me to come and here I am mate. I’m here for the kids.”	M aff 15.01.18 para 39 M aff 17.05.18 para 15
01.11.2016	About Nov 2016	F says that M invited him to attend [X]’s school orientation day, F accepted, when he arrived F says that Mr E became agitated and ‘sneered’ at him, F says that this was the first time they had met, F attempted to introduce himself, Mr E “walked up to <F> and began rubbing his chest, shoulders and arms against <F’s> face in a violent manner”, F told Mr E he’d just wanted to introduce himself “but obviously you are here to cause trouble”, Mr E calmed down, F said he went to [X]’s classroom with her and saw M and Mr E having argument outside classroom, F says that after orientation (after he said goodbye to children) Mr E said “I’ll be seeing you later mate” and F left	F aff 05.04.18 para 96-108
03.11.2016	S4	M completes Application to enrol [X] at Town B Public School – intended start date 01.02.2017, Mr E listed as Parent 2, F’s details not recorded, MGM listed as parents/carer not living with this student, MGM listed as other emergency contact	Town B PS ICL 37
17.11.2016	S4	[X] completes Kindergarten screening at Town B Public School – completes worksheet – I like: “drawing my mum”, I am good at: “drawing my dad”	Town B PS ICL 38
01.12.2016	Late 2016 / Jan 2017	F says that after school orientation day, he and M agreed that M would take [X] to school on the morning of her first day of school, and F would collect [X] from school that day and take her to McDonalds to celebrate	F aff 05.04.18 para 149
08.12.2016	S10	M completes enrolment form for daycare – [Y] – Mr E noted as Parent/Guardian Two, No to Court Orders / Parenting Plan , F’s details not included, MGPs listed as other contacts M completes enrolment form for daycare – [X] – as above	Kinder Garden ICL 55 Kinder Garden ICL 56
04.01.2017	S3	Ms A, Registered Psychologist, sends letter to Dr C, M has completed 6 sessions but has requested additional sessions, M “experiences cycles when her life management skills are challenged. Counselling helps her to regain control of her life and re-boot her resilience...would benefit from renewing her Mental Health Care Plan.”	Medical Clinic ICL 15
17.01.2017	S3 S3 S3 S17	[X] sees Dr P – headache several days, fever Sunday night – not since, increased lethargy today, Grandmother has history of bad migraines… Reason for visit: Headache - ?migraine ?more sinister – letter to Dr D Dr C prepares referral letter to Dr D for [X] – bad headache for 2 days <NB ICL’s office advised on 20 March 2018 that neither child attended on Dr D> [X] admitted to Suburb A Hospital – Headache [X] admitted to Suburb A Hospital – M reports that [X] fell backwards off the couch 3 months ago and since then has been having headaches…. frontal… easily relieved with simple analgesia…unwell for last 2 days…fever, headache, abdominal pain…ongoing headaches for 2 days, lethargic…no vomiting, no obvious photophobia or neck stiffness….attempt for MRI brain with sedation… unsuccessful… suspect .. headaches are migraines… arrange for outpatient MRI to rule out other causes	Medical Clinic ICL 17 page 26 Medical Clinic ICL 23 Medical Clinic ICL 27 LHD ICL 51
19.01.2017	S3	[X] discharged by Suburb A Hospital – Headache	Medical Clinic ICL 27
23.01.2017	S3	[X] sees Dr W – headache today…resolved with Nurofen, started at daycare, no vomiting / fever…note headache 6 days ago too. Observed in Hospital from Tues to Thurs and completely resolved. Is awaiting an MRI under anaesthetic	Medical Clinic ICL 17 page 26-27
29.01.2017	F says that M argued with F, in front of MGPs, saying that F should be at school on morning of [X]’s first day, F told her that they’d already agreed and he did not want to fight M denies that she was argumentative and says she only suggested F attend the school on the morning of [X]’s first day	F aff 05.04.18 para 150-151 M aff 17.05.18 para 21
01.02.2017	F says that he went to Town B Primary School to collect [X] at end of first day of school as planned, M collected child at end of visit, without MGM, and F says that conversation with M was pleasant	F aff 05.04.18 para 153
02.02.2017	S3	[X] sees Dr C – was having headaches, suspected meningitis, was in Suburb A Hospital for 3 days – just observed, planned MRI 17 March…since discharge had 7 episodes of headaches	Medical Clinic ICL 17 page 27
05.02.2017	F says that he raised his concerns about the children to the M on the last occasion – this was the last time the F saw the children	F aff 17.11.17 para 16
