Dupleix and Duroc

FAMILY COURT OF AUSTRALIA

DUPLEIX & DUROC

[2008] FamCA 626

FAMILY LAW - CHILDREN - Magellan - allegations of sexual abuse by father - allegations withdrawn in closing address - relevance to parental capacity - primary attachment of young child - effect of change in residence

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(1),(3),4),(4A),.61DA, 61DAA(1),(2), 65DA(3)

McCoy & Wessex [2007] FamCA 489

FATHER:

Mr Dupleix

MOTHER:

Ms Duroc

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

204

2007

DATE DELIVERED:

8 August, 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J.

HEARING DATE:

14, 15 and 16 May, 2008 and 20, 23, and 24 June, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr. Mawson S.C.

SOLICITOR FOR THE HUSBAND:

Ryan Carlisle Thomas, DX 17515, Dandenong

COUNSEL FOR THE WIFE:

Ms. Dellidis

SOLICITOR FOR THE WIFE:

McBain Lawyers, DX 654, Melbourne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms. Bender

INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid, DX

210646, Melbourne

Orders

That all previous parenting orders and injunctions in respect of the child … born … November, 2005 be discharged.
That the mother and father have equal shared parental responsibility for the child.
That each of the mother and father have responsibility for the child’s day-to-day care, welfare and development during period she lives with her and him.
That the child live with the mother, save for the periods described in paragraph (5) hereof..
That the child live with the father as follows :
(a)On the weekend of 9 and 10 August, 2008, during the period or periods he would have spent with the child if the orders governing his time with the child to this date had not been discharged.
(b)Commencing on 16 August, 2008, on each alternate weekend from 10:00 am. Saturday until 5:00 pm. Sunday, until the provisions of paragraph (5)(c) hereof commence operation.
(c)Commencing on 8 November, 2008, on each alternate weekend, from 5:00 pm. Friday until 5:00 pm. on Sunday, until the provisions of paragraph (5)(d) hereof commence operation.
(d)Commencing on 14 February, 2009, on each alternate weekend, from 5:00 pm. Friday until 9:00 am. the following Monday (or, if the child attends crèche on Monday, the time at which she commences at crèche).
(e)Commencing in the week which starts on 18 August, 2008, from 9:00 am. until 5:00 pm. on one week day in each alternate week on a day to be agreed between the parties and, failing agreement, each alternate Friday, until the provisions of paragraph (5)(f) commence operation.
(f)Commencing in the week which starts on 16 February, 2009 from 5:00 pm. on one weekday until 5:00 pm. the following day, in each alternate week, on days to be agreed and failing agreement, each alternate Thursday/Friday, until the provisions of paragraph (5)(g) hereof commence operation.
(g)Commencing in the child’s first term at school, on one weekday from the conclusion of school until the commencement of school the following day, on days to be agreed and, failing agreement, each alternate Thursday/Friday.
(h)For four consecutive days in each of the term school holiday periods in 2009 at times to be agreed and, failing agreement, from 5:00 pm. on the last day of the school term until 5:00 pm. on the fourth day thereafter and for the purpose of clarity THE COURT NOTES that although the child will not be attending school at this time, these orders take effect by reference to the Victorian gazetted school terms.
(i)For two periods of five consecutive days (a total of ten days) in the summer school holiday period in 2009/2010, at times to be agreed and, failing agreement, to commence, respectively, at 9:00 am. on 27 December and at 9:00 am. on 14 January, and to conclude, respectively, at 5:00 pm. on the fifth day thereafter.
(j)Commencing in the first school term holiday period in 2010, for one week in each school term holiday period, at times to be agreed and, failing agreement, to commence at 5:00 pm. on the last day of the school term and conclude at 5:00 pm. on the seventh day thereafter.
(k)For two consecutive weeks in the summer school holiday period in 2010/2011 at times to be agreed and, failing agreement, to commence at 9:00 am. on 27 December and conclude at 5:00 pm. on the fourteenth day thereafter.
(l)Commencing with the summer school holiday period in 2011/2012, for one half of the summer school holiday period at times to be agreed and, failing agreement, the second half in 2011/2012 and each alternate year thereafter, and the first half in 2012/2013 and each alternate year thereafter.
(m)On each of the child’s birthday and the father’s birthday:
(i)until the child commences school, for four hours at times to be agreed and, failing agreement, from 2:00 pm. to 6:00 pm.;
(ii)from the time the child commences school :
A. if a birthday falls on a school day, for two and a half hours at times to be agreed and, failing agreement, from the conclusion of school until 6:00 pm.; and
B.if a birthday falls on a non-school day, for a period of four hours at times to be agreed and, failing agreement, from 10:00 am. until 2:00 pm.
(n)From 12:00 noon on Christmas Eve until 3:00 pm. on Christmas Day in 2008 and each alternate year thereafter.
(o)From 3:00 pm. on Christmas Day until 5:00 pm. on Boxing Day in 2009 and each alternate year thereafter.
(p)If Fathers’ Day falls on a day on which the child would otherwise not have time with the father, from 10:00 am. until 5:00 pm. on Fathers’ Day.
(q)At such other times as may be agreed between the parties.
That the father do all things reasonably necessary to arrange for his mother, the paternal grandmother, to be in substantial attendance for the periods during which he spends time with the child pursuant to paragraphs (5)(a) and (b) hereof and THE COURT NOTES that this is not an order for supervision but an order aimed at assisting the child as she moves to spend more time with the father.
That from the first term school holiday period in 2009 the provisions of paragraphs (5)(d) and (g) hereof shall be suspended during school holiday periods, and the child’s residence with the father will recommence as follows (subject to agreement between the parties to the contrary) :
(a)weekend residence on the first Friday of the school term; and
(b)residence in each alternate week, in the second week of the school term.
That if Mothers’ Day falls on a day when the child would not otherwise spend time with the mother, she shall be returned to spend time with the mother between 10:00 am. and 5:00 pm. on Mothers’ Day.
That once the child commences kindergarten and, then, school:
(a)a reference to a period with the father which commences at 5:00 pm. on a kindergarten or school day shall be varied to provide for commencement at the conclusion of the kindergarten or school day; and
(b)a reference to a period with the father that concludes at 9:00 am. on a kindergarten or school day shall be varied to provide for conclusion at the commencement of the kindergarten or school day.
That the parties use their best endeavours to agree on the important days of religious observation and celebration within the Hindu religion and, to the extent necessary, vary the orders made this day to provide :
(a)that the child spend those period with the mother; and
(b)the father receive make-up periods in lieu;
and in the event the parties have been unable to agree within three months hereof :
(c)the mother shall advise the father in writing within fourteen days (of the expiration of the three month period) of the four most important religious festivals or celebratory days in the year (a total of four non-consecutive days); and
(d)to the extent that these days impact on the child’s time with him, the make-up time proposed by her, and such make-up time shall (unless agreed by the parties to the contrary) be within a three week period of the time foregone, and those arrangements shall thereafter apply,
PROVIDED THAT the mother may not nominate a day which would result in :
(i)the father foregoing time with the child pursuant to paragraphs (5)(m), (n), (o) and (p); and
(ii)the father being unable to spend consecutive days with the child as ordered during school holiday periods.
That the father have reasonable telephone communication with the child during periods she lives with the mother and, when she is old enough to utilise it, communication by e-mail, SMS messages and other electronic means.
That the mother have reasonable telephone communication with the child during periods she lives with the father and, when she is old enough to utilise it, communication by e-mail, SMS messages and other electronic means.
That as soon as practicable the mother authorise the crèche attended by the child to provide to the father, at his expense if any, copies of all reports, photo order forms and other publications routinely provided to parents.
That upon the child commencing kindergarten and, in due course, school, the mother forthwith authorise the principal of each kindergarten and school attended by her to provide to the father, at his expense if any, copies of all school reports, photo order forms and other publications routinely provided to parents.
That the father be at liberty to attend events, activities and functions at the child’s, crèche, kindergarten and school which are routinely attended by parents.
That the mother be and is hereby restrained from using any name for the child other than DUPLEIX.
That the father do all things reasonably necessary to ensure that the child does not eat beef or pork during periods she lives with him.
That until further order the father and mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child … born … November, 2005 or either of them from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.
That as soon as practicable the Registry Manager serve a sealed copy of these orders by facsimile and ordinary prepaid post upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
That each of the parties notify the other as soon as practicable in the event the child suffers a significant illness or injury whilst in his or her care and authorise the other to speak with all medical practitioners and other treating professionals.
That each of the parties keep the other advised of a telephone number:
(a)which can be used to telephone the child when in his or her care; and
(b)(if different) can be used to contact the other parent in the event of an emergency.
That the reasons for judgment delivered this day may be provided to :
(a)Dr. A;
(b)Dr. S;
(c)Ms. H;
(d)the Department of Human Services; or
(e)Victoria Police, if investigating any allegation of abuse of the child.
(23)That the parties continue to use a communication book and ensure that the book accompanies the child to changeovers.
That save where changeovers occur at the commencement or conclusion of a crèche, kindergarten or school day, and subject to any agreement between the parties to the contrary, the father collect the child at the commencement of a period of time with him from the mother’s home and the mother collect the child at the conclusion of a period of time with the father at the father’s home.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That each of the parties by themselves their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of the child.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES that the order for equal shared parental responsibility requires the parents to consult and agree on issues about the child’s long-term care, welfare and development, which include her education, religious and cultural upbringing, health, name and changes to her living arrangements that would make it significantly more difficult for her to spend time with a parent.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 204 of 2007

MR DUPLEIX

Husband

And

MS DUROC

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The subject child is two and a half. Her parents are Ms Duroc and Mr Dupleix. They separated just prior to the child’s first birthday. Her mother wants the child to continue living with her; her father wants her to move to live with him.
When the trial of the competing applications for residence commenced, the parties’ respective positions were in stark opposition. The mother alleged that the father had acted in an explicitly sexual way towards the child and in her presence. It was her case that the child was exposed to his depraved behaviour when the parties lived together, when the father had contact with the child after separation and, after this litigation commenced, during periods in which his time with the child was supervised by his mother. According to her, the child’s behaviour is flagrantly sexualised and disturbed and the child complains frequently of her father hurting her genital area. She submitted that any contact between the child and the father which was not professionally supervised in a contact centre would expose the child to an unacceptable risk of sexual abuse. The man she portrayed was cunning, dishonest and predatory.
For his part, the father alleged that the mother was intent on undermining and destroying his relationship with his daughter. It was his case that, having reluctantly settled an earlier dispute about the child’s care, the mother has invented a series of increasingly bizarre allegations of sexual abuse, oblivious to the harm this does to the child, and to her relationship with him. He submitted that the child could only be protected from this distortion of reality by moving to live with him and seeing her mother a few days in each fortnight. The woman he portrayed was possessive, unstable and malicious.
This characterisation is necessarily blunt; at times, each of the parties conceded the potential for a slightly more generous interpretation of the other’s conduct and personality. Nevertheless, these competing positions were, broadly, maintained through the five and a half day trial.
In her final address, counsel for the Independent Children’s Lawyer (ICL) submitted that the court should find there was no risk that the child would be sexually abused in her father’s care. While supporting the child’s continued residence with her mother, counsel for the ICL proposed that the father have regular and frequent unsupervised time with his daughter. This submission was posited on the court rejecting much of the mother’s account of her observations of her daughter’s behaviour and words. It left open the potential for the court to find that the mother genuinely believes the child has been sexually abused, while acknowledging evidence that challenged that analysis. At best, the ICL submitted that the court could find that the mother had an overvalued idea of sexual abuse, which matured into a conviction of abuse, and that she then misinterpreted and distorted her observations to fit that conviction. From the ICL’s perspective, the court should find, contrary to the mother’s description, that the child is a normal and happy child, primarily attached to her mother but with a good relationship with her father, and the parenting orders made by the court should reflect that reality.
This analysis struck at the heart of the mother’s case, as presented to that point. Thus it came as a surprise when her counsel (who addressed immediately following counsel for the ICL) proposed parenting orders in almost identical terms to those proposed by the ICL. In particular, the mother sought no supervision of the father’s time with the child, in a contact centre or otherwise, and proposed that the child immediately move to spending overnight time with her father.
Counsel for the mother conceded that the court could not be satisfied that there was an unacceptable risk that the child would be harmed in her father’s care. More importantly (to use counsel’s words), counsel said that the mother now accepts that there is no unacceptable risk of the child being sexually abused by her father. It was submitted that the court should not find that the radical change in the mother’s position cast doubts on the genuine nature of the concerns she expressed prior to and during the trial. Rather, having listened to the evidence adduced, including the challenge to the assumptions of a psychologist on whom she had relied, the mother accepted alternative and innocent explanations for the child’s behaviour and the behaviour of the father.
The father did not modify his application for residence, his counsel submitting that the radical change in the mother’s case was a disingenuous attempt to avoid the potentially adverse consequences of a finding that she made allegations of sexual abuse which were false and part of a deliberate strategy to cut him out of his daughter’s life. It was submitted that the about face was indicative of the mother’s manipulative style and boded ill for the child’s future.
No party seeks a finding that there is an unacceptable risk of sexual abuse to the child. In the light of that, some aspects of the evidence can be dealt with more briefly than might otherwise be the case. Nevertheless, the parties’ competing positions now can only be understood in context and that requires some consideration of historical events.

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
In McCoy & Wessex [2007] FamCA 489, in paragraphs 26 to 40, I summarised the core principles in the determination of a case of alleged child sexual abuse and considered a number of then recent authorities. Rather than repeat that exposition, those paragraphs are attached to this judgment marked “J-1”.

EVIDENCE

Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on an affidavit containing his evidence in chief sworn on 1 February 2008. While clearly frustrated at the allegations of abuse he maintained his composure and presented as an articulate, intelligent and personable man. His time with the child has been restricted, which may explain some naivety in his evidence of managing the proposed transition of the child into his care, and his plans for her.
The father has the support of his parents, who live in northern Victoria. His proposals were very dependent on his mother; he envisaged her coming to Melbourne from her northern Victorian home for a block of days in each week to assist with the child’s care until she was at primary school, or possibly, kindergarten.
The father is a healthy, able, 28 year old, in full time paid work and with some capacity to work at home. While I am satisfied that the child could only benefit from her grandmother’s involvement in her daily life, the sense the father imparted was of some passivity in the proposed care arrangements, and of arranging them around existing arrangements and his commitments.
In paragraph 106.13 of his trial affidavit the father deposed to bearing no animosity towards the mother, an assertion not borne out by the evidence as a whole or much of that affidavit, in which he described the mother as, variously, rude, abusive, immature, antagonistic, hostile, sullen, bitter, manipulative, malicious, angry and vindictive. His assessment is explicable; the allegations of sexual abuse made against him were unfounded and profoundly destructive. Inevitably they have coloured his responses. Some of his assertions were not supported by the evidence (an illustration is his evidence of receipt of monthly crèche reports, prior to separation) but I am satisfied he was generally an honest witness. I accept as true his denials of any sexually inappropriate conduct with the child, or in her presence.
The husband relied on an affidavit sworn by his mother, the paternal grandmother, on 12 February 2008. The paternal grandmother was cross-examined. She was a very impressive witness and I have no hesitation in accepting her evidence. I am satisfied she was a diligent supervisor of her son’s time with the child. The child is fortunate to have such a capable, generous and loving grandmother.
The husband relied on an affidavit sworn by a former colleague, Ms B, on 1 February 2008. One sentence was excised as inadmissible and Ms B was not required for cross-examination. Similarly, he relied on an affidavit sworn by his aunt, Ms D, and Ms. D was not required for cross-examination.
The father called Ms R, a psychologist whom the parties consulted prior to their separation and, albeit briefly, after separation. Ms R presented as a detached and insightful witness and I place weight on her evidence.
The father tendered and relied on a number of paragraphs of affidavits sworn by the mother, variously, on 9 February 2007, 4 June 2007, 25 June 2007, 7 August 2007 and 9 October 2007.
The mother relied on an affidavit containing her evidence in chief sworn on 4 February 2008. She presented as an articulate and intelligent woman and maintained her composure throughout robust cross-examination. I have no doubt that the professional relationship between her and a psychologist, Dr S (about whom I will say more later) was unhealthy, and that the mother’s over-valued ideas of sexual abuse had their origins in Dr S’s pre-occupation with the potential for sexual abuse. I am also satisfied that Dr S encouraged the misinterpretation and distortion by the mother of otherwise benign observations.
I do find that the mother was a willing participant in the development of scenarios allegedly indicative of sexual abuse and I am satisfied she distorted statements made to her by other professionals to support her cause. Further, I am satisfied that she was prepared to reconstruct events to suit the case she sought to make and that she did not always tell the truth. By way of illustration of the latter, I am satisfied she did threaten the husband on the evening after orders were made by consent in the Federal Magistrates’ Court on 6 June, 2007 and I am satisfied she retrospectively altered the communication book, to present herself in a better light.
The mother presented as a vulnerable and rather isolated woman who, having been let down by the father (who pulled out of the relationship shortly prior to their planned marriage) would have been happier to have him completely out of her life.
The mother relied on the evidence of Dr S, contained in an updated report dated 19 June, 2008. In over 20 years of hearing evidence from psychologists and like professionals, I have never encountered an expert witness on whom so little reliance could be placed. Dr. S demonstrated neither balance nor boundaries. Good psychological practice (as confirmed by Dr. A) requires a healthy degree of scepticism, a willingness to challenge and question, and the capacity to tease things apart. This was not a model adopted by Dr. S. She apparently saw no need to test or challenge the history given by the mother, to consider alternative explanations for the child’s alleged conduct or engage in any genuine psychological assessment of the mother, who became her patient. There was an almost hysterical edge to her evidence. Her demeanour was bellicose and defiant; this was apparent not only in the words she used, but in her tone and body language. She prevaricated, refused to comply with clear directions and seemed apparently unable to consider any possibility other than her own conviction that the father was a paedophile. She was unable to concede that if the facts on which she based her opinions were false, the opinion would need to be reconsidered.
There is force in the submission made by counsel for the father that Dr S started with a false major premise (a conviction of abuse) and cast around for evidence to support it, twisting such evidence as came her way to fit her case. I have no confidence in her commitment to tell the truth and I am confident that on at least one occasion she simply invented a piece of evidence (over-hearing the child complaining about her father hurting her) to fill what she realised was a significant flaw in the mother’s case, being the absence of any objective corroborative evidence of the child’s behaviour or complaints. Given the slant of Dr. S’s evidence, and her copious notes, it is inconceivable that she would have failed to note such a comment, or failed to detail it in her report.
The mother called Ms H, the co-ordinator of the C Child Care Centre in R, which the child has attended since she was six months old. Ms H was a most impressive witness and I have no hesitation in accepting her evidence. The flaws in the evidence of Dr S can be illustrated by reference to one part of Ms H’s evidence.
Ms H’s evidence was that on an occasion in mid-2007 she told the mother that the child has been observed to put her hands down her nappy on waking. She said she saw it “probably on a couple of occasions” and told the mother, because it was unusual. Ms H made it clear that she did not view this as sexualised behaviour. She was very clear that she never described the child as covering herself in a protective way (this was one of the mother’s subsequent accounts of this conversation) and said she definitely did not think that was the case. She and the staff never observed the child touching or reaching for her genitals when they were changing her nappy.
Ms H’s evidence was that Dr S spoke to her on the phone and she told Dr. S what she told the court. I accept that evidence as true.
Dr S deposed to this conversation on page 3 of her report. Her evidence was that in a telephone discussion with Ms H on 15 June 2007, Ms H confirmed that the child “always has her hands near her genitals” and “touches herself with or without her nappy”, for example, after sleeps and when playing by herself. When this was put to Ms H, she quietly but firmly denied its accuracy. She said she did not say this, and it was not her observation.
Early in her evidence, Dr S spoke of three events which, in her opinion, were indicative of the child having experienced inappropriate sexual stimulation. One arose from her conversation with Ms H. Her evidence then was that the crèche staff reported that “Yes, [the child] masturbates a lot at crèche” and touched her genitals a lot. Dr S repeated this account of the conversation, again using the word masturbation. She then said Ms. H did not use the word masturbation but said “touching her genitals”, or “touching herself”. She said Ms. H said the child did this when she awoke from sleep, when she was on her own and when her nappy was off. Challenged further, she described as “hair splitting” the suggestion that an observation of a child with her hand in her nappy was not always analogous with a child masturbating. Continuing, Dr S said that Ms H reported to her that a staff member had said the child “masturbates all the time”. Later she said “no, I correct myself”, and that the staff member said the child was “touching herself a lot, or touching herself all the time”.
The evidence of what occurred at the crèche came from Ms H. It was not challenged. In one sense, the dispute about the words used in the subsequent phone call between Ms. H and Dr. S is irrelevant. To the extent that Dr S drew conclusions based on a “fact” which the court finds to be untrue (Dr. S’s conviction the child touched herself or masturbated frequently at crèche, with her nappy on and off) her opinion is flawed. The relevance of the evidence of the phone call lies in the window it gives into Dr S’s mind, and into her preparedness to distort the truth to achieve an end. Not content with exaggerating what she had been told, Dr S then attacked the credit of both Ms H and the father, alleging that the father had intimidated Ms H and the crèche into misrepresenting what had occurred, and that the crèche was frightened of court involvement and, effectively, ran for cover. There was no evidence to support either proposition.
That it is not unusual for young infants to self stimulate after sleep was confirmed by Dr. M, a paediatrician called by the ICL. That may have been the reason the child had her hand in her nappy on waking in mid 2007; it may not. It is trite to say that not all touching by a child of his or her genitals is masturbation. It is also important not to lose sight of the actual observation, which was not of the child touching her genitals or masturbating, but of having her hand in her nappy.
The mother also called Ms O, a maternal and child health nurse, who was involved with the child from December 2007. Ms O’s evidence was of no prior involvement in a case involving an allegation of sexual abuse. A more experienced professional might not have so swiftly fallen in with what I am satisfied was a ploy by the mother, designed to obtain a notification to DHS from a theoretically impartial source. Ms O acted on what the mother told her; her own observations were of little unusual in the child’s presentation. Ms O acted honestly and honourably and I accept her account of what she was told and what she did.