11.02.2017	On about	M says that she and children were at MGM’s home – MGM (Ms M), maternal uncle (MU - Mr M) and his fiancé (Ms R) were present, [X] was on couch with MU and reached over and grabbed his penis through his pants, MU said “On no [X], we don’t do that. Those are my private parts and you don’t touch other people’s private parts.” [X] said “I touch Daddy’s private parts, he touches my boff and sometimes it hurts and sometimes it tickles.” M says that she was extremely shocked, very upset and she wasn’t sure what to do. On drive home M says [Y] said unprompted “When Daddy and I play that game my bum doesn’t hurt.”	M aff 15.01.18 para 5-9
11.02.2017	Father says 2016 in his affidavit	F says that he was waiting at home for children’s arrival – present at his home were paternal aunt (Ms C), PGM (Ms K) and paternal uncle (Mr B) and ‘the children ‘ (? nieces / nephews) – F says that M contacted him by telephone at 8:50am and that they spoke for nearly 1 hour. F says that M said to him “The children won’t be seeing you any longer because I believe you have inappropriately touched our children.” F says that he was shocked. F says that M’s voice was calm and had slightly sarcastic tone. F says that he could hear MGM talking in background and M would repeat words MGM said. F says that he said “Ms Collinson, how can you say this about me? I didn’t do these things” and “I can’t believe you are doing this. What are you doing? Why are you doing this?” F says that about 1 hour after telephone conversation, he called M and they spoke for about 40 minutes. During conversation M said “[Y] has just said something about his bum.” F says that after this conversation he made a final call to the M which lasted about 5 minutes, during which F said “I am disgusted at these allegations. I have had enough of the drama and the vindictive attitude you display towards me. I feel like I am constantly walking on thin ice when it comes to you and your mother and how you both control my relationship with our children. Look Ms Collinson, I’m going to initiate court proceedings to get parenting orders. I’m sick of the drama and your vindictiveness. I think your allegations of sexual abuse are just another attention-seeking drama instigated by your mother.”	F aff 05.04.18 para 7-19,110
11.02.2017	M says 2016 in her affidavit	M agrees that her tone was calm when she called but denies that it was sarcastic. M says that she said to F “I need to talk to you about something that [X] and [Y] have told me. I don’t know exactly how to say this but [X] did something very inappropriate to my brother and then she said she does that with you and you do it with her. [Y] also told me a couple of hours later that you do things with him as well. I don’t know what to think but I want to take the kids to counselling as this is something serious and I can’t just ignore it.” M says that they talked for a long time during which F said “Could you just put this all to the back of your mind and let the kids come with me for the weekend as I have something planned with my family.”	M aff 17.05.18 para 3
11.02.2017	After disclosure on 11.02.2017	M says that she telephoned the F to see if there was an innocent explanation to disclosures made – M says that F dismissed her concerns and said “Look, just put it to the back of your mind and send the kids over to me anyway”, M says that she said “No” and M says that she has not facilitated any time between children and F since then, M says that she told the F she wanted to arrange for the children to see a counsellor M says that she took the children to see Dr K at Town A, M says that Dr K told her that as she was involved with the police investigation it would not be appropriate for her to see [X], however she did have a session with [Y] M says that she then took [X] to see M’s counsellor, Ms A at Town I, Ms A spoke to [X] about safe touching, [X] seemed distressed afterwards so M decided not to return M says that since she ceased contact between children and F, she has noticed significant change in both children – [X]’s anxiety and stress levels have dramatically improved, stress migraines (which used to occur at least every fortnight and had been so bad [X] was hospitalised at Suburb A Hospital for a week in late 2016) have significantly reduced – only one in 11 months after contact ceased and was easily treated with Panadol – M says [X] no longer suffers from chronic constipation and has not had a single UTI). M says that [Y] is more confident and outgoing – his daycare teachers have told her he is much more social at daycare	M aff 15.01.18 para 40-41 M aff 15.01.18 para 41 M aff 15.01.18 para 42 M aff 15.01.18 para 43-45
12.02.2017	F says that he sent text message to M asking her to collect [X]’s birthday present – he left them on his front porch and M collected them the next day	F aff 05.04.18 para 111
13.02.2017	M says that she took children to appointment with GP Dr C. M says that Dr said to her “With [X]’s medical records, in my opinion something could definitely have happened. I am going to send you to the hospital so they can do some tests.” (M says that Dr was referring to [X] having constipation and UTIs over 4 year prior plus severe anxiety / stress levels leading to stress migraines – M says that she had taken [X] to see numerous paediatricians and specialists. M says that specialists found no physical cause for chronic constipation, M says she was advised it was likely to be psychological). M says that she and [X] attended Town C Hospital and spent hours there but M says she was advised that they could not do proper check as it had been 10 days since [X]’s last contact with F	M aff 15.01.18 para 10-11) M aff 15.01.18 para 12
13.02.2017	S2 S2	FACS Initial Referral – Helpline – 6:11pm FACS Contact Record – Helpline – Contact Priority High – Primary Reported Issue – Sexual: Indecent acts / moles – “Report screens in for [X] (5) under sexual abuse. [X] was touching her uncle’s penis and the mother asked [X] why she was doing this and [X] replied that this is the game she plays with her father. [X] also allegedly complained of soreness to her vagina after these game was played. Mother took [X] to the emergency dept and was found to have a UTI however it is unknown if this is directly linked to the alleged sexual assault as [X] last had contact with her father on 5/2/17…..<over to p5 - reporter said> [X] had been complaining of pain on defection and constant headaches….<[Y]> has not made any disclosures, however the XXXX that he presents as an angry child with some depressive symptoms….M also reported that [X] has been suffering from constant headaches. She presented to Suburb A hospital recently for constant headaches and an MRI was considered….also advised that [X]’s urine samples indicated abnormal results (NFI). The reporter has consulted with SA DR XXXX who recommended that the Dr at the ED see [X] and being treatment for UTI.”	FACS ICL 10 page 16 FACS ICL 10 page 4-8
13.02.2017	S3 S3 S3 S3	[X] sees Dr C: “[X] has been complaining conscriptions (pain full deifications) and constant headaches (was admitted to hospital once and planned for MRI), Today mother noticed that she was trying to touch her uncles (mothers brothers) genitalia, and when [X]’s mother and uncle questions about that behaviour and she explained that, they use to play this “game” with her father (parents separated) and also she has explained that some times her genitalia is sore after these events. Mother is worried and stopped sending them to her father for the last couple of weeks (last been with their father was 5th of February). Talked in leangth with the mother and sent to the ED/Town C. Actions: Letter to Town C Hospital printed” Dr C prepares referral letter to Town C Hospital for [X] [Y] sees Dr C – identical entry to above but additional line added: “[Y]’s behaviour has changed recently and mother suspect that he also involved above situation” Dr C prepares referral letter to Town C Hospital for [Y] – “[Y]’s sister has given history of sexually abuse by her father and [Y] has also given some symptoms of depression. And mother is worried that [Y] also involved in the situation.”	Medical Clinic ICL 17 page 27-28 Medical Clinic ICL 24 Medical Clinic ICL 28 page 25 Medical Clinic ICL 29