The ICL relied on a report prepared by the Department of Human Services, dated 1 October 2007. No party sought that its authors, or any protective workers, be cross-examined. The ICL also relied on a family report by another psychologist, Ms T, prepared to assist the court in earlier litigation between the parties in 2007. Ms T did not see the parties after the sexual abuse allegations were raised and she was not required for cross-examination.
Two other expert witnesses relied on by the ICL were called for cross-examination. Dr A is a psychiatrist who psychiatrically assessed both parties and prepared a family report. His evidence was cogent and insightful and I place weight on it. Dr M is a consultant paediatrician at the Victorian Forensic Paediatric Medical Service who examined the child on three occasions, being 19 June 2007, 23 July 2007 and 28 April 2008. The last of those examinations was, I am satisfied, orchestrated by Dr S, in full knowledge of a court order which restrained the mother from taking the child to any health professional save for the usual ailments a child may suffer. Dr M presented as an experienced, detached and thoughtful witness and I place weight on her evidence.

PROPOSALS

The ICL proposed that the parties have equal shared parental responsibility for the child and that she live with her mother. She proposed the immediate introduction of alternate weekend time with the father, initially from Saturday morning until Sunday evening and moving, over a six month period, to Friday afternoon to Monday morning. She proposed that the paternal grandmother be present during the first three months of that time, albeit not in a supervisory role. She also proposed the immediate introduction of one day with the father in the alternate week, at times commensurate with his work commitments, and communication by phone. The orders proposed by the ICL included provision for the child to spend time with her father on his and her birthday, at Christmas and on Fathers’ Day. From 2009, longer periods of holiday time would be introduced so that by the year’s end she was spending one week in each holiday period with her father.
The ICL sought that prior to the child’s fifth birthday, and her starting school, the parties attend an agreed dispute resolution practitioner to review these arrangements with a view to the child spending more time with the father. While that would be consistent with the legislative scheme, the court could not be confident that would not lead to further litigation.
The ICL sought an order that the mother attend a psychotherapist recommended by the ICL, who should be provided with the reasons for judgment. The ICL was not convinced that psychotherapy would benefit the child at this time and did not support such an order.
The mother sought that the parties have equal shared parental responsibility for the child and that the child live with her. She proposed the immediate introduction of alternate weekend time with the father, from 10:00 am. Saturday until 5:00 pm. Sunday and time with him on Wednesday in each alternate week, from 9:00 am. to 4:00 pm. That regime should remain in place until the child turns three (November 2008) at which time the alternate weekend periods should extend from 6:00 pm. Friday until 5:00 pm. Sunday. On turning four, they should extend from 6:00 pm. Friday until 9:00 am. Monday. From the beginning of 2010, the father should have a week with the child in each school term holiday period and, by the end of that year, two weeks of the summer holiday period.
The mother proposed that the orders governing the child’s time with her father on special days mirror the orders made in that respect on 6 June, 2007.
The mother would consent to an order that she obtain specialist psychological help to assist her in dealing with the child and the child’s transition to spending more time with her father. Unlike the ICL, she sought that the child see a psychotherapist who could provide feedback to the parents to assist in the transition period.
The father proposed that the parties have equal shared parental responsibility for the child and that she live with him. He proposed that the child be with her mother from Friday afternoon until Monday morning in each alternate weekend, and from 9:00 am. Wednesday until 9:00 am. Thursday in each alternate week. There should also be a sharing of school holidays and orders for the child to spend time with both parents on special days. The father would not resist psychotherapy for the child to help her cope with the adjustment to his care. He sought that the mother be restrained from using any name for the child other than Dupleix and that both parties be restrained from taking her out of Australia, save with the consent of the other.

chronology

The mother was born in November 1968 and married Mr DE in May 1989. Later that year she and Mr DE migrated to Australia and their son, A, was born here in January 1992. In 1994 the mother was naturalised. In 1995 she and Mr DE separated.
The father was born in northern Victoria in January 1980. He and the mother met in early 2004, when both were working at an insurance company in Melbourne. She was 35; he was 24. The mother and A were living in an apartment in the inner city and the father began spending time with them there. By June 2004 they were living together. Later that year they travelled overseas and the father met the mother’s parents.
The subject child was born in November 2005. By then the parties and A were living in a townhouse in a western suburb. In about February 2006 the mother returned to full-time work at the insurance company. When she was at work the child was initially cared for by the mother’s parents, who were visiting, and from about April 2006 she attended the C crèche from Monday to Friday, between 8.30 am and 5.30 pm.
In May that year the mother went overseas to visit her father, leaving A in the care of the father. The mother’s father died in July 2006, a devastating experience for her. By then, the parties were considering marriage, and a wedding was planned for December that year. However, by August 2006 the relationship was sufficiently troubled for the parties to arrange to attend couples counselling with Ms R.
Ms. R agreed that when the parties saw her, issues were raised “around” the husband’s anger. She said what was reported as anger was intense frustration and disappointment at being “misled and lied to”. It is probable the mother, too, felt she had been misled and lied to and the parties’ problems were exacerbated when she found sexually explicit material in the father’s wardrobe in September 2006 and by his admitted use of pornography, through magazines, DVDs and the internet.
In October 2006, with wedding plans finalised, the father decided to leave the relationship, and did so. This decision caused the mother a great deal of distress and compounded the grief she was experiencing as a result of her beloved father’s death. She was left to cancel the wedding and face life as a single parent of two children, a reality she expressed with clarity in a letter she wrote the paternal grandparents on 3 November, 2006.