13.02.2017	S15 S15	[Y] taken to Town C Hospital ED at 3:49pm, referred by GP, ?SA by F, last contact with F 5/2/17; 5:40pm staff contacted Town D SA Intake – Ms H spoke with GP, will make appropriate notifications to FACS and JIRT; 6:10pm – staff contacted by Dr. T from Town D SA - child to be discharged and they will call M to arrange apt for tomorrow – Discharge Referral – Summary of Progress: “BIB the mother with a history of sexual assault by the father similar history of his elder sister…not in distressed. Discharge with the plan…mother is happy with the plan.” [X] taken to Town C Hospital ED at 3:47pm, same triage comments (plus reference to history UTIs), same handwritten notes as [Y]’s, additional notes in ED Discharge Referral “I haven’t discussed any issues related to the SA….I thought that it will be distressing to the mother as she has to repeat the history again…[X]… not complaining any pain in the abdomen or dysuria… urine send for culture.” <NB. No pathology records of urine test in documents produced – unclear if UTI diagnosed>	LHD ICL 45 LHD ICL 47
14.02.2017	F says allegation that he indecently assaulted [X] was made to police – F denies assaulting [X] sexually or otherwise	F aff 17.11.17 para 17
14.02.2017	M says that she was contacted by Detective Mr M of the Child Abuse Squad at Town D	M aff 15.01.18 para 13
14.02.2017	S6	Town D Child Abuse Squad receive report of indecent assault concerning F and [X]	NSW Police ICL 2 page 2
14.02.2017	S2 S2	FACS File Note – teleconference with M, PCSC Mr M – “mother advised that she has been to the GP and the GP is concerned that something has happened to the children.” M said that she was in car with the children and could not speak in front of them, they to text details so she could call them back FACS File Note – about 45 minutes later M had not called back and they could not contact her on phone – police were to attend M’s home to arrange interview time	FACS ICL 10 page 16 FACS ICL 10 page 14
14.02.2017	S3	[X] sees Dr C: “been to the ED and reffered to the community health, wanted to know about the process from now on, adviced the incident had happened while ago it may be defficult to prove but the community health will take the necessary action, will review regullary, since the children are having some behaviour changers – complaining freequant headaches, constipation (fear of going to the toilet) – need to refer to the local paediatrician and psychologist, will review with the progress” [Y] sees Dr C: “mother wants to know about the process, since there is a possibility of sexually abuse, [Y] is having some behaviour changers lately, child is more isolated in the day care, getting angry easily, will contact the community health and find out more about the process, also adviced – may have to refer to the local paediatrician and psychologist for further assessment and treatment.”	Medical Clinic ICL 17 page 28 Medical Clinic ICL 28 page 25
14.02.2017	S10	M meets with Ms I and Ms E at daycare centre – M made staff aware of allegations of incidents between children and F. “The doctor has confirmed that there has been a form of tampering with the children, which has been verbally expressed by [X] however [Y] is expressing withdrawn behaviour. The doctor has explained that [X]’s frequent headaches that appeared from late-December up to late January may be from these incidents and she will be undergoing an MRI to confirm. [Y] has been displaying aggression, lack of desire to eat and withdrawal from social interactions, which the doctor also explained could be from the incident. From the preschool point of view it has not been witnessed that [Y] is aggressive however has been reluctant to eat.” There should be investigation…M of the impression that this will depend on CSA squad…if they have enough evidence…M “has said that [X] has realised that what she has said has happened has led to consequences of not being able to see dad anymore and is now putting up a defence wall with talking about it and saying “I was only joking”.”	Kinder Garden ICL 53
15.02.2017	15.02.2017 and onwards	F says that he was issued with Provisional ADVO – F says that he was never asked by investigating police to make statement and that no charges were laid F says that he was served with Provisional ADVO at about 7pm by two police officers, the police officers asked to follow F to his workplace to seize his firearm, F was not comfortable driving as he had consumed some beer that afternoon with dinner, police offered to drive him, when they arrived F unlocked safe and handed firearm to police (F says that he uses firearm only for protection of livestock at work from pests / predators) F says that during the investigation he was not contacted by police, JIRT or FACS	F aff 17.11.17 para 17 F aff 05.04.18 para 20-25 F aff 05.04.18 para 29
15.02.2017	S1 S6 S6 S6	Police serve ADVO on F and seize firearm Detectives met with [X] and observed her “to be extremely upset suffering some trauma” – police sought urgent ADVO, concerned that F was aware of allegations and had access to firearms (Undated handwritten notes) – we play that game with Daddy. He grabs me on the boof. [Y] – When we play the game it doesn’t hurt my willy or bum……relationship ended 3 weeks preg with [Y] Police apply for Provisional ADVO and seek Order for 2 years – Orders 1, 2, 3, 10 – listed for 22 February 2017 at Town B Local Court	NSW Police ICL 1 page 1 NSW Police ICL 2 page 2 NSW Police ICL 3 NSW Police ICL 7 – 1-2,5
16.02.2017	(about)	M says that she and [X] met with Detective Mr M in Town D. M says that [X] was very scared and was reluctant to speak to the Detective. (M says that both children have been very scared of the police after they had said to her “Daddy said if I’m naughty the police will come and take me away”) M says that when [X] first presented for an interview with JIRT officers she was extremely distressed. M says that she believes [X] thought she was in trouble or F was in trouble after what she said	M aff 15.01.18 para 14 M aff 17.05.18 para 26
16.02.2017	S6	Ms M gives statement to police – says that disclosure occurred at about 4:30pm on Friday, 10 February 2017 – MGM heard paternal uncle Mr M say “Don’t do that darling, its rude”, [X] said “I do that to daddy and we laugh”. M said “What do you do with daddy?” [X] said “We play a game and laugh.” M said “What does daddy do?” [X] said “He grabs my boof and I laugh” and she pointed towards her vagina. M and [X] walked into playroom. A short time later M and children left MGM’s home. MGM went to M’s home on Saturday, 11 February 2017 – M told MGM she had spoken to F about what happened. On Wednesday, 15 February 2017 MGM went with M and [X] to Child Abuse Squad in Town D – “whilst there [X] became extremely upset and clung onto” M. After giving statement to police, SC MR M explained ADVO to MGM and provided her with copies of it	NSW Police ICL 6
17.02.2017	(about)	M says that [X] was interviewed by herself at Town C Police Station. M says that she has not questioned [X] about what occurred during interview. M says that police told her after interview that they couldn’t get [X] to volunteer much information. (M says that she understands the investigation was subsequently dropped due to lack of evidence)	M aff 15.01.18 para 15-16
17.02.2017	S3	[Y] sees Dr C – 4 year check, having involved with ? sexual abuse…having some social issues, as per the M not connecting with other children much, having some anger issues	Medical Clinic ICL 28 page 25
22.02.2017	S14	ADVO Application listed before Town B Local Court – adjourned to 22.03.2017, Investigation on foot, Interim Order per Provisional Order w/o admissions	Town B Local Court ICL 59
24.02.2017	S3 S3	[Y] sees Dr C – having behaviour changes, M is worried, was toilet trained and now he doesn’t want to go to the toilet – letter to Dr K Dr C prepares referral letter for [Y] to Dr K – “behaviour changes, anger issues, he was well toilet trained and now he doesn’t want to go to the toilet. Had some social issues with the father (separated) and possibly had some sexual abuse from the father, which is being investigated.”	Medical Clinic ICL 28 page 26 Medical Clinic ICL 30
27.02.2017	S10	M sends email to daycare giving 4 weeks’ notice – [Y] not liking daycare at the moment, wanting more time home, “I think this will help him process everything going on and will help with his counselling.”	Kinder Garden ICL 54
09.03.2017	S3	M sees Dr C – contraception advice…depression worsen due to issues with the ex partner and the children	Medical Clinic ICL 12 page 49-50
17.03.2017	S4	Absent note completed for [X] at Town B Public School – going for an MRI Scan	Town B PS ICL 39
17.03.2017	S17	[X] attends Suburb A Hospital – MRI – results reviewed by paed, happy for discharge MRI Report – normal – unremarkable scan of the brain	LHD ICL 50 LHD ICL 52
22.03.2017	S2	FACS file – email re. [X] – Triage closing the plan for [Y] <NB. No mention in [Y]'s FACS file of alleged disclosure made by [Y] of also playing game with F>	FACS ICL 11 page 28
22.03.2017	S3	[Y] sees Dr C – having anger issues, day care is not happy to keep him, going through the child abuse case - ? mentally effecting him, ?ODD, for psychological assessment – M has tried several times to get apt – will fax the letter	Medical Clinic ICL 28 page 26
22.03.2017	S14	ADVO Application listed before Town B Local Court – adjourned to 19.04.2017, Investigation proceeding	Town B Local Court ICL 59