The parties then attended mediation with Relationships Australia to sort out arrangements about the child. It was agreed they would trial the father having time with her twice a week after work, collecting her from crèche and returning her to the mother’s home at about 6.30 pm. He was also to see her for four hours on each Saturday.
The mother told Ms T in March 2007 that after separation she felt pressured by letters and phone calls from the father’s parents, in which they sought to see the child and requested mediation to assist in resolving that aspect. Two letters sent by the paternal grandmother were in evidence, dated 26 October, 2006 and 6 November, 2006. They are respectful, affectionate, practical and (objectively) far from intimidating. That the mother responded with, effectively, a demand to be left alone with the child is indicative of her then state of mind.
The mother became very concerned that the child’s time with her father was upsetting her routine, and unsettling her. It is probable the child, although very young, was very distressed as a consequence of the separation, responding to her mother’s grief and distress and to the absence of her father, who had been part of her life until then.
In November 2006 the mother left the western suburbs property and moved to inner city Melbourne, where she remains.
On 22 January 2007 the husband filed an application in the Federal Magistrates’ Court seeking equal shared responsibility for the child, and that she live with him in each alternate week. In a response filed by the mother on 9 February 2007 she sought that the child spend time with the father from 4:00 pm. until 6:30 pm. on each alternate Wednesday and on each alternate Saturday from 10:00 am. until 4:00 pm., and that his time with her be supervised.
In February 2007 the husband left the insurance company and obtained work as an account executive.
On 27 February 2007 orders were made in the Federal Magistrates Court providing that, until further order, the child live with the mother and spend time with the father from 4.30 pm. until 6.00 pm. each Tuesday and Thursday, from 10.00 am. until 6:00 pm. on each Saturday and from 10.00 am. until 6:00 pm. on each alternate Sunday. These orders were not made by consent. Orders were made for the preparation of a family report by Ms T, who the parties saw the following month.
The mother told Ms T of the child’s distress and of some behavioural disturbance. Staff at the crèche had noticed that the child changed in the period after her parents’ separation. She became upset, and cried a lot; Ms H’s evidence was that the separation had obviously dramatically impacted on her and she appeared to be fretting. She wanted to be picked up continually, which is difficult in a crèche. The mother spoke of the child’s distress and of the difficulty in putting her down to sleep, and keeping her asleep. The mother decided to significantly reduce her own working hours, in the hope that more time with her would settle the child, and she made this change in mid 2007.
In her report Ms T noted that whilst it is appropriate for babies and toddlers to need routines, it is important that these not be taken to extremes, nor used as an excuse for restricting the time the absent parent spends with his or her child. She saw no good reason why the child could not be weaned at night and made clear the importance of the father finding long term accommodation in relatively close proximity to the child’s residence and a job with flexible hours.
Ms T proposed a three stage regime. She recommended that, initially, the child be with her father from 4:00 pm. or 4:30 pm. to 6:00 pm. daily during the week and, on every second weekend, from 9:00 am. on Saturday until 5:00 pm. on Sunday. Once at kindergarten, she recommended that the child spend a week with her father during each of the short holidays and for two weeks during the Christmas holidays. That routine could be preserved until the child commenced school, when she would have sufficient maturity to be separated from either parent for long periods of time (such as a week) on a regular basis and would be able to manage two households and the changes necessary for such an arrangement.
As the mother had expressed concerns about the father’s psychiatric state, Ms T recommended that he undergo a psychiatric assessment and that the mother commence and sustain long term counselling to address her anxiety. Given the mother’s account of the child’s distress, Ms T recommended that the child be assessed by a child psychologist.
On 11 May 2007 Dr S received a referral from Dr Y, a general practitioner, to provide psychological services to the child. Dr S saw the parties together to discuss the child’s adjustment to the contact arrangements on four occasions, being 9 May, 14 May, 22 May and 5 June 2007. Although theoretically the client, the child was seen by Dr S on one occasion only; she attended with both parents on 30 May 2007.
Dr. S reported at that stage that she felt the child was too young for the long periods of separation from her mother at weekends, and that the late afternoon access visits were disruptive of her dinner time and settling to sleep routines. She reported that she “voiced to both parents together” her opinion that the magnitude of the child’s behavioural reactions seemed excessive as a reaction to separation per se and she attributed it to the child being away from the mother too long, in the less familiar care of her father.
On 18 May 2007 the father filed an amended application seeking that the child live with him and spend time with her mother. In an amended response filed on 4 June, 2007 the mother sought that the child live with her and have regular and frequent time with the father.
It was the mother’s case that from late March 2007 she witnessed the child crying hysterically, for no apparent reason, on a regular basis, whereas she had formerly been a happy and bubbly child. That summary of her evidence is taken from the mother’s Case Summary filed on 6 May 2008 and is consistent with accounts given by her. It is not consistent with Ms H’s evidence, who dated the change in the child’s behaviour to the period after October 2006, and specifically referred to her distress between October and December 2006.
The mother alleged that the child woke regularly during the night and would not settle back to sleep easily, particularly after having spent time with her father during weekends. The mother was also concerned that the child appeared to lose her appetite and was not eating or drinking well.
In April 2007 the mother took the child for a regular check up to the local Maternal Health Centre. It was her evidence that the health nurse said that the child’s weight increase had slowed dramatically, and that her weight gain had dropped to 20% for her age. The impression she gave, in an affidavit sworn on 4 June 2007, was that this was of concern to those at the Health Centre. Her description of significant weight loss and expressed concern does not sit easily with the record of that visit (which was on 4 April 2007) in the Centre’s records, which is that “[the child’s] weight has dropped down slightly”.
In that affidavit sworn on 4 June 2007 the mother raised concerns about an account given to her by the father during their relationship of an incident which occurred when he was baby sitting in northern Victoria as a teenager. She deposed that she became concerned because the father had given three varying versions of his story and said that it was only since separation that she began to question his account.
In that affidavit she said that the father initially told her (in 2005) that he was baby sitting and bathed a little girl, who later informed her parents that the father had touched her inappropriately. He told her the parents believed the child, and he was told he would not be caring for the children again. He told her the little girl had made it up and assured her there was nothing to worry about.
The mother then deposed to raising the allegations with Ms R and Dr. S. Contrary to her evidence of the father giving three varying versions of his story, she then deposed (only four paragraphs later) that the father told a similar story on each occasion it was raised. She went on:
“I have no evidence as to whether the allegations are true or false and I would like to believe they are false as I have believed this for some time. I have witnessed the Father interacting with [the child] and I have observed that he loves her very much and he has done nothing to suggest that he would harm [the child] in any way. I simply raise the allegations as there is no evidence aside from the father’s word to show that the allegations are false.”
The accounts of the father and his mother in relation to this incident were consistent. When he was about 16 or 17 years old, he babysat for a family in northern Victoria. One of the children threatened to accuse him of touching her if he did not allow her to stay up late. He reported that to his mother when he came home and declined to baby sit for the family after that, despite being asked to do so. The parents of the child were business associates of his parents, who continue to have cordial relations with them.
The mother did complain in that affidavit of the father’s interest in pornography and his possession of pornographic material. She deposed that she was “not adverse to pornography” but was concerned about the frequency of the father’s use and that he was leaving it around the home, where the children could see it. The father did not deny that he accessed pornography when the parties were together, and continues to do so. It was never alleged that the pornography involved children. That did not stop Dr S slipping in a reference to child pornography at one point in her evidence.
The parties’ competing applications for parenting orders were fixed for hearing in the Federal Magistrates’ Court on 6 June 2007. On that day final parenting orders were made, by consent. They provided for the child (who was then almost 19 months old) to live with the father from 5:30 pm. to 7:00 pm. each Monday and Wednesday. Until she was two, she would also live with him each Saturday from 10:00 am. to 5:00 pm. and each alternate Sunday from 10:00 am. to 5:00 pm. Until May 2008 she would also be with him for a period on alternate Fridays, from 5:30 pm. to 7:30 pm., preceding the Saturday time. From the first contact weekend in May 2008 she was to be with her father from 5:30 pm. Friday until 5:00 pm. Sunday each alternate weekend, plus time on Monday and Wednesday afternoons, on Christmas Day and on other special days.
Ms H’s evidence was that on one occasion she noticed that the child was red around the genital area and made a point of catching up with the mother. The crèche does not put cream on children and she wanted to let the mother know. The child care worker dealing with the child at the time thought the child was probably teething, giving rise to acidity in her urine, and that the redness was consistent with that. Ms H’s evidence was that the mother told her that she had already noticed the redness and was going to take the child to the doctor. When Ms. H subsequently asked the mother what the doctor thought, the mother told her that the child cried and put on such a performance that she would not let the doctor near her. It is probable the mother took the child to Dr JO at the … Medical Centre, who said the redness was probably caused by dehydration.
Late in Dr S’s evidence, she said that the child’s red bottom was discussed during a session she had with the parents in May 2007, prior to the final orders of 6 June, 2007. Save for the concern the mother expressed about the father’s account of the babysitting incident many years earlier, there is no evidence that anything said or done to that time in the course of the Federal Magistrates’ Court proceedings was indicative of the mother, or anyone professionally involved with the child, alleging she had been sexually abused. Dr S agreed that when the red bottom was discussed with the parents she had no prior indication that sexual abuse could be in issue. Nevertheless, her evidence was that she said to the father that the redness could be a result of not eating or drinking (presumably consistent with Dr JO’s diagnosis) or it could be indicative of sexual abuse. In a histrionic re-enactment in the court room, which said much about her pre-occupation with sexual abuse, Dr S said that “I looked him in the eye” and “I gave him a warning”, an astonishing response. Dr S had no answer when asked why she did not put other options forward, such as the child’s nappy being left on too long, or the child teething. She said she raised the subject because “given my training and background, we get suspicious of red bottoms and vaginas. We are aware of it and flag it in our minds – we don’t sweep it under the carpet”. She placed significant emphasis on “we”, very clearly differentiating herself (or “ourselves”) from those prone to ignoring sexual crimes against children.
Dr S’s evidence became increasingly illogical as she strove to paint the father as a man pursuing time with his daughter for sinister reasons. She said she could not reconcile his “desperate desire” for increasing contact with his daughter with his lack of commitment to the mother. She said she thought his desire to go clubbing was inconsistent with a desire to have a relationship with a child. She placed great weight on the mother’s advice of the father’s loss of sexual interest after the child’s birth, and of what she was told about him wanting to bath the child.
The evidence supports a finding that from the time of the discussion about the red bottom, and “the warning” by Dr S, Dr. S believed the father was sexually abusing the child. Very soon, she was encouraging the mother to collect evidence to fit the theory.
The father’s first time with the child pursuant to the orders of 6 June took place on the afternoon the orders were made. He collected her from the mother’s home at 5.30 pm. The mother agreed that when he endeavoured to speak with her, she said “not today, it’s been a long day” and walked away. According to her, the child was very distressed. In her affidavit, she said nothing of the child’s return that evening.
The father’s evidence, which I accept, was that when the mother came to his home at 7 pm to collect the child on 6 June she placed her hand on the child’s head and said “I swear on my baby’s life, I will never forgive you for what you did today”. Despite being asked not to speak like that in the presence of the child, she repeated that comment.
The mother’s evidence was that on the morning of 7 June 2007, the day after the final orders were made, she “witnessed some strange behaviour by [the child] and was puzzled by it”. Whilst changing the child’s nappy, the child started touching her genitalia and saying “dadda, dadda”. On that slight foundation was to be built an edifice of sexual abuse.
According to the mother, she saw nothing sexualised in the child’s “strange behaviour”. But while discussing it with a friend later that day, who she noted to be a solicitor, she was told that it was not normal behaviour for a child of this child’s age. The friend was not called and the court can say nothing about her asserted expertise in such matters. As a result of that comment, the mother rang Dr S; Dr S was unavailable and the mother left a message. She then received a text message from Dr S advising her “to document everything” and advising that her message was of concern.
The wife deposed that “in preparing my instructions to Dr [S]” she included details of an incident that she and A witnessed on Saturday 26 May 2007. She said that both observed the child walking around the house with her hands near her genital area, saying Dadda, Dadda. She continued:
Also on this day after spending time with the father [the child] came home and soon after entering the house, sat on top of [A] (who was lying down on the floor watching television) and commenced to rub his genital area through his jeans saying “Dadda, Dadda”.
I was alarmed by [the child’s] behaviour and observed that [A] was very embarrassed. I assumed at the time the she was possibly associating [A’s] jeans with the father’s jeans which was the reason for this touching. All of these observations were reported to Dr [S].
The mother saw Dr S on 30 May 2007, with the child and the father. Dr. S saw the mother again on 5 June 2007, with the father. The alleged observations of 26 May 2007 were not aired in either of those sessions.
Dr S’s account of the mother’s report of these observations to her is rather more colourful. She reported:
On Thursday 7 June 2007 the mother Ms [Duroc] informed me of sexualised behaviour in [the child] from three separate sources, two on that day and one prior. The mother reported that [the child] had ‘touched herself’ during a nappy change, and said the father’s name; the mother then recalled that earlier in the week [the child] had tried to unbuckle the belt of her teenage brother’s jeans, tried to pat and hold his genitals, and said the father’s name. On the same day the crèche had informed the mother that [the child] awoke from her sleep with her hand on her genital area.
A’s own account can be found in a statement he made to police on 1 September 2007, which is annexed to the mother’s trial affidavit. In the statement A said :
26.Earlier on this year, at our flat in [Melbourne], one day [the father] had just dropped [the child] off at home. [The child] myself and Mum were playing. We were in the loungeroom on the floor. [The child] reached for my belt buckle and said “Dada” which is her word for Dad. I moved her hand away and she continued to do it two or three more times. Mum saw her and took her away.
As is obvious, A’s account of the incident is far more benign than that given by the mother in her affidavit, and significantly more benign than the version reported by Dr. S.
That day Dr S made a formal notification to the Department of Human Services. It was put by counsel for the mother that this was the first of many overt acts by Dr. S which were interpreted by a vulnerable and anxious mother as proof of the child’s exposure to significant abuse. That submission is well founded.
In paragraph 31 of her trial affidavit, the mother deposed that, as a result of events on 7 June 2007, “I was concerned that [the child’s] behaviour was a direct result of her being sexually abused by the father.” From then, the die was cast. While the mother in the witness box gave the impression, on occasions, of having a more open mind on the question of sex abuse, I am satisfied she viewed the child’s behaviour thereafter through a prism of conviction of sexual abuse. Unhappy with the orders that had been made, albeit with her consent, she found a key to lock the door against the father’s continuing relationship with his daughter, a relationship which – were the consent orders to remain in force – would result in the child spending regular and frequent periods of time out of the mother’s care.
The mother then advised that the child would not be spending time with her father until further notice.
DHS arranged for the child to be examined by Dr. M on 19 June, 2007. Dr. M’s evidence was that she understood, from reading Dr. S’s report, that the behaviour of which the mother complained had been substantiated by the crèche. It had not. She also assumed that Dr. S was professionally engaged with the child and treating problems she had in settling, through play therapy and other interventions. She was not aware that Dr. S had then seen the child only once, in the presence of both parents, and had undertaken no form of therapeutic intervention with her.

Dr. M expressed the opinion that the general deterioration in the child’s behaviour was most likely secondary to the stress in her life, such as the separation of her parents, and generalised behavioural disturbances or general indicators of stress, rather than particular indicators of sexual abuse. She noted that it is developmentally appropriate for children of the child’s age to demonstrate self stimulatory and self comforting masturbatory behaviour and it was only of mild concern that she had mentioned her father’s name on two occasions. It was reported to her that the behaviour had not been on-going and it was difficult in a child with minimal verbal skills to interpret what that might mean. On genital examination, findings were normal, which neither confirmed nor refuted child sexual abuse.
On 14 June, 2007 the father filed an application seeking that the child live with him, that her time with her mother be reserved and that the mother be psychiatrically assessed. That was fixed for hearing on 20 June, 2007. The mother responded by seeking that all previous orders be suspended, the child live with her and the father’s time with the child be supervised. She also sought that the case be transferred to this court.
On 20 June, 2007 orders were made providing for the father to spend time with the child, to be supervised by the father’s mother or his aunt, Ms. D. The Federal Magistrate also made a recovery order, which was to remain on the court file, pending the mother’s compliance with the orders. An independent children’s lawyer was appointed and the case was transferred to this court.
On 26 June, 2007 DHS advised Dr. S it would be taking no further action, and that no further investigation was warranted.
On 6 July, 2007, Dr. S amended her report to express an opinion that the child’s apparent stress stemmed both from repeated and prolonged separations from her mother at inappropriate times and from likely inappropriate sexual touching, and possible exposure to male nudity, such as seeing or touching her father’s penis. The only contact she was prepared to recommend was access at a supervised contact centre. In that report she referred to “extreme behaviours, distress and sexualised behaviours . . . consistent with child sexual abuse”.
On 7 August, 2007 the mother filed an application seeking that the time provided for in the orders of 20 June, 2007 be suspended until arrangements were made for the father to spend time with the child at a supervised contact centre. She also filed a notice of child abuse in which she detailed the alleged abuse as follows :
Prior to 7 June 2007 the father [Mr Dupleix] behaved inappropriately with [the child] causing her to engage in sexualized behaviour, suffering from prolonged difficulty in eating, sleeping, settling or relaxing upon her returning from time with her father. Putting a dolls face on her vagina, making kissing sounds, positioning herself under a running tap so that it ran over her genitals, attempted fondling her step brother’s genitals, inviting the mother to kiss her vagina.
The mother deposed to strange behaviour of the child after the orders of 20 June, 2007, which (she deposed) indicated to her that sexual abuse by the father was continuing. She said the child continued to have prolonged difficulty with eating, sleeping, and settling or relaxing upon her return from her father; the child was putting her doll’s face on her vagina and making kissing sounds; when bathing she was positioning herself under running taps so as to cause the water to flow over her vagina; during nappy changes she commenced putting her hand on her vagina, looking at her mother and inviting her to kiss her vagina. The mother deposed to reporting these matters to Dr. S.
Dr. S recorded advice from the mother of “new and more concerning behaviours” provided on 12 July, 2007. In addition to the behaviour described in the preceding paragraph of this judgment, Dr. S reported that the mother advised that the child repeatedly touched herself during nappy change, and said “Dada”; refused to have her nappy put on and ran away, wanting to be chased and kissed; and whilst playing with her toys, undid her nappy, lay down, put a toy on her genitals and made kissing sounds.
Dr. S reported that the mother also advised that after weekend access on 14 July, the child refused to be dressed after her bath, sat on the carpet and inserted her finger in her vagina; after the weekend access of 21 July she repeated “all of the above behaviours” but added the words “kissy kissy”.
After the week and weekend access 4 August, 2007, Dr. S reported that the mother told her that :
[The child] pushed her mother to lie on the floor, tried to open her jeans buttons saying “open . . . open”, tried to pull her mother’s underpants down, put her hand inside, putting her face near her mother’s vagina saying “kiss . . . kiss”. Her mother pulled away, telling her “no [child]” and trying to distract her away. This was witnessed by maternal grandmother and both she and the mother were shocked and embarrassed.
[The child’s] new undergarment (upper body) was removed and substituted for no stated reason. This would involve removing all her clothing for no obvious reason.
Another notification was made to DHS on 13 July, 2007, the day after the mother brought the first of her new concerns to Dr. S. The DHS report summarises the behaviours described by the mother. Enquiries revealed that the childcare centre reported that the child was often very tired and wanted to go to sleep but workers had witnessed none of the behaviours described by the mother. When changing her nappy they had not observed the child touching or reaching for her genital area, nor observed any simulated vaginal kissing with dolls. Workers confirmed the incident earlier when the child woke up from sleep and had her hand in her pants, but advised the behaviour had not been repeated or seen since that time.
The child was seen by Dr. M again on 23 July, 2007, to monitor her weight and review her behaviour. The mother described behaviour to Dr. M similar to that reported to Dr. S but also told her that the child would touch her genitals and then say “Mumma” and make the kissing noise. She said the child had put things near her genitals and tried to insert objects into her vagina, was very clingy, often did not want to go to her father and continued to have nightmares. Dr. M confirmed that the child was physically in good health and she had no concerns regarding her physical growth.
Dr. M accepted the mother’s account of her observations and said the “on-going sexualised behaviour” warranted further assessment because of concern that the child might have been sexually abused. She added that other causes of the pattern of behaviour also needed to be considered. She was unable to exclude the possibility that the on-going behaviour could be attributable to sexual abuse and recommended that the child would benefit from continued psychological intervention by Dr. S or by being assessed at another service, such as Family Transitions, who could work with the child to investigate the aetiology of the sexualised behaviour.
As that recommendation made clear, Dr. M believed (wrongly) that the child had been receiving therapeutic treatment through Dr. S.
The DHS report notes that workers advised Dr. S (in a letter dated 8 October, 2007) that the mother might like to consider taking the child to the Family Transitions programs, as recommended by Dr. M. A phone number was provided. There was no evidence the mother took up that referral.
It is clear from the DHS report that workers were mindful of the fact the concerning behaviours described had not been observed by any independent party. In its report it noted that Dr. S appeared to have obtained all of her information from the mother and had formed her opinions based on that information. It is clear DHS workers placed weight on the fact that the childcare centre had observed no unusual sexualised behaviours. DHS did not intervene.
On 13 August, 2007 the senior registrar referred the matter to the Magellan registrar and requested DHS to intervene pursuant to s.91B of the Family Law Act 1975. Orders made that day, by consent, required both parties to attend on Dr. A for the preparation of a family report and psychiatric report, and for Dr. A to undertake a psycho-sexual assessment of the father. The mother was restrained from consulting with, or taking the child to be examined by, any medical, psychological or other health professional “save for the usual health ailments the child may suffer or otherwise with the consent of all parties”.
Pursuant to those orders the father was to continue to spend time with the child as set out in paragraphs (3)(c) to (3)(j) of the orders of 6 June, 2007. Further, he was permitted to spend additional time with her at her crèche, as arranged between him and the crèche managers. No time was arranged at the crèche as Ms. H, reasonably, saw parental involvement of that sort as beyond the crèche’s role. The father was disappointed but accepted her decision with equanimity, attributing it (reasonably but probably inaccurately) to the crèche being concerned at having an alleged paedophile on its premises.
The mother deposed that in late 2007, A advised her
. . . of events of which he had been involved with the husband and of activities of which he had observed the father to have been involved with [the child] which would support the allegation that the father was sexually abusing [the child].
A wrote his observations on a piece of paper, which the mother annexed to her affidavit. The note reads as follows :
Series of events, incident 1
-    I went upstairs, to go to my room
-    Heard a noise coming from the bathroom
-    I pushed open the shut door
-    [The child] was sitting in the bath
-    [The father] was sitting on the edge of the bath, masturbating
-    His pants were half down
-    I apologised & walked out
-    [The father] didn’t say anything
-    He emerged 5 minutes later, no words were exchanged.
Series of events, incident 2
-    I walked into the Front lounge area from the kitchen, where I was watching telly
-    I saw [the father] throwing [the child] in the air
-    She was completely naked
-    And he would kiss her vagina on the way down
-    She was giggling
-    I said, “What are you doing”
-    He immediately put her down
-    And I went upstairs into my room
In August 2007, DHS workers told the mother they wanted to speak with A. The mother’s evidence was that Dr. S advised her to tell A that the interview related to allegations of sexual abuse of the child. Dr. S denied that, a denial I accept.
The mother said that when A asked why DHS workers wanted to speak with him, she told him it was about the child’s unusual behaviour. The summary of the evidence to date illustrates the range of behaviour described by the mother, behaviour which occurred not in isolated circumstances, but at all times of the day and night. Despite living in the same house, A apparently had no idea what she was talking about. To illustrate the sort of behaviour of which she spoke, she reminded him of the occasion when the child lay on top of him. According to her, it was a little later that day that A disclosed inappropriate behaviour by the father towards him, and towards the child, well prior to the parties’ separation.
A was born in January 1992. In August 2007 he was fifteen. Dr. A described A as a highly intelligent boy who has a close and supportive relationship with his mother and who was disappointed when his hopes of an intact family were not realised, as a consequence of the father leaving the home.
A had been seen by Ms. T when he was fifteen years and two months, in 1997. He told Ms. T he was initially not happy to have the father in the home but learnt to accept his presence and, overall, thought that the father was “alright” until he left the house. A took the view that the father had been selfish in taking his belongings from the home without warning and in offering no assistance to him and his mother when they had to leave. He felt that the father was not very protective of his mother, not very talkative and not very happy for much of the time. He said that at other times he was a bit angry, but assisted A with his homework. He described the father’s parents as “decent people”. He would be happy to occasionally do something together with the father and his mother and the child, but not to spend a lot of time with him. He told Ms. T that he and the father did not have much in common and in general, he would not feel comfortable about retaining a relationship with the father.
In her conclusion, Ms. T noted that A appeared quite resentful of the father, resentment which was explicable as he had been displaced as protector of his mother.
It will be clear from that summary that A was prepared to be critical of the father. Given a clear opportunity, he said nothing whatsoever to Ms. T consistent with the account of pre-separation events he gave in August 2007, only some four or five months later.
A subsequently made a police statement on 1 September, 2007. In that statement he repeated the allegations above. He dated the incident in the bathroom at September 2006 and the incident in the lounge room as “around August or September 2006”. In the police statement he conceded he could not see exactly where the father was kissing the child, having thrown her in the air, but “it looked like it was straight onto her vagina because I could still see her belly at the top of his hair”. In relation to the incident in the bathroom he said he saw the father had one hand on his penis and he could see part of the father’s penis and that “it looked to me like he was masturbating”.
A went on to talk about the father’s interest in pornography, and of the father unjustly accusing him of downloading porn. As noted earlier, in the police statement A also referred to the incident which involved him and the child on the floor of the lounge room.
Dr. A interviewed A and, as I am satisfied a competent professional in his position should, gently explored and challenged A’s recollection of his observations. Again, A expressed his unhappiness that the father could simply walk out on his fiancée, daughter and son; by the last of those he meant himself. He had been looking forward to a stable family and had begun to think of them as a family unit. He felt let down by the father and his family and felt that they had not lived up to their own values.
To Dr. A, A said he thought the incident in the bathroom occurred around August 2006. In response to direct questions A said that he only witnessed the father for a few seconds, saw his hand in the area of his lap but did not recall seeing his penis or noticing whether it was erect. In relation to the kissing incident he accepted that the father could simply have been blowing raspberries on the child’s tummy. While A indicated clearly that he did not want to change anything he had said to Dr. A or to the police, and that it was true, he accepted that there was a possibility his interpretation of some of the father’s behaviours may have been mistaken. A conceded that the issues were not as clear cut as he previously said.
No-one sought leave to call A, a sensible course. It is possible that when the mother spoke to him of sexual abuse and gave as an example the child lying on top of him, A thought he was being accused of improper behaviour, and sought to move responsibility to the father, a man he resented and with whom his mother was locked in litigation. The seeds of his disclosures may have been sewn, directly or indirectly, by his mother.
The paternal grandmother’s evidence was of having seen the father lift the child in the air and kiss her on the stomach; she said she, too, had kissed her or blown raspberries on her stomach when she had changed her nappy. She said this occurred openly and in front of the mother. The father was adamant that he would not have thrown the child into the air at that time, as she was too young.
The evidence does not support a finding that the father exposed himself or masturbated in front of the child, or kissed her genitals, as initially alleged by A.
The mother also alleged that when she was overseas, and the father was looking after A, the father had come to A’s room and asked him whether A wanted to sleep with him that night. Later, A heard the father come into his room but the father did not respond when asked by A what he was doing. According to the mother’s account, the father’s mother was present and in the morning told A that it would not happen again and he should not tell his mother about it.
The only account from A of this incident is contained in Dr. A’s report; it is not referred to in the police statement or in the initial notes A wrote. To Dr. A he said he thought that the father may have been trying to substitute for his mother in her absence and he said nothing about any conversation with the paternal grandmother. The paternal grandmother denied any conversation of the sort the mother reported and I accept her denials. If the mother sought by adducing this evidence to raise an inference that the father sexually propositioned A, I draw no such inference.
In the DHS report dated 1 October, 2007, the writer expressed concern for A’s emotional and psychological well-being, expressing the opinion that he appeared to have been drawn into the conflict between his mother and the father. The writer noted the importance of the mother not imposing her own negative views of the father onto A; she said that if it were found that A had been influenced to make false allegations against the father, that would severely compromise A’s psychological and emotional well-being.
A is clearly very protective of his mother. He has minimal connection with his own father. In a letter she wrote to the paternal grandmother on 3 November, 2006, the mother said that “the breakup of the relationship has devastated [A]”. Directly involved in the proceedings since (at the latest) seeing Ms. T in March 2007, it is probable he has been well aware of his mother’s investment in the outcome. Told of allegations of abuse and, possibly concerned that he himself might be implicated, it is likely he cast around for ways in which to help his mother and, whether directly encouraged or advised by her, did what he thought would assist her, which was to dredge up behaviour which could be presented to depict the father in a poor light. It is not surprising that the police elected not to take the matter further. I do not find substance in these allegations.
The DHS report notes that workers advised the mother that DHS would not endorse the cessation of access, given that the child’s time with her father was supervised, notwithstanding A’s allegations. According to the report, the mother’s solicitor subsequently rang DHS; his client, he advised, had told him that DHS advised her to cease access and he rang to confirm the DHS position, being sceptical such advice would have been given. Advised of this, the mother told DHS her solicitor was lying and she had never told him Child Protection recommended the cessation of access. One might be more sceptical of that untested evidence were it not consistent with the mother attributing responsibility to her lawyer and to others at times to, I am satisfied, avoid the consequences of her own conduct.
As instructed by Dr. S, the mother compiled detailed notes of the child’s behaviour. The nature of these can be illustrated by annexure MD-2 to the affidavit sworn by the mother on 4 February, 2008. That contains a list of “some other behaviours” between 23 June and 24 July, 2007. They are annexed to this judgment, marked “J-2”.