24.03.2017	S3 S3	[Y] sees Dr C – for MHCP – having first apt with counsellor on Monday Dr C prepares Mental Health Treatment Plan for [Y] – Current diagnoses – ADD/ADHD, Adjustment disorder, Anxiety - Additional child MH diagnoses – Oppositional defiance disorders	Medical Clinic ICL 28 page 26-27 Medical Clinic ICL 31
24.03.2017	S4	School file - handwritten note attached to copy of Provisional ADVO – “Can you please ring mum of [X]…for a photo of Mr Donnelly so we can be more aware”….”Mum will look for a photo at weekend”	Town B PS ICL 40
27.03.2017	S11	?[Y] and M attend apt with Dr K <NB. notes very difficult to read> - Dr pretty sure something has happened to both children, [X] history of health issues – stress headaches – migraines, constipated, AVO in place…partner met 5 months ago – Mr E – living in Town B, [X] afraid of [Y] – hits a lot…only aggressive when Mr E not around…sleep – usually pretty good…[X] tested for STDs…FACS contacted Dr C to ensure protected from harm. Tried to get back together 2 years ago for 4 months, but realised why she left….<F> mentally abusive towards <M>…gambles… used drugs and alcohol… raped her – [Y] result… <F’s> mother a piece of work – abusive… <M> anxious…[Y] hurt another child yesterday – aggression towards [X] and others	Dr K ICL 57 page 1-4
29.03.2017	S2	FACS Meeting record – JIRT CW and OIC attempted to interview [X] at Town D JIRT but she became distressed and the interview was terminated, police to conduct home visit to interview [X] at home, FACS to conduct follow-up home visit	FACS ICL 10 page 19-20
30.03.2017	S6 S6 S6	Detectives meet with [X] at Town C Community Services Centre – [X] met alone with Detective Ms L for 1 hour – child did not disclose and did not appear to be blocking – child led through aspects of initial report and denied saying certain things saying “Mummy is fibbing” – no further police investigation required Detective Ms L completed Body Chart drawing with [X] – genital area – “Parts don’t want to say. No. No-one” “Bottom to poo out of. No-one.” Detective Ms L’s handwritten notes of interview – Mr E: “Mr D…do like him, like all of him” Mother: Dislikes – “No. I like her” [Y]: Dislikes – “Be’s naughty and kicks in the face” [A]: “Nanny’s kid….Likes – Favourite boy in the whole wide world – tickles me” Dad: “Mr Donnelly – holidays – visit and sleepover…Likes – to take me to the swimming pool…be happy at me. Dislikes – I don’t like him to yell at me. That’s all. Long time – after birthday in. Sleep in bed. Brother does – very happy at Daddy’s. Like’s him” Mr M: “Daddy’s friend. Likes – he’s happy. I get cranky when <ends there> Dislikes – I like him” “Nanny’s house at caravan park” <NB. No note on this document re. M ‘fibbing’>	NSW Police ICL 2 page 1 NSW Police ICL 4 page 1-2 NSW Police ICL 5 page 1-2
31.03.2017	S3	M sees Dr C – depression and anxiety, she is on endep and thinks it is working better…script… advice to continue ecitalopram	Medical Clinic ICL 12 page 50
01.04.2017	About 2 months after contact ceased	M says that [X] was interviewed again by caseworkers in a more comfortable environment. M believes [X] may have remained concerned that her F would be in trouble or she did not wish to repeat disclosures that had caused upsetting experience for her	M aff 17.05.18 para 27
03.04.2017	S6	PCSC Mr M returned call to M, M said that GP had told her that [X] is being sexually assault and showing signs of it as she has UTI’s and migraines and that Dr is concerned abuse will continue; police contacted Dr C and asked Dr about such conversations with the family “where he advised PCSC that the family has it wrong and have obviously misunderstood him when he has advised them of the health issues the victim is suffering”.	NSW Police ICL 2 page 1
04.04.2017	S11	[Y] attends apt with Dr K – M and Mr E present – playing with cars – XXX them up and organises – rarely plays – does at home. Blanket has to be folded the right way….family situation and preschool – lots of changes, sibling conflict – worse 6-8 weeks, gone back to pooping in nappy, [X] frightened of [Y], apt with Legal Aid Monday, showing each other their privates, [X] interviewed last Thursday	Dr K ICL 57 page 5