On 12 October, 2007 Bennett J. made further interim orders, pursuant to which the father has seen the child for seven hours on each Saturday, and each alternate Sunday, supervised by his mother.

I have earlier noted that A, an intelligent fifteen year old, apparently observed nothing of concern in his sister’s behaviour, to such an extent that he had to ask for an example when told the DHS investigation related to the child’s behaviour.
Dr. M’s evidence was that she would not expect a child of this child’s age to be able to disinhibit behaviour in different social settings. That is, a child of that age does not have the cognitive or emotional capacity to tailor her behaviour to exhibit bizarre and disturbed sexualised behaviour only in the presence of her mother.
The child spends two days each week at the crèche. She saw Dr. M on three occasions. She spent time with Ms. O and Dr. A. She is with her maternal grandmother at least one day in each week. I have confidence in the evidence of all those I have named, including Ms. H at the crèche. Not one of them observed any aberrant behaviour.
Dr. A undertook a psycho-sexual assessment of the father. His evidence was that the father’s interest in pornography and the unverified allegations regarding the girl he babysat as an adolescent were significant historical findings, but neither those nor his substance use were particularly unusual among young adults. Cross-examined, he said that there was nothing (apart from the allegations made in these proceedings) indicative of paedophile tendencies.
I started this judgment by describing the mother’s about-face, revealed in final submissions. The court has no evidence of the basis for her present view, as distilled by her counsel, which is that she accepts that there is not an unacceptable risk of sexual abuse by the father. It is fair to assume that a woman as intelligent as the mother would have realised that Dr. S’s credit was comprehensively undermined during cross-examination and she may have reconsidered her own interpretation of some of the child’s behaviour, and Dr. S’s interpretation. However, the court is left with a body of evidence of observations of the child, which are indicative of a very disturbed child. That needs to be set against another body of evidence, indicative of a child who had difficulty in adapting to her parents’ separation, a difficulty reflected in a period of regressed and disturbed behaviour, which has now settled. How reconcile the happy, bright and developmentally normal child with the child waking screaming in the night from vaginal pain in April this year, who sexually interferes with a kitten and begs to be protected from her father?
Dr. M said she was sure that the mother believed that she had seen what she described to her. The mother’s concession (that there is no unacceptable risk) removes him as a potential perpetrator. Dr. A said that if the child had engaged in the behaviour with the kitten which was alleged, it would raise very serious concerns about the child’s socio-psychopathology. If that were the case, the court would be entitled to ask whether the cause of that pathology lay in the mother’s home or care.
Balancing all the evidence, I find it more probable than not that the observations described by the mother arose from a combination of factors. To maintain her relationship with Dr. S, and Dr. S’s support of her in these proceedings, she exaggerated and distorted observations to fit a scenario of sexual abuse. She attributed routine toddler tantrums and sleep disturbance to abusive behaviour. Having given up fulltime work to concentrate on her child, she analysed the child’s every word and movement, with an eye to a sinister explanation. She invested herself in the success of the litigation, success meaning she, A and the child could continue to operate as a unit, without the troublesome prospect of paternal involvement. Whether consciously or unconsciously, she sought to punish the father for his abandonment of her and her children, and the demolition of her dreams of an intact family.
I turn to the factors the court must consider when determining where the child’s best interests lie.

PRIMARY CONSIDERATIONS

When determining what is in a child’s best interests 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.
These are consistent with the objects set out in s.60B(1).