07.04.2017	S2 S2	FACS Assessment Record – allegation of sexual abuse is not substantiated, level of risk is low FACS Secondary Assessment – noted that one hour interview with [X] held on 30.03.2017, [X] “was very comfortable, she did not cry. At one point during the interview when questioned about the allegation she responded “Mums fibbing”. No disclosure of sexual or physical harm. On 03.04.2017 M told PCSC Mr M that her GP had told her that [X] had been sexually abuse. PCSC Mr M spoke with this Doctor who had no knowledge of such conversation (on page 29 it states “the doctor has denied ever stating this information to the mother”). “[X]’s parent separated some time ago and it is unclear if there is a secondary motivation to the report as [X] has indicated no harm has been caused to her, however, her mother continues to claim otherwise….a hypothesis is that the motive behind the report may be related to the Family Law Court proceedings.” Noted that [X] rarely sees her father as he is working.	FACS ICL 10 page 36-37 FACS ICL 10 page 29-31
19.04.2017	F says that ADVO Application was withdrawn by police and Provisional Order was revoked	F aff 17.11.17 para 17 and Annex E
19.04.2017	S7 S2 S2	COPS Enquire Case Summary notes case title – “LP17/044 – [X] – Agg Sex Asslt 14/2”, case start date of 14.02.2017, case end date of 19.04.2017, case closed, “Risk Assessment: Extreme” FACS File Note – OIC Mr M advised that [X] had been interviewed and had said “Mum is fibbing. Mum is making it up” and that child did not make any disclosure of abuse – AVO withdrawn at Court today and police have closed the matter JIRT Debriefing – OIC Mr M attended [X]’s home and interviewed her about current allegations – as above – FACS will conduct home visit	NSW Police ICL 8 FACS ICL 10 page 38 FACS ICL 10 page 22
19.04.2017	S14	ADVO Application listed before Town B Local Court – Matter Withdrawn, Provisional Order revoked	Town B Local Court ICL 59
21.04.2017	S3	M sees Dr C - panic attack, also having chest pain and radiating to the right arm…mood swings…most likely due to the depo injection, she hasn’t tolerated the rod, pill as well…increase the endep to 2 tablets at night for the time being	Medical Clinic ICL 12 page 50-51
24.04.2017	S11	[Y] attends apt with Dr K – M present - step-M and dad, biological F’s parents, wanted to see the kids from 3-5pm on Sunday – pick up and drop off, M feels uneasy….kids talking about F, missing him….3.5 week pregnant when left – conceived via rape… emotionally abusive and intimidating….kids have settled under Mr E’s influence…last Thursday message from in-laws, panic attacks started…preschool would have him back, is just financially can’t afford, doesn’t want to go to preschool most days	Dr K ICL 57 page 6-7
24.04.2017	S3	Dr K writes report to Dr C – “seen [Y] for 3 sessions… see no need for further sessions…in a one on one setting presents as delightful young boy, with no signs of the behaviour problems his mother…reports seeing at home…..<M> presents as quite anxious and I suspect the children pick up on her anxiety. She reported previously seeing a psychologist in relation to her anxiety and I discussed with her today obtaining a referral from you to return to the psychologist for further treatment.”	Medical Clinic ICL 34
28.04.2017	S3	M sees Dr C, happy with endep 2 at night… depression discussed and will review	Medical Clinic ICL 12 page 51
01.05.2017	S2 S2	FACS File Note – no referral required as there is no substantiate harm or identified risk of harm FACS Additional Information form – no previous history for [X] on KIDS. No history located for M – only known on KIDS as parent of [X]	FACS ICL 10 page 39 FACS ICL 10 page 26-27
05.05.2017	S3	M sees Dr C – separated from the partner, she is depressed, and the ex partner was not tolerating kid, she started crying, discussed at length, counselling done, letter to Wellbeing Clinic	Medical Clinic ICL 12 page 51-52
09.05.2017	F says that he attempted further FDR but was issued with s60I Certificate deeming FDR unsuitable	F aff 17.11.17 para 18 and Annex F
10.05.2017	May to Nov 2017	F says that he sent weekly text messages to M asking to STW children and made numerous phone calls to M – all unanswered / not responded to F says that PGF and his step-mother (Ms B) also tried to contact M to ask about the children but M did not answer / reply to messages	F aff 17.11.17 para 18 F aff 05.04.18 para 30
15.05.2017	S3	M sees Dr C – depression is better but there was a relapse as the ex partner is requesting to see the children and she is not sure what to do	Medical Clinic ICL 12 page 52
29.06.2017	S3	Certificate issued to M by Town E Local Aboriginal Land Council confirming that sufficient evidence has been provided to establish that M is of Aboriginal descent, identifies as an Aboriginal, is accepted as such by the community in which she lives or has lived, is a child / relative of an aboriginal member of Land Council

08.07.2017	S15	[X] taken to Town C Hospital ED – background of seasonal asthma and UTIs in past…complained of lower back pain yesterday and also complained of burning urine a few days earlier…likely viral illness – Follow up Details – chase urine culture <NB. No pathology records of urine test in documents produced – unclear if UTI diagnosed>	LHD ICL 46
27.07.2017	S3	[Y] sees Dr C – ATSI – notes as per form	Medical Clinic ICL 28 page 28
04.08.2017	S4	School file - handwritten note attached to copy of Provisional ADVO – “Spoke with mum…no orders in place any longer.”	Town B PS ICL 40
18.08.2017	S3	[X] sees Dr C – ATSI Health Check	Medical Clinic ICL 17 page 29
31.08.2017	S3 S3	[Y] sees Dr C – night enuresis (involuntary urination) - day time dryness achieved Dr C prepares referral letter for [Y] to Eneuresis Clinic at Hospital – “[Y] hasn’t achieved night time dryness.”	Medical Clinic ICL 28 page 30 Medical Clinic ICL 32
27.09.2017	S3	[X] sees Dr R – has asthma, coughing and headache	Medical Clinic ICL 17 page 30
31.10.2017	S4	M completes Application to enrol [Y] at Town B Public School – intended start date 01.02.2018, Mr E listed as Parent 2, F’s details not recorded, MGM listed as other emergency contact	Town B PS ICL 35
03.11.2017	S3 S3 S3 S3	[X] sees Dr C – headache and dizzy…behavioural changes, was complaining of headache and dizziness, previously had similar complaints and investigated in Suburb A Hospital, all normal, referral to Dr B Dr C prepares referral letter to Dr B – issues with behaviour, “also in the past has been investigated for possible abuse by the father. Lately…complaining of headache and dizziness, once she was in Suburb A hospital and had a LP, brain scan (all normal) [Y] sees Dr C – behaviour issues discussed at length – he is hyperactive, inattention and irritable, getting worse, ?ADHD ?ODD, advised re family strategies, appraisal of good behaviour, counselling, family group, referred to psychiatrist – letter to Dr B Dr C prepares referral letter to Dr B – “[Y] is having issues with his behaviour, he is hyperactive, inattention and irritable.” <NB. ICL advised on 5 April 2018 that neither child attended on Dr B>	Medical Clinic ICL 17 page 30 Medical Clinic ICL 25 Medical Clinic ICL 28 page 32 Medical Clinic ICL 33
17.11.2017	F files Initiating Application, Notice of Risk and Affidavit – F seeks unsupervised time with children
30.11.2017	S3 S3	M sees Dr C – worsening anxiety, she got court papers from the previous partner – to get more time with the kids, she is stressed…financially having issues, left the job and now working with the mother and she is happy, currently on endep and esitalopram…letter to Wellbeing Clinic Dr C prepares MHCP for M	Medical Clinic ICL 12 page 59 Medical Clinic ICL 14
06.12.2017	NOAFS filed on behalf of M – Town C Legal
15.12.2017	S4	Student Record – [X] – Kindergarten – Days absent: Term 1 (6) Term 2 (1) Term 3 (3)	Town B PS ICL 36
15.01.2018	M files Response, Notice of Risk and Affidavit – M seeks sole PR, LW M, Orders for communication only between F and children, s68B restraints – F not to approach / contact M or children
19.01.2018	NOAFS filed on behalf of F – Haille Paine
29.01.2018	Proceedings listed before WFCC – Interim Orders – ICL appointed, matter adjourned to 16.03.2018
12.02.2018	NOAFS filed by ICL – C.O’Donnell
16.03.2018	Proceedings listed before WFCC – Interim Orders – urinaylsis testing (UT) for F, CatholicCare intake, matter listed for Interim Hearing 31.05.2018
28.03.2018	ICL makes request for F to undertake UT (F complies on 29.03.2018 – negative)
05.04.2018	F files further affidavit
16.04.2018	ICL makes request for F to undertake UT (F complies on 17.04.2018 – negative)
09.05.2018	ICL makes request for F to undertake UT (F complies on 10.05.2018 – negative but lower creatinine level noted)
10.05.2018	S5	Letter from Ms A to – M’s file “was destroyed in a flood that occurred in my old premises….<M> saw me regarding suffering reactive depression and a work place situation. A mention had been made regarding her children’s contact visits with their father. This was referred to FACS.”	Ms A ICL 41
17.05.2018	M files further affidavit