There is no doubt the child will benefit by having a meaningful relationship with both of her parents. Dr. A’s evidence is that her primary attachment is to her mother, which is unsurprising. When seen with the father in Dr. A’s rooms, she related well to him and to his mother. Dr. A reported that the father appeared to be attuned to the child’s needs and responded appropriately to them and at no stage was there any sign of fear or anxiety in the child’s responses to him.
It is now the mother’s case that the father poses no unacceptable risk to the child, sexually, physically or psychologically. It is the father’s submission that the child is at psychological risk in the mother’s care. It is put that her obsession with sexual abuse has already impacted adversely on the child, denying her a full relationship with her father and exposing her to repeated medical examinations and interviews. The father was not in a position to give evidence responsive to the mother’s changed case but it was his counsel’s submission that it was indicative of the mother’s manipulative style. It was put that continued residence with the mother would expose the child to the risk that her mother will continue to distort the child’s reality in order to undermine the father’s relationship with her.
Ms. R confirmed that in about December 2007 she told DHS she had no concerns about the father but thought the mother was an extremely manipulative person who she suspected had a borderline personality disorder.
In relation to her suspicion of a borderline personality disorder, Ms. R said that a clinician needs seven out of nine features to make that diagnosis, and she observed six. Amongst them were a threat of suicide (one threat was confirmed by the mother to her), some paranoia about the father’s fidelity, reported feelings of intense emptiness, an intense fear of abandonment and an attempt to enlist Ms. R and the father’s parents in achieving a reconciliation.
Dr. R was not engaged to conduct a clinical assessment of the mother and did not do so.
Dr. M’s evidence was that she had not done a psychological assessment of the mother and was not qualified to do so. She said on meeting her, she had no concerns about her mental health; she also said that she believed that Dr. S was “helping her with those concerns”. There is little to suggest that Dr. S’s professional interventions did anything to manage or ameliorate emotional or psychological problems the mother experienced after separation.
Dr. A undertook a psychiatric assessment of the mother. In his opinion there was no evidence of any current major psychiatric disorder nor any past history of a significant psychiatric disorder. While acknowledging he did not have the benefit of seeing the mother over a number of sessions, as Ms. R did, he said there were no obvious features of borderline personality disorder during his assessment. Dr. A reported that on the basis of his assessment, he did not believe that the mother was suffering from a psychiatric disorder that would substantially affect her capacity to parent her daughter. However, he said that position may need to be reviewed were the court to find there was no substance to the allegations of abuse. The court has made that finding. Further, the mother no longer seeks a finding of abuse or unacceptable risk of abuse.
In the witness box Dr. A swiftly conceded that if there were no substance in the allegations of abuse he would need to reconsider his recommendations and opinions; he said that a good deal turned on the allegations. One would need to ask why the mother had become so preoccupied with the possibility of abuse. Dr. A spoke of the psychological significance of the issues. Were the court to find no substance in the allegations, he posited three potential explanations or motivations. The first was of a circumscribed delusion, which is a psychological disorder. The second was an over-valued idea. The third was a more direct attempt to mislead.
Dr. A spoke of cases in which a therapist has formed a view about abuse which is not consistent with the evidence, in which the therapist joins the accusing person in a liaison. It is probable this is one such case and the influence of Dr. S on the mother should not be underestimated.
Dr. A confirmed that the child may well be very conscious of her mother’s tension, as even very young babies pick up the feeling and tone of conversations. He said young children can be very damaged by continuing conflict and an awareness of one parent’s emotional state may make it very difficult for a child to form an unbiased relationship with the other parent. It was his opinion that unless the mother could actively support and encourage a relationship between the child and her father, it was probable the child would continue to experience problems. It must be said that the then context was of the child “experiencing problems”, being the behaviour allegedly observed by the mother. But the evidence is equally relevant to the impact of parental conflict on the child.

ADDITIONAL CONSIDERATIONS

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

The child is too young to be asked about her views. It is her attachments which are important and I am satisfied she has secure attachments to both parents. As her mother has been her primary carer, and her father’s time with her has been limited as a result of these proceedings, it is unsurprising that her primary attachment is with her mother.

(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);

As found earlier, the child has a warm, affectionate and appropriate relationship with both her parents. Dr. A observed that the child appeared to have a good relationship with her father, with whom she shared warm interaction. She tolerated him leaving and returning and, in Dr. A’s assessment, the observations suggested a better relationship than that which would exist if they had had the remote or disinterested relationship prior to separation which the mother asserted.
While I heard no evidence from the maternal grandmother, there is no reason to doubt that she enjoys a good relationship with her granddaughter and the child referred to her, using the word Narni, in the course of the family reporting process.
I can find that the child has an excellent relationship with her paternal grandmother. The paternal grandmother’s joy in her granddaughter was apparent as she spoke of a happy, entertaining, beautiful and affectionate little girl. It is probable she also relates warmly to her paternal grandfather and to the father’s aunt, Ms. D.
The child’s relationship with A is important, despite the differences in their ages. He is loving and protective towards her and she has lived with him all her life.
Whilst the father acknowledged that the child’s relationship with A is important, his proposal that A could spend as much time at his home as A likes was impracticable, given the evidence of A’s views of the father, and the history since separation.

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

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

It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I am satisfied the mother has struggled with the notion of the father playing a significant role in their daughter’s life since separation. She has maintained her anger towards the father; the paternal grandmother spoke compellingly of her own vain attempts to make changeovers less stressful for the child and of the mother’s failure to respond to her greetings, despite the child’s presence.
The mother has looked after the child’s physical and general emotional needs very well but her distorted thinking must have impacted on the child to some extent. Nevertheless, the child is the happy, well developed little girl described by the paternal grandmother, Dr. A and Ms. H. As the mother has been the person most intimately involved in her upbringing, she must be given credit for that.
I am satisfied the father has tried to maximise his involvement with his daughter and has sought to be involved in her care and in decisions relating to her future. If the final orders made on 6 June, 2007 had been implemented, the father would have started to have overnight time with the child from her second birthday and that would have extended to Friday afternoon until Sunday afternoon in May 2008. Instead, this trial commenced in that month.
Two years of litigation have had a devastating impact on the father and his frustration is understandable. In particular, he may well find it very frustrating to be told that weight should be attached to the child’s primary attachment to her mother (a factor on which Dr. A placed considerable weight) as, from the father’s perspective, his attachment with the child may have been as strong had he been allowed to play the role he sought to play in her life since separation. Nevertheless, the focus of the court must be on the child’s best interests. That said, the mother’s attitude to the child’s relationship with her father is relevant and her failure to encourage it, and efforts to limit it, reflect adversely on her, and on her understanding of parental responsibility.
The father placed some reliance on the mother’s failure to encourage a meaningful relationship between A and his father; by analogy, it was suggested that she was keen to exclude him, in the same way. It must be said that the mother’s oral evidence about A’s time with his father was risible. There is no reason to doubt the mother’s evidence that Mr. DE was violent to her and that may be reflected in events since they separated. In October 2007 the mother filed an affidavit sworn by Mr. DE but, according to her, his whereabouts were unknown at the time of trial. A told Dr. A that “he only occasionally sees his father and last saw him over a year ago”. Ms. T reported that he told her (in March 2007) that he received two phone calls a year from his father and had not seen him for six years. The evidence does not allow the court to attribute responsibility for the remoteness of this relationship.

(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;

This is an important consideration. Dr. A spoke of the relevance of the child’s age and stage of development in the context of her mother having been her primary carer to date. Asked how important it was to retain that, he said it was very important. Her primary attachment is with her mother and in his opinion it would be potentially quite damaging to disrupt that relationship.
The orders proposed by the ICL and each of the parties would result in a significant change for the child. The ICL proposed the immediate move to alternate weekend time with the father, with the paternal grandmother present, albeit not in a supervisory role. In that period the father’s time would commence on Saturday morning and conclude on Sunday afternoon. For a further three months it would commence on Friday afternoon and conclude on Sunday afternoon, moving to Friday afternoon until Monday morning. In addition, the ICL proposed the immediate introduction of a day in the alternative week, from (say) 9:00 am. to 5:00 pm. at a time commensurate with the father’s work commitments.
The orders the mother proposed in respect of the time the father was to spend with the child were broadly consistent with this regime. I am confident that the child would accommodate that significant change if her mother were able to accommodate it, too. Dr. A’s evidence was that it would be a major challenge for the mother to actively encourage and support the child’s time with her father, and her relationship with her father. When with him he observed a very clear maternal conviction that the child had been abused and was at risk of further abuse; he described it as a fixed and strongly held view. His opinion was based on that expressed view. Within that context, he spoke of the need for the mother to engage in psychotherapy or other interventions to assist her in supporting the paternal relationship. She did not resist an order that she obtain such assistance.
I do not propose to summarise Dr. A’s recommendations in his report, save to say that he recommended a conservative approach which involved the introduction of overnight contact but continuing supervision, with the supervisor only leaving the room or being out of sight for short periods. As Dr. A readily conceded “if the history is unreliable, the assessment is challenged” and it is his oral evidence as to the way forward which is of most assistance.
The court has no actual evidence of the mother’s present view; it has the submission of her counsel, made on instructions. Those instructions are that the mother does not submit there is an unacceptable risk to the child in her father’s care. It is improbable the mother could have completely relinquished her concerns, given her presentation in the witness box. It would not be prudent for the court to act on the basis that she has. She still may have difficulty sending the child to spend time with her father but the court can infer that she has decided (whether as a result of intellectual analysis, a psychological shift or fear of losing the child’s residence) that the child’s relationship with her father must be supported.

It must be said that the husband’s proposals for the child’s residence with him were broad. He sought an immediate change in her residence but when asked to detail how that would occur, said “I leave it up to the court”. He said a slow change was preferable but as that was not practicable, there would need to be an instant changeover and the child should then see her mother as requested in his affidavit, with handovers at the crèche to minimise contact between them. He said he had made no arrangement to change his working hours but did have flexibility and could take immediate time off in the short term; asked about that he said that over the weekend he could make arrangements. He works 42 hours per week, some of it from home.
The child presently attends crèche on Tuesdays and Thursdays. The father said he would like that to continue but on two consecutive days. He had not spoken to the crèche about that. He would accommodate the balance of her weekday care by having his mother come from northern Victoria to stay at his home for “a block of time”; and she would continue to do that until the child was at primary school or kindergarten.
These arrangements were different to those proposed in his trial affidavit, sworn on 1 February, 2008. There he deposed to the child attending crèche while he was at work from approximately 8:30 am. to 5:30 pm. If the child needed care during work hours, he said he could work from home “for a limited time” and his mother and aunt would be available to assist if he was unable to take time off work.

(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;

The problems the parties face in this case do not relate to distance or money. It is the animosity between them and their inability to communicate which are likely to impact adversely on the child.

(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;

The evidence is that the parties agreed that the child would be raised in accordance with the Hindu religion and it was agreed she would not eat beef or pork. The mother complained that the child was given sausage rolls by her father; I accept his evidence that these did not contain beef or pork. He did not seek to renege on his commitment. Sharing the Hindu faith with her mother and other members of her mother’s family will enhance the child’s understanding of, and involvement in, their culture and traditions. When with her father’s family she will be able to experience another culture and its traditions. Save for the evidence relating to the sausage roll, there is no evidence that her diverse cultural background is a source of tension and the child is fortunate to have that rich heritage.

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

The allegations of sexual abuse have been dealt with in some detail. There was evidence about the father’s anger in the dying days of the relationship and after separation, evidence to which Ms. R and Dr. S adverted. There is no evidence of current intervention orders. Changeovers have been cold and tense. There have been some heated exchanges at changeovers and the husband agreed that he did raise his voice in the course of an argument just prior to Christmas 2007, at which the mother walked away. There are no other allegations of family violence which the court needs to take into account at this time.

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

It is vital that this litigation be determined. The child was fourteen months old when proceedings commenced. Although those proceedings resolved by final parenting orders made in June 2007, fresh proceedings issued within eight days. Her parents have been embroiled in litigation for 19 of her 33 months. It is trite to say that litigation imposes significant stress on parents and that that stress has the capacity to impact adversely on their children. The stress is exacerbated when the allegations are such as those which have been aired in this case.
(n)any other fact or circumstances that the court thinks is relevant;
I take into account the objects and principles set out in s.60B.

EQUAL SHARED PARENTAL RESPONSIBILITY

No party submits that the presumption of equal shared parental responsibility does not apply, or should be rebutted. Even when the mother sought that the father’s time with the child be supervised, at a contact centre, she sought an order for equal shared parental responsibility.
The presumption applying, the court must consider whether spending equal time with each parent would be in the child’s best interests. The primary submissions of neither parent nor the ICL supported a shared residence arrangement. The option was not put to Dr. A.
At the end of final submissions I sought that counsel obtain instructions as to the orders each party would seek in the event his or her primary application was unsuccessful. The responses of the parties in the courtroom suggested that neither had given much thought to this question and their instructions were thus given “on the run”. In essence, each advanced a shared residence regime.
For the mother it was put that she could not easily contemplate that scenario but that she would want the maximum time available during the week and on weekends. In broad terms, she would seek an equal sharing of time with the child.
If he were unsuccessful, the father proposed that in the first three out of each four consecutive weeks the child be with him for four nights (either Friday to Tuesday, or Thursday to Monday) and for one night in the fourth week. An order in those terms would have the child spending thirteen nights out of each twenty-eight with her father. Importantly, it would give her almost no weekend time with her mother or A.
The court should be cautious about making judgments about the father based on the orders he sought if unsuccessful in his primary application, given his apparent lack of prior consideration and the necessity to formulate a proposal swiftly, and in the courtroom. Nevertheless, the proposal he advanced could be viewed as being focused more on his convenience than the child’s. The child currently attends crèche on Tuesdays and Thursdays. The orders he proposed (whether her time with him started on Thursday afternoon or Friday afternoon) included no crèche time. Were those orders to be implemented, and the child continued to attend crèche as now, the result would be this. In three of each four weeks the child would go to her father on Friday afternoon and stay with him until Tuesday morning, when he would deliver her to crèche. She would be with her mother from the conclusion of crèche on Tuesday until the commencement of crèche on Thursday, and from the conclusion of crèche on Thursday until the afternoon on Friday. Were the father’s time to commence on Thursday evening, he would still have the child on days on which she did not attend crèche and for at least six of each eight weekend days in a four week cycle, assuming the single day with her in the fourth week was a week day.
The child has been at the crèche since she was some six months old and it is a known and familiar environment to her. The primary proposals advanced by each parent involved her maintaining crèche attendance. It is probable that it is in her interests to do so. It would not be in her interests for all crèche time to fall within the three days on which she lived with her mother and A, three out of four consecutive weeks.
The father’s proposals would mean that in three out of each four consecutive weeks the child would spend little time with A, seeing him after school and before school on only three days. She would rarely be able to be involved in weekend activities with him, and with her mother. On one analysis, this regime would have the mother providing the mid-week block of care which would be undertaken by the paternal grandmother in his primary proposal.
In his trial affidavit the father did refer to the potential for a shared residence regime but argued against it. At paragraph 106.24 he said that if the court decided a shared arrangement was in the child’s interests, he would prefer blocks of time so the child could become used to a routine. He deposed to being prepared to move closer to the mother’s residence to facilitate an order for equal time.
As the alternative proposals were not put to Dr. A, there is no expert evidence about their effect on the child. They would involve a number of changeovers but changeovers would be part of each of the primary proposals, too.
Dr. A’s evidence was that he would be surprised if a move to alternate weekends with her father would have a detrimental effect on the child, observing that the grandmother’s involvement “would be good for everyone”. He said that the parties could move to include increased nights, although he would prefer that that be done by agreement. He said that such an increase often leads to a period of brief distress in children of this child’s age. A parent needs to reassure the child that she is not forgotten and is supported. Asked about a timeframe, Dr. A said that an increased weekend could be introduced “fairly quickly”, by which he meant weeks and months, rather than months and years.
Dr. A was candid about the challenges he saw the mother as facing and about the concerns which would be raised, were the court to find that she had distorted or invented the allegations. Notwithstanding that, in his expert opinion, a change of residence was not in the child’s best interests. He said he would have difficulty with a change of residence, given the primary attachment the child has to her mother, and said that disruption of that attachment would have negative ramifications.
At one point Dr. A was asked which was the lesser evil for the child; the potential loss of a relationship with her father or the damage done to her by removing her from her mother. His response was that it was a very difficult question. But he did not move to supporting a change of residence.
At this time, I am not convinced that the question put to Dr. A is the right question. It is the father’s submission that he will be unable to maintain a meaningful relationship if the child continues to live with her mother but I am not persuaded that is necessarily so.
The mother has generally complied with the interim orders, notwithstanding objection to supervision by the grandmother and her belief that the child continued to be abused. There is no reason to doubt her then acceptance of Dr. S’s graphic scenarios of abuse, illustrated in her report, but she delivered the child as required. She may have done it unwillingly and with poor grace. She may have presented as cold and angry at changeovers. Nevertheless, the child has seen her father and has maintained her relationship with him.
Balancing all the evidence I am not satisfied that the child’s residence should be changed so that she lives with her father and spends only some four nights a fortnight with her mother and brother, during school terms. Nor am I satisfied that a shared residence arrangement (however structured) is in her best interests.
The potential harm to the child of removing her from her primary attachment figure at this stage outweighs, in my judgment, the risk that to continue living with her mother will result in her not having a meaningful relationship with her father.
If the court finds that it is not in the child’s best interests to spend equal time with both parents, it must consider whether it is in her best interests and reasonably practicable to spend substantial and significant time with each parent. Substantial and significant time is defined as including days that fall on weekends and holidays, and days that do not, and which allows the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and to the parent (s.65DA(3)).
I am satisfied that the child should spend significant and substantial time with her father, while remaining primarily in her mother’s care. If the father could restructure work commitments to have the child’s fulltime care, he must be able to restructure them to accommodate some time with the child during the week, as well as weekends. That would be to the child’s benefit.
The court can assume that the father believed the time he proposed the mother have with the child (were the child to live with him) would be sufficient to ensure the child maintained a meaningful relationship with her mother. That regime provided for an overnight stay in each alternate week and for half school holidays. I am satisfied weekend overnight time should be implemented immediately; the child has been seeing her father on both days of each alternate weekends, albeit not overnight. A second night (Friday) and a third (Monday) will be phased in, as recommended by Dr. A and supported by the ICL. A night in the alternate week will also be phased in. School holiday time will be phased in more slowly but will result in the father having half of each school holiday period with the child in due course.
The father sought that the mother’s time with the child be suspended from Good Friday to Easter Monday and on Christmas Day in each year, presumably on the basis that the mother does not follow the Christian faith. He sought an order the child spend time with the mother on unspecified “days of religious observance and celebration within the Hindu religion”. As one scholar of Hinduism has listed more than a thousand different Hindu festivals (see Oxford Concise Dictionary of World Religions, John Bowker, ed: Oxford University Press, 2000, p.193), an order in those terms is likely to lead to problems.
While Easter and Christmas holidays have their origins in Christianity and remain days of profound spiritual significance to practising Christians, in our society they are widely celebrated by non-practising Christians and those who profess no faith, or another faith. Folklore (Easter eggs, Father Christmas, etc.) and commercial adoption mean these days are seen as family holiday times by believers and non-believers. The child should be able to share that broad communal excitement with her mother, as well as her father.
The 2006 Census of Population and Housing reported that 64% of the population professed to be Christians and 0.7% to be Hindus; see ABS 2006 Census. So called Christian values tend to be publicly espoused in Parliament, courts and other institutions; the child will inevitably be exposed to them outside the homes in which she lives. She will not have the same exposure to Hindu values unless action is taken to achieve this. For this reason it is important she share significant festivals with her mother and her mother’s family, and the Hindu community.
Orders will allow the parties a period in which to agree on the times the child should be with her mother in order to enhance her understanding of and involvement in the Hindu faith. A default provision will operate if they cannot agree and there will be provision for make-up time if the child’s involvement with ritual and celebration impacts on the father’s time with her.
Orders will be framed to provide that the child lives with her father at specified times and with her mother at all other times. This emphasises the importance of the child’s relationship with both of her parents.
The mother should be left in no doubt about the consequences of non-compliance with orders which provide for the father to live with the child or of conduct by her which is likely to impact negatively on the child’s relationship with her father. Were the court to find the father’s submission well based (that is, that the mother is unable to support the child’s relationship with him, so long as the child lives with her) the court could then find that the balance has shifted and the harm of severing that primary attachment would be the lesser evil.
I do not propose to require the mother to seek further treatment or that the child attend for psychotherapy or any other form of intervention. I do not doubt the mother would be assisted by constructive psychological help and would encourage her to consider it. However, the orders are not conditional on it.
The parents will have equal shared parental responsibility for the child. If they believe she will be assisted by some therapeutic intervention, they can agree on it. There is force in the submission of the ICL that the evidence before the court does not establish the necessity for an order for it.
I do propose to restrain the mother from using a name other than Dupleix for the child. The father’s evidence was of her referring to her as Duroc at the cardiologist on 16 January, 2008. While neither party made much of this aspect of the father’s application, an order now may limit the potential for further proceedings. A carries his father’s surname and his relationship with his mother is strong. There is no evidence on which the court could find the child’s best interests require the use of a name other than Dupleix, whether occasionally or permanently.
The father sought an injunction restraining both parties from taking the child out of Australia without the consent of the other. An order in those terms cannot be enforced by the Australian Federal Police or those who are responsible for international points of departure. The only effective order is one which restrains removal without order of the court. If the parties agree that the child can travel, a simple minute of a consent order can be presented to a registrar, and the order made. That would not require legal representation and could be achieved swiftly. Anything less would not afford the protection each party may seek.

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

Dated the day of 2008.

…………………………………………
Associate.

[2008] FamCA 626

8 August 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies