Eastley & Eastley

[2021] FedCFamC1F 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

Eastley & Eastley [2021] FedCFamC1F 212

File number(s):	CAC 1729 of 2020
Judgment of:	GILL J
Date of judgment:	19 November 2021
Catchwords:	FAMILY LAW – CHILDREN – RISK – Allegations of sexual abuse – Consideration of causes of child’s presentation – Risk of sexual harm – Other risk of harm connected to future interaction between child and parent – Unidentified trauma – Exposure to mother’s distress – Consideration of explanations for father’s conduct – Allegations of specific incidents of sexual harm to the children – Whether father’s conduct explained by deviance or overly permissive boundaries – Prospect the father’s behaviour was the product of deviance – Risk of harm from exposure to the father – Unacceptable risk – Children to spend no time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA
Cases cited:	A v A (1998) FLC 92-800 Bant & Clayton (2019) FLC 93-924 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Marsden & Winch (No 3) [2007] FamCA 1364 Moose & Moose (2008) FLC 93-375 M v M (1988) 166 CLR 69 N & S (1996) FLC 92-655 Phillips & Hansford (No 2) (2019) FLC 93-917 Sahrawi & Hadrami (2018) FLC 93-857 U v U (2002) 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	279
Date of hearing:	29–31 March 2021, 1 April 2021, 6–7 April 2021 and 3 May 2021
Place:	Canberra
Counsel for the Applicant:	Ms Christie, SC
Solicitor for the Applicant:	Dobinson Davey Clifford Simpson
Counsel for the Respondent:	Ms Smallwood, SC
Counsel for the Respondent:	Ms Davis
Solicitor for the Respondent:	Alliance Legal Services
Solicitor for the Independent Children's Lawyer:	Legal Aid, ACT

ORDERS

CAC 1729 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS EASTLEY

Applicant

AND:

MR EASTLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	GILL J
DATE OF ORDER:	19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.All previous child-related orders are discharged.

2.The mother have sole parental responsibility for X, born … 2017 and Y, born … 2019 (“the children”).

3.The children live with the mother.

4.The children spend no time and have no communication with the father.

5.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father be restrained from approaching or contacting the children until they reach the age of 18 years.

6.The laptop containing the two-minute video of the father bathing the child, referred to at paragraphs 17 to 22 of the mother’s affidavit filed on 23 February 2021 (the “Bath Video”) is to be returned to the AFP upon the expiration of the relevant appeal period, at which time the Manager Court Services will arrange for an officer of the AFP to collect the material from the Registry.

7.Pending the collection of the laptop, no person is to access or uplift the video without the leave of a Judge or Registrar of Division 1 of the Federal Circuit and Family Court of Australia.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

GILL J

INTRODUCTION

1. These proceedings between the applicant mother, Ms Eastley, and the respondent father, Mr Eastley, concern the parenting arrangements for their children, X (born in 2017) and Y (born in 2019).  While it was common between the parties that the mother should retain her role as the primary carer, and that the children should live with her, the parties were at odds over whether it is in either child’s best interest to have an ongoing relationship with the father of any sort.  Their key dispute concerned the issue of whether the father presents an unacceptable risk of harm to the children, an issue centred on questions of whether the father is a risk of sexual harm, and, regardless of findings as to sexual risk, whether X will be at risk due to fear and trauma in the event that he spends time with the father.

   General background

2. The parties commenced living together in 2011 and were married in 2013, finally separating in July 2020.  Prior to their separation the mother was the primary carer for the children, the parties disputing the degree to which the father was involved in the care of the children.

3. The mother formed the view, at about the time of separation, that the father had sexually abused X.  The mother made contact with the local welfare department (CYPS) and the Australian Federal Police (AFP).  She took X for examination at the G Health Service (GHS). 

4. The father denies sexually abusing the children.

5. Since separation the children have lived with the mother, with X spending no time with the father other than during the assessment process with the single expert on 27 November 2020.

6. While initially Y spent no time with the father, she has since spent time with him between 7 December 2020 and 22 January 2021 pursuant to court orders, conducted with the assistance of a professional supervisor, until that supervisor brought the visits to an end on the basis that she reported that the father had an apparent erection during one of the periods of time that he spent with Y.  The father denies having an erection, asserting that the supervisor was mistaken by virtue of the nature of the clothing that he was wearing.

7. Since then, the father has spent no time with Y.

   The central factual issues

8. The issues central to the resolution of the case revolve around questions of risk posed by the father and the benefits of meaningful relationship with the father.  To those ends, the factual matters that were predominantly focussed upon at the trial were as follows:

   (a)X’s presentation, commencing at or about the time of separation, his regression, and his presentation when assessed by the single expert in the presence of the father.  The key issues flowing from X’s presentation relate to whether X has been traumatised and, if so, what the source of the trauma is.  In particular, the parties focused on whether it is explained by X suffering trauma at the hands of the father, or whether his abrupt separation from the father and his exposure to the mother’s (and other’s) fears explain it (the emotional contagion explanation);

   (b)The physical examination of X and whether the evidence produced from the examination points toward a conclusion that X has been sexually abused;

   (c)A video recording taken shortly after X was born in which the father massaged X’s testicles;

   (d)Evidence from the maternal grandmother that she observed the father, when changing Y’s nappy, to massage her mons pubis region;

   (e)Evidence as to whether the father, during a period of supervised time with Y, had and maintained an erection, and the significance of the explanation that he has given for this evidence; and

   (f)Consideration of the parenting capacity of the father and, in particular, whether he lacks insight into appropriate interactions with the children.

9. Whilst the above list does not cover all of the ground traversed by the parties at trial, these matters represent those that the parties ultimately treated as determinative of what orders will be in X and Y’s best interests.  Although some emphasis was placed upon allegations of family violence made against the father in the evidence, and in the cross-examination, ultimately the mother did not prosecute those issues in support of the orders that she seeks.

   MATERIAL RELIED UPON

10. The mother relied upon the following material:

    (a)Affidavit of Ms L filed 22 February 2021;

    (b)Affidavit of Ms N filed 22 February 2021;

    (c)Affidavit of Mr O filed 22 February 2021;

    (d)Affidavit of Ms Eastley filed 23 February 2021;

    (e)Affidavit of Mr EE, filed 17 March 2021;

    (f)Affidavit of Ms Eastley filed 17 March 2021;

    (g)Affidavit of Mr C filed 1 February 2021; and

    (h)Case Outline Document and Minute of Orders Sought dated 26 March 2021.

11. The father relied upon the following material:

    (a)Initiating Application filed 7 August 2020;

    (b)Affidavit of Mr Eastley filed 9 March 2021;

    (c)Tender Bundle/Exhibit to Affidavit of Mr Eastley;

    (d)Affidavit of Mr M filed 9 March 2021;

    (e)Affidavit of Mr Q filed 9 March 2021;

    (f)Affidavit of Mr P filed 9 March 2021;

    (g)Affidavit of Mr S filed 10 March 2021; and

    (h)Case Outline Document filed 26 March 2021.

12. Aside from the material relied upon by the parties, the Independent Children’s Lawyer (“ICL”) tendered a report dated 24 March 2021 (Exhibit ICL 1) and called evidence from Dr K, who was engaged as an adversarial expert by the father on the issue of whether the father presented a sexual risk, but was not called by him.  The ICL also relied upon an affidavit of Ms R (the supervisor) filed 3 March 2021.

13. Two tender bundles were also prepared by the parties, titled the “Joint Tender Bundle” and the “Subpoena and s 69ZW Material”.  Throughout these reasons, these are referred to as the “Tender Bundle” and “Subpoena Bundle” respectively.  Numerous extracts from both bundles were exhibited in the proceedings.

    ORDERS SOUGHT

14. The orders as sought by the parties are provided in full at the end of this judgment.

15. The mother sought sole parental responsibility for the children, for the children to live with her and for there to be no order permitting time or communication between the father and the children.  Additionally, the mother sought an order restraining the father from approaching the children.

16. Whilst the father supported an order that the children live with the mother, the father sought equal/shared parental responsibility for major long-term issues in relation to the children.  The father also sought an order requiring the parties to engage a family therapist to facilitate the resumption of a relationship between X and the father, and establish effective co-parenting strategies.  The father sought a series of orders facilitating the resumption of the relationships between the children and the father, commencing with hourly time with the children each week in the presence of the family therapist for four weeks and eventually (over a series of graduated steps) building to overnight, weekend and holiday time.  During submissions, the father excised proposed Order 6(b) which provided for one of these steps to include periods of supervised time with a specified list of friends and family members.  Due to the evidence led at trial such an order was acknowledged to be of limited utility.[1]  The father also sought time with the children on special occasions.  The father sought that the parent without care of the children would have video or phone time with the children each evening.  The father’s proposed orders also included a number of practical mechanisms relating to changeover, communication and information sharing between the parents, schools and treating professionals, fees for childcare, non-denigration orders, an order preventing either party discussing the proceedings with the children and an order that the father return the children to the mother’s care if they became distressed and he was unable to settle them.  The father sought an order that the father undertake a Circle of Security parenting course.  The father also sought the discharge of all previous parenting orders.

    [1] Transcript 3 May 2021, p. 897 lines 20–23.

17. The ICL filed a Minute of Orders on 30 April 2021, following the conclusion of the evidence.  The ICL’s position substantially reflected the orders sought by the mother, being that the mother have sole parental responsibility for the children and that the children live with her.  The ICL supported an order that the children spend no time with and have no communication with the father.  In addition, the ICL sought orders that at least once per month the mother provide email communication to the father with details about the children’s wellbeing and that the mother ensure X engage in relevant therapeutic interventions recommended by his treating practitioners.

    PRINCIPLES

    General approach to parenting orders

18. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court’s paramount consideration in determining whether a parenting order should be made is the best interests of a child.

19. This is to be determined by having regard to the considerations set out in s 60CC of the Act, to the extent that they arise in the case, in light of the objects and principles set out in s 60B, and the reasoning process set out in s 65DAA.

20. The considerations are divided into primary and additional considerations.

21. The primary considerations firstly focus on the benefit to the child of a meaningful relationship with both parents,[2] and secondly on the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[3] However, s 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, namely, protecting the child from abuse, neglect or family violence.

    [2] Family Law Act 1975 (Cth) s 60CC(2)(a).

    [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

22. In Phillips & Hansford (No 2), Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[4]  Instead, only the matters that are “in issue in the proceedings require detailed consideration”.[5]  Accordingly, the matters focussed upon by the parties are those that attract detailed consideration in this case.

    [4] Phillips & Hansford (No 2) (2019) FLC 93-917, [43].

    [5] Phillips & Hansford (No 2) (2019) FLC 93-917, [43].

23. As noted above the key issue between the parties relates to whether the father presents an unacceptable risk of harm to the children.  In pursuing their cases as to what is in the children’s best interests the parties focussed upon the primary considerations as they relate to protecting the children from abuse or harm, from the related issue of potential harm being occasioned by exposure to the father even absent abuse, and in securing for the children benefits that may be derived from meaningful relationship with the father. 

24. Whilst a number of the additional considerations, such as the characteristics of the child and parental capacity are also engaged, they were sensibly treated as subsumed into the issues of risk and benefits of meaningful relationship, which were in turn treated as the determinative of best interests.  This approach of the parties properly reflected the issues between them and the evidence that was led in each case.

    Legal approach to risk

25. In this case a central issue is one of the risk of harm that may be occasioned to the children should they spend time with the father. It necessarily involves a consideration of the potential for future events to impact upon each of the children. As noted above, risk of harm forms one of the primary considerations in s 60CC. It is a consideration of:

    The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[6]

    [6] Family Law Act 1975 (Cth) s 60CC(2)(b).

26. Inevitably, the consideration of future risk involves allegations or assertions as to what has occurred in the past and an accompanying assessment of their significance for the future.

27. The general approach in dealing with allegations is set out by the Full Court in Sahrawi & Hadrami where Ryan and Aldridge JJ stated:

    It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard.[7]

    [7] Sahrawi & Hadrami (2018) FLC 93-857, [39].

28. However, where the issue of whether a child faces an unacceptable risk arises, cases such as M v M establish that the Court is not restricted to the consideration of those past events that have been established by the party asserting the historical fact.[8]  While Part VII proceedings concerning children might be characterised as “civil in nature”,[9] they are not “disputes inter partes … the court is not enforcing a parental right of custody or right to access”.[10]  The Court’s concern, rather, is to discharge its obligation to make orders that are in the best interests of the children concerned rather than to vindicate the underlying factual contest between parties as though it were a commercial dispute.

    [8] M v M (1988) 166 CLR 69.

    [9] Fitzwater v Fitzwater (2019) 60 Fam LR 212, 232 [134] (Austin J).

    [10] M v M (1988) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

29. In N & S, Fogarty J said:

    Cases of alleged sexual abuse often add a unique difficulty to the judicial function. While the assessment of future possibilities and risks is a familiar component of the judicial role in cases involving the welfare of children, it differs in many cases of sexual abuse to the extent that the possibilities being examined are not future possibilities whose evaluation derives from a known factual basis, but possibilities which relate to an unestablished series of facts.[11]

    [11] N & S (1996) FLC 92-655, 82,712.

30. Further, his Honour said “[t]here is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases”.[12]

    [12] N & S (1996) FLC 92-655, 82,715.

31. In A v A, Fogarty, Kay and Brown JJ said “[t]he whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes ‘an unacceptable risk’”.[13]

    [13] A v A (1998) FLC 92-800, 84,995.

32. Thus, the Court must reach the overarching conclusion of unacceptable risk on the balance of probabilities.

33. Ultimately, “[t]he court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child”.[14]  It is a process where “each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests”,[15] although ultimately the Court is not bound by the proposals of the parties, and, provided the parties are given procedural fairness, may forge an outcome at variance with those put by the parties where it determines such is in the best interests of the children.[16]

    [14] M v M (1988) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

    [15] Fitzwater v Fitzwater (2019) 60 Fam LR 212, 232 [134] (Austin J).

    [16] U v U (2002) 211 CLR 238, 260 [80] (Gummow and Callinan JJ), 284–5 [171] (Hayne J).

    Approach to the benefits of meaningful relationship

34. As noted above, the primary considerations include the assessment of the benefits of meaningful relationship at s 60CC(2)(a), which provides for the consideration of:

    The benefit to the child of having a meaningful relationship with both of the child’s parents.

35. It is important to recognise that what is being assessed is the impact of the relationship with the parent upon the child.  It is a consideration that is about the effects on the child.  It is not reliant upon a presumptive benefit of relationship with a parent, but is contingent upon the evidence supporting, either directly or indirectly, the benefits accruing, or available to accrue to the child from relationship.

1. It is also the case that the enquiry is directed to a relationship with a parent that is meaningful.  The task of the Court, as directed by the legislation, is “to promote a meaningful relationship, not an optimal relationship”.[17]

   [17] Moose & Moose (2008) FLC 93-375, [70] (Boland J), citing Godfrey & Sanders (2007) 208 FLR 287, 298 [36] (Kay J).

2. However, it is not presumed that the relationship a child has with their parents will be meaningful.  As observed by Warnick and Thackray JJ in Marsden & Winch (No 3):

   whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[18]

   [18] Marsden & Winch (No 3) [2007] FamCA 1364 [77].

3. In considering such benefits, it is naturally the case that a number of the additional considerations will be engaged, such as the nature of the relationships between the child and the parent, and the capacity of the parent to provide for the needs of the child, including emotional and intellectual needs.

4. It may also be observed that issues of risk of harm and benefits of meaningful relationship cannot necessarily be considered separately from one another.  This was recognised in M v M where the High Court described the weighing process in the following way:

   In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[19]

   [19] M v M (1988) 166 CLR 69, 78 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

5. Further, the circumstances of a particular case may, and often will mean that particular risks of harm undermine the benefits that may be available to the particular child, for example where the risk is connected to trauma being occasioned by the mere exposure to a parent, it might be considered that other benefits are weakened or undermined by such a feature of the relationship.

   FACTORS SPEAKING TO RISK OF HARM AND BENEFITS OF MEANINGFUL RELATIONSHIP

6. The parties and the ICL relied heavily upon three aspects of the evidence to address the considerations of risk and benefits of meaningful relationship:

   (a)Specific allegations that the father:

   (i)Massaged X’s testicles;

   (ii)Rubbed Y’s mons pubis;

   (iii)Acted and made comments toward the children in a sexualised manner;

   (iv)Experienced an erection at a children’s waterpark whilst spending time with Y;

   (b)Events leading up to and following separation where X exhibited distress in relation to the father;

   (c)Expert opinion evidence as to:

   (i)Potential anal injury to X;

   (ii)Assessment of the father as to:

   1.Sexual risk;

   2.His parenting capacity; and

   3.The significance of X’s traumatised presentation.

7. While a major criticism of the mother’s case made by the father was that it lacked a specific allegation as to what the father was alleged to have done that marked him out as an unacceptable risk, it may be observed that there were a number of specific allegations.  It may be accepted that the mother’s case was otherwise heavily reliant upon inferences rather than specific occurrences.

   SPECIFIC ALLEGATIONS

   Massage of X’s testicles (the bath incident)

8. Although the significance of this incident is contested, its occurrence is not.  Post separation the mother says that she came upon a video recording that she had made shortly after X was born, wherein she recorded the father bathing X.  The video was produced to the Court and became Exhibit C3.

9. The salient aspect of the video is that it shows the father massaging X’s testicles, while commenting “You love that, don’t you?”.[20]  Although the mother may, at the time, be heard laughing, she explains that she was incredibly tired in the context of having a newborn.  She says that she had forgotten the incident and video until she stumbled upon it.  The father accepts that not only did he engage in the conduct shown on the video, but that it had also occurred on other occasions.

   [20] Transcript 31 March 2021, p. 280 line 14.

10. The father denies that this was for the purpose of sexual gratification, or that it constituted grooming of X.

11. The significance of this incident was a matter dealt with by Dr K and the single expert, Mr C, and their comments are set out below.

    Rubbing Y’s mons pubis

12. The maternal grandmother alleges an incident where the father was changing Y’s nappy on 11 July 2020 and called the maternal grandmother into the room, to show how he changed the nappy.  She describes that prior to closing the nappy the father placed the heel of his hand onto the mons pubis moving his “palm side to side” saying “she likes it”.[21]

    [21] Affidavit of Ms L filed 16 November 2020, paragraph 7.

13. The father, accepting that he may have changed Y’s nappy on that occasion, and that the maternal grandmother may have also been present, denied that he acted in the manner described.  He accepted that he may have tickled Y on her legs, stomach or tummy to try to make her laugh.  He said that he often did this, and accepted that his hands would have been close to her vagina, and may have moved from side to side in the course of the tickling.  He denied any sexual abuse or sexual gratification.

14. There is some contention as to how this allegation was first raised.  The father says that he first became aware of it in November 2020 when it appeared in the maternal grandmother’s affidavit.  The maternal grandmother says that, although after a few days she had asked the mother if she had seen how the father changed Y’s nappy, to which the mother had replied that he hardly ever did, that she did not specifically raise the rubbing of the mons pubis with the mother until after the events of 27 July 2020.

15. The mother described that she was not told of the incident by her mother until “[s]ometime after separation”.[22] 

    [22] Affidavit of the mother filed 23 February 2021, paragraph 311.

16. However, on 27 July 2020 the mother raised the father’s manner of changing Y’s nappy with the childcare centre worker, Ms E.

17. In her consolidated trial affidavit the mother raised for the first time her own critique of the father’s nappy changing of Y, alleging that he moved his hand from side to side rather than up and down while cleaning Y.[23]  She asserts that this must have been what she was telling Ms E about, given her lack of awareness of her mother’s claim at that point.

    [23] Affidavit of the mother filed 23 February 2021, paragraph 401.

18. This explanation is also problematic as it appears that the mother was raising sexual abuse issues with Ms E, based in part upon an observation by her that is not raised otherwise until the trial affidavit.

19. The questions that arise are as to why, if the mother was concerned about the manner of the father’s conduct in changing Y’s nappy in the context of sexual abuse concerns that she did not raise it (other than with Ms E) until the trial affidavit, or whether the explanation in the trial affidavit is a late invention to explain her comments to Ms E at a time before she says that she was aware of her mother’s observations.

20. However, perhaps little turns on the issue where it can be seen that by the time of the attendance upon GHS later that day she was aware of her mother’s allegation.[24]

    [24] Transcript 31 March 2021, p. 384 lines 14–41; Exhibit F15, p. 11.

21. The potential significance of this incident is commented upon by Dr K and Mr C below.

    Sexualised conduct toward the children

22. The mother asserts that the father acted in a sexualised manner toward the children.  While the father denies any sexual intent or motivation, he accepts that he made particular comments to or in the presence of the children, and that he would kiss the children on the lips.

23. The parties agreed that the father said in the presence of one or other of the children:[25]

    (a)That X had “luscious lips”;

    (b)That Y would be a “kiss hussy” when she grew up;

    (c)That when Y had kissed the father that “she closed her eyes and really went for it”;

    (d)That X would need to give the father a kiss or a hug before he could have a snack or watch television;

    (e)That “mummy hasn’t had a dick in her face for a while”;

    (f)Miming both masturbation and throwing “cum” onto the mother’s face when she had attended a facial treatment at a day spa; and

    (g)That X “has a tight little arse”, and “daddy loves a tight arse”.

    [25] Affidavit of the mother filed 23 February 2021, paragraphs 42, 395–400; affidavit of the father filed 9 March 2021, paragraphs 50–51, 155(e), 155(g), 311–319.

24. The significance of these matters was addressed in the evidence of Mr C and Dr K.

    Erection

25. Orders were made on 1 December 2020 providing for supervised time between the father and Y.  The orders required the father to fund supervision by either B Contact Centre or D Contact Centre, with such supervised time to occur from 9:00 am to 11:00 am each Tuesday, Thursday and Saturday.  The parties were at liberty to vary these times and the frequency of supervised visits by agreement in writing.

26. While there was some contention between the parties as to the visits and conduct of the handover arrangements, the matter of central significance was the circumstances of their termination.

27. The visits began on 7 December 2020, with supervision provided by D Contact Centre.  The father had 20 visits with Y between that date and 22 January 2021, at which point the visits were terminated due to the concerns raised by the supervisor, Ms R.    

28. Ms R’s affidavit of 3 March 2021 provides a report detailing each of the visits between the father and Y which she supervised.[26]  The visits, taking place at various locations including parks, playgrounds and the local zoo, occurred on:

    [26] Affidavit of R filed 3 March 2021, Annexure B, pp. 7–31.

    (a)7 December 2020;

    (b)9 December 2020;

    (c)12 December 2020;

    (d)14 December 2020;

    (e)16 December 2020;

    (f)19 December 2020;

    (g)21 December 2020;

    (h)23 December 2020;

    (i)28 December 2020;

    (j)30 December 2020;

    (k)2 January 2021;

    (l)4 January 2021;

    (m)6 January 2021;

    (n)9 January 2021;

    (o)11 January 2021;

    (p)13 January 2021;

    (q)16 January 2021;

    (r)18 January 2021;

    (s)20 January 2021; and

    (t)22 January 2021.

29. The visits on 21 December and 23 December were not supervised by Ms R, but were attended by a replacement supervisor.

30. The 22 January 2021 supervised visit is described by the father and Ms R in a generally similar manner, although the father denies having an erection as described by Ms R.  This visit was dealt with in detail during the trial.

31. That visit took place at a park with a café, water play area and miniature railway.  The father met Ms R and Y at around 9:00 am at the café.  As Y was wearing long pants, the father changed her into shorts so that she could play in the water.  They then proceeded to the water play area at 9:10 am.  At 9:17 am, some other adults and children arrived at the water play area.  The father recalls talking to another woman to his left while Ms R stood to his right.  Several children were playing in the water.  Ms R recalls that the father made a remark to the adults about the children wearing swimmers, suggesting he had not seen children wearing swimmers at the water play area before.  One of the adults said they had been at the park the previous Saturday.  The father said they were there too but did not see them.  The father recalls that he remarked to Ms R that he should bring swimmers for Y next time.  The father then took Y to a play area described as the musical bridge, before returning to the water play area. 

32. It was at this point, between 20–30 minutes into the supervised contact visit either while talking to the other adults or when the father and Y returned from the musical bridge, that Ms R observed that the father had an erection.[27]  Ms R described the father as appearing “highly aroused”.[28]  Ms R observed that the father “did not adjust himself or attempt to hide the erection”.[29]  The father then took Y on the miniature train.  Ms R stated that the erection was not visible whilst the father was seated on the train, and that by the end of the train ride it was still visible but had become smaller.  Ms R observed that it remained the same until the end of the visit at 11:00 am, then “assuming that it had gone away completely”.[30] Ms R also observed that there were no inappropriate interactions between the father and Y, and that on the train Y had not sat on the father’s lap.

    [27] Transcript 6 April 2021, p. 615 lines 16–25; p. 626 lines 5–15.

    [28] Transcript 6 April 2021, p. 624 lines 1–12.

    [29] Affidavit of R filed 3 March 2021, p. 31.

    [30] Affidavit of R filed 3 March 2021, p. 31.

33. Ms R stated that she did not discuss the incident with the father or bring the visit to an end as it would not be appropriate to discuss in front of Y.  Ms R subsequently reported the incident to CYPS, stating that

    I’m pretty sure the Father’s erection was in response to the other children at the water playground, as he was spending a lot of time looking at those children who were wearing swimmers. I don’t think he was anywhere near Y when he got an erection, so it didn’t appear to be in response to his own child.[31]

    [31] Exhibit M9, p. 678–679.

34. Although questioned in oral evidence about whether the supervised visit should have been brought to an end upon observing the father’s erection or whether she was mistaken in what she saw, Ms R was certain that she observed an erection and that she was mandated to make a report about what she saw.[32] 

    [32] Transcript 6 April 2021, p. 624, 627–628.

35. The father contended that what was observed by Ms R was not an erection but rather the misleading impression given of one by virtue of the particular shorts that he was wearing.  In order to counter the evidence of Ms R the father adduced evidence of a subsequent photo shoot at the water park.  The father explained that the impression was caused by him wearing Nike Dri Fit running shorts with an internal lining that had become wet, causing them to cling to his crotch area.

36. Before turning to the photo shoot some attention should be given to the emergence of the shorts explanation by the father.

37. The father said that he became aware on 25 January 2021 that Ms R was alleging that he had become sexually aroused at the visit on 22 January 2021, as he was advised of such by his solicitor.  He said that it was at this point that he realised that the explanation for the apparent erection was the shorts that he had been wearing.  This explanation was not proffered to the other parties at that stage however, as it was determined on legal advice that the explanation should wait until a report was obtained by Ms R.  That report was obtained on 12 February 2021. 

38. On 24 February 2021 the father returned to the play area with his solicitor in order to have photographs taken wearing the same shorts, in the same locations, taken from different angles.  A number of photos were tendered into evidence.  He contended that, although not aroused at the time of the photos that there was an apparent bulge near his crotch, that would have been even more apparent on 22 January 2021 given that the shorts were then also wet.

39. By this stage the potential responsibility of the shorts to explain Ms R’s observations had been discussed between the father and his friend Mr P, Mr P observing that the shorts that the father was wearing on a subsequent occasion gave the appearance of an erection.[33]

    [33] Affidavit of Mr P filed 9 March 2021, paragraph 31.

40. However, when shown the re-enactment photos, Ms R was adamant that the photos were “similar” to what she saw but at the visit the visible bulge was “bigger”.[34] 

    [34] Transcript 6 April 2021, p. 636, lines 1–19.

41. The significance of this evidence is dealt with in the evidence of Dr K and Mr C below.

    THE EVENTS LEADING UP TO AND FOLLOWING SEPARATION

42. Significant emphasis was placed by each party upon the circumstances that immediately surrounded separation on 27 July 2020.  While the mother relied upon them to establish risk, for the father the circumstances were emphasised on the basis that they inform the proper understanding of X’s presentation and apparent distress, as an explanation alternate to X having been exposed to abuse by the father.  Those incidents of the greatest significance are set out below.

    Sunday 26 July 2020 – the swimming incident

43. The mother described having, on this morning, gotten up with the children.  She says that when the father awoke, he said to X words to the effect “Daddy came and fixed your covers last night because Mummy hadn’t done it properly”.[35]

    [35] Affidavit of the mother filed 23 February 2021, paragraph 24.

44. The children were due to have swimming lessons that morning and the mother was to take Y to her lesson, with X to stay at home with the father and then be taken swimming by the father.  The mother described that X became extremely distressed as the mother prepared to leave with Y, screaming in a manner and exhibiting greater distress and desperation to be with her than she had previously seen.  She regarded his actions as being more than a tantrum.

45. Accordingly, the mother returned inside to the home to comfort X and the parents determined that they would go together to the swimming.  The mother described that X refused to allow the father to dress him.  The mother describes that the father then described to X that he was “undisciplined”.[36]

    [36] Affidavit of the mother filed 23 February 2021, paragraph 29.

46. The mother described that X remained somewhat distressed in the car, although not to the same level.  Following arrival at the pool it was agreed that the father would take X to the nearby markets to purchase coffees prior to X’s lesson.  Despite the earlier distress displayed by X he went with the father to the markets and then subsequently returned to the pool.  The mother described X as still appearing out of sorts.

47. The mother then dropped the father and Y home and returned with X to his swimming lesson.  She says that when they returned home X would not go into the house and said that he was “scared of Daddy”.[37]

    [37] Affidavit of the mother filed 23 February 2021, paragraph 34.

48. X remained somewhat upset for the balance of the day and said “I don’t like Daddy”.[38]  Later that day the mother messaged her mother and said “should I try to get X in with a child psychologist or wait do you think?” and “something is not right”.[39]

    [38] Affidavit of the mother filed 23 February 2021, paragraph 37.

    [39] Affidavit of the mother filed 23 February 2021, paragraph 38.

49. Later that evening the father recorded by video the mother playing with the children.  The mother described that X remained sad for the rest of the evening.

    Sunday 26 July 2020 - the vigil

50. The mother accepted that central to the formation of her concerns about the father was his attending on X at about 12:30 am on 27 July 2020.  She attributed significance to what she otherwise agreed was unremarkable behaviour on the part of the father in going into X’s room due to an absence of there being any reason for him to do so.  She asserts that she was awake at the time he got out of bed and did not hear X call out.  This conflicts with the father’s evidence who says that he got out of bed because he heard X.

51. The mother describes that she followed the father to X’s room.  The father left X’s door ajar and climbed into X’s bed with him (rather than using an available trundle bed).  The mother described that she heard X cry out “mummy” and that the father whispered “daddy is here” and “shhh, shhh” and heard the father kiss X multiple times.[40]  The mother said that she touched the father on the shoulder and asked him “is everything ok?”.[41]  The father nodded that it was.  She said that she did this so that he would know that she was there.

    [40] Affidavit of the mother filed 23 February 2021, paragraph 55.

    [41] Affidavit of the mother filed 23 February 2021, paragraph 56.

1. The mother then sat in the corridor, as she intuitively felt unsettled.  It should be recognised that, at this point, the mother was acting on the basis of some unspecified suspicion of the father.  She said that she heard the father begin to snore.  Later the mother attended to Y on a number of occasions.  Aside from when she may have “dozed a little” she remained listening out for X’s room until attending to Y at about 5:00 am.[42]

   [42] Affidavit of the mother filed 23 February 2021, paragraph 58.

2. The mother says that she asked the father why he had gone into X’s room, and that he explained it was because X had awoken.  She says that she later asked X if he was “ok” to which he had said “daddy came into my room, woke me up, and I was scared”.[43]  She described that X appeared sad.

   [43] Affidavit of the mother filed 23 February 2021, paragraph 66.

3. Later that morning the mother messaged her mother, describing that she was “petrified” and had remained on vigil, indicating to her mother that she may be leaving the father that day.[44]

   [44] Affidavit of the mother filed 23 February 2021, paragraph 61.

4. Casting some uncertainty on the mother’s account, however, is her description, given on 27 July 2020 to Dr U of GHS at Exhibit F4, that she had awoken in the middle of the night, the father having left their room.  The mother accepted that if this was the case, she had not been awake at the time the father left the room and so would be unable to say that X had not called out.

5. However, she disputed that this is what she had said to Dr U.  Further inconsistencies between her evidence and what she told Dr U arose in her assertion to Dr U that she did not enter the bedroom because she did not want to upset the father.  She agreed this was inconsistent with her affidavit evidence, where she said she had entered the room on two occasions, one of which involved her touching and speaking to the father.  She explained the inconsistencies on the basis that she had now given the matter more thought.  She asserted that she now had a better recollection than she had when she saw Dr U on 27 July 2020.

6. The mother was also cross-examined on her having reported to Dr U that X said to her “daddy woke me up and I was scared”.[45]  However, before attending on GHS, the mother was recorded as having given a different account to Shelly, a case worker who dealt with the mother from the 1800RESPECT line.  She recorded the mother as saying that X had said daddy came in and woke me and snuggled me.[46]  The mother asserted that she had added to this “and I was scared”.  An AFP case note from 4 November 2020 purports to record the mother report as being that “daddy came and woke me up and snuggled me”.[47]  Observing the inconsistency between these reports, the mother accepted that X may have said “snuggle” rather than “scared”.[48]

   [45] Subpoena bundle, p. 1045.

   [46] Subpoena bundle, p. 987.

   [47] Subpoena bundle, p. 283.

   [48] Transcript 29 March 2021, p. 42 lines 16–17.

7. It is difficult to understand the mother’s response to the swimming incident nor the father going into X’s room.  Neither forms a reasonable basis to infer that the father had immediately done some harm to X.  Further, there are a number of matters that point away from drawing such an inference.  For example, reliant upon the notes taken by agencies that the mother reported to at the time recording X as having described that the father had “snuggled” rather than “scared” him leads to the conclusion that, contrary to the mother’s current report, X described it as snuggled rather than scared him.  Further, there can be no satisfaction that X failed to call out, with either the mother failing to hear it because she was asleep or otherwise.  However, even if X did not call out, or even if X used the word “scared”, such matters do not reasonably give rise to the mother’s suspicious response.

8. Of particular importance is that the mother’s keeping of the vigil strongly points away from any notion that something untoward occurred between the father and X.  The mother kept such vigil in a context of an intuitive uneasiness, hearing nothing occur.

9. The evidence leads to a conclusion that the father did not do anything to X, and that the mother had no reasonable basis to consider that he had.

10. Under those circumstances the mother’s reporting of the evening to outside agencies, her self-described “petrified” response, and the triggering of her then latent intention to end the relationship are difficult to comprehend.

    Monday 27 July 2020 - childcare centre drop off incident

11. X was resistant to attending childcare on 27 July 2020, and became upset on the trip there.  The mother sought to placate him with one of his favourite treats, being a hash brown from McDonalds.  This was unsuccessful and X remained upset, the mother also becoming upset.  On arrival at childcare the mother was distressed to the extent that she was crying on the ground and was helped off the ground by one of the staff, Ms E, a witness at the trial.  With X on her lap and Y close by, the mother described her concerns to Ms E saying that she was leaving the father, was concerned that he was sexually abusing the children, that he had made sexual comments about the children and that she had witnessed him to rub Y’s privates when changing her nappy.[49] 

    [49] Exhibit F5.

12. The mother also described that something had happened the previous night, when the father had gone to X’s room, claiming that X was upset when X had made no sound and was asleep.  She did not know what happened, although she had remained on vigil, hearing the father fall asleep.

13. Two issues arise at this point.  Firstly, the reasoning advanced by the mother for her concern as to possible sexual abuse does not reasonably raise such a suspicion.  Secondly, X is at this point exposed to a high level of distress on the part of the mother, centred upon the father and the prospect that he is dangerous to X.

14. X was not left at the childcare centre.  The mother then travelled to her parent’s home and, on the way spoke in a distressed state to her mother as she drove with X (the mother wearing an earpiece).

15. At about the same time the mother’s father had organised security cameras (to provide security in respect of the father) that were being installed after the mother arrived.  What remained unclear at trial was what had passed between the mother and her parents to prompt, at that point, the installation of the cameras.   

16. The mother was distressed on arrival at her parent’s home, and once inside the house a further conversation ensued with her parents.  X was exposed to at least parts of these episodes of distress.

17. The mother had a further conversation with 1800RESPECT and describes that she was told that her description raised some “red flags” which she construes as pertaining to possible sexual abuse.[50]

    [50] Affidavit of the mother filed 23 February 2021, paragraph 80.

18. When X subsequently went to the toilet the mother checked his bottom observing the skin around his anus to be red.

    Monday 27 July 2020 – the attendance at GHS

19. The maternal grandparents, mother, X and Y then travelled to, and attended at GHS, where X underwent a physical examination as described further below, after which they left the unit, returning to the maternal grandparent’s home under the impression that sexual abuse of X had been physically confirmed.  This understanding conflicted with that of the AFP, who did not take it to be physically confirmed and it remains unclear why the mother formed such a conclusion.

20. The mother and father subsequently had a conversation in which the mother indicated that she intended to separate, that X was distressed about going home and was scared of the father.

21. That night, for the first time, X slept overnight at the maternal grandparent’s home.

    Tuesday 28 July 2020

22. The following morning, 28 July 2020, X and the mother attended V Childcare, both becoming upset.  The mother described X saying he was scared and cowering into her arms (behaviour that the mother said had also occurred the previous week at V Childcare).

23. Later that afternoon a visit to the father was organised at a park.  The maternal grandfather, who X was travelling with, said something about seeing the father and X became upset.  At the carpark near the park the mother also said something about seeing the father and X became upset with her, cuddling into the mother.

24. X did not spend time with the father because he was obviously distressed.  Although the father sought to engage with X those attempts were unsuccessful, with X displaying distress.  Y, however, did spend some time with the father at the park.

25. The mother says that she asked the father to retrace his steps over the weekend to see what may have caused X’s reaction, and that she believed a trauma event had occurred to make X scared.

26. The mother reported that later that evening she and X had the following conversation:

    When putting X to bed that night between 8.15 - 9.38pm, X made a number of comments including “Daddy tickles my bottom in a circle” and “Daddy tickles my willy and I don’t like it” and “I say – stop it, I don’t like it”.[51]

    [51] Affidavit of the mother filed 23 February 2021, paragraph 111.

27. The mother describes making an audio recording of her recollection of this conversation, which she subsequently transcribed into a “file note”.  In this “file note”, X also is reported by the mother to have said that he did not like it “when Mr T comes”, saying:

    X: “No, daddy is Mr T.  Daddy tickles my bottom in a circle and he doesn’t wash his hands .. and I say “stop it, I don’t like it” ..  Daddy has poo on his hands, he should wash his hands, but he doesn’t.”

    Ms Eastley: “Darling, I’m so sorry, does Daddy tickle you anywhere else?”

    X: “Daddy tickles my willy and I don’t like it, and I tickle my willy and I don’t like it.  And I want my Mummy and I was left all alone and I wanted my Mummy.”[52]

    [52] Subpoena Material, p. 1073.

    Wednesday 29 July 2020

28. The father pressed the mother to be able to spend time with the children.  The mother withdrew the children from their childcare facility.

29. The mother gave a statement to the AFP.  On 29 July X was interviewed by the AFP.  He denied that daddy was Mr T.

30. At about 8.30 pm X behaved in a manner that the mother construed as sexual.  (She had, prior to this observed that from February 2020 X had started to take his clothes off and play with his genitals.  She said that he had also started to expose his penis “more regularly” explaining that a boy in his class did this.)[53]  The mother described that X “began what appeared to be a number of sexual acts on the bed”.[54]  He undressed and lay on his back with a pillow under his hips, panting heavily.  However, X also described his actions at the time as “I’m doing my yoga and stretches”.[55]

    [53] Affidavit of the mother filed 23 February 2021, paragraph 196.

    [54] Affidavit of the mother filed 23 February 2021, paragraph 201.

    [55] Affidavit of the mother filed 23 February 2021, paragraph 201.

31. It should be noted that the mother practises yoga.

32. The mother described that X touched and rubbed his genital area, rolled onto his side and stroked his backside in circular motions.  This was described in the proceedings as “burlesque” behaviour.  She construed this as mimicking a sultry look.  He wiggled his fingers describing them as “compasses”.[56]

    [56] Affidavit of the mother filed 23 February 2021, paragraph 202.

33. The mother says that she formed the view that the father had sexually abused X on this day.  She broke down in her parent’s home, saying “he did it”.[57]

    [57] Affidavit of Ms L filed 22 February 2021, paragraph 23.

    1 August 2020

34. The mother considered that X behaved in a sexualised manner.  He had a bath but then hid in the cupboard naked.  The mother explained that this was against Body Safety Rules that she had implemented.  X countered that he was a kitten and that “kittens, duckies and doggies don’t wear clothes.”[58]  He meowed, then sucked on the metal end of a curtain drawstring.  When asked what he was doing he said “when things are beautiful we suck them”.[59]

    [58] Affidavit of the mother filed 23 February 2021, paragraph 207.

    [59] Affidavit of the mother filed 23 February 2021, paragraph 207.

    2 August 2020

35. The mother says that X said to her that he did not like his father’s kisses all over his cheek and mouth.  X said that they did not do this in this house (presumably the maternal grandparent’s home).  The mother reinforced to him that such were not in line with the Body Safety Rules.  Further, when the mother was cleaning X’s bottom she explained to X that we don’t touch each other’s bottoms unless “you have done a poo” to which X replied “[b]ut daddy does, daddy eats my botty”.[60]

    [60] Affidavit of the mother filed 23 February 2021, paragraph 211.

    9 August 2020

36. The mother describes that X asked to snuggle with the mother under the blankets, touching his genital area.  She says that he touched her “inappropriately” (including on her breasts).[61]  She has described that on other occasions he has invited people to snuggle with him.

    [61] Affidavit of the mother filed 23 February 2021, paragraph 208.

37. The mother has drawn a sexual connotation in relation to X’s behaviour and comments.  The single expert considered it to be a “big leap” to describe these as sexualised behaviours.[62]  There is considerable difficulty in placing a sexual gloss on these behaviours, as opposed to X pretending to do yoga as his mother does, or to be a kitten, or simply desiring to snuggle.

    [62] Transcript 7 April 2021, p. 778 lines 46–47.

    6 September 2020

38. As a result of receiving a report from Dr U of GHS, a caseworker from CYPS attended upon the mother on 6 September 2020.  The caseworker met with the mother and discussed the case, including X’s “sexualised” behaviour, concerns about the father, and the father’s involvement with the police.  X was present during these discussions, and it should be concluded that he was able to hear the discussions taking place.  It was unclear what imperative there was for conducting such an interview in X’s presence.

39. The caseworker accepted that conducting the interview in X’s presence exposed him to the subject matter of the dispute.

40. The interview involved the exposure of X to the dispute and to the allegations against the father involving him.  X was exposed to the notion that the father was a person who was dangerous to him.  No proper step appeared to be taken to protect X from the potentially adverse consequences of being exposed to the assessment and investigation process, carrying with it the risk that his understanding of his father would be impacted by the process rather than by his actual experience of the father.

    Later incidents

41. The mother says that in November 2020 X variously said that the father:

    (a)Smacked X when no-one was there;

    (b)“Wee’d” on X and the computer;

    (c)Is in a scary house and gets very mad at X;

    (d)Takes X’s clothes away and rips them and wants to make a monster costume;

    (e)Had, along with “J” broken the body safety rules;

    (f)Had squeezed X’s bottom;

    (g)Had, along with “J” woken X’s willy with their claws.[63]

    [63] Affidavit of the mother filed 23 February 2021, paragraphs 216–217.

42. It is unclear what the context or prompt was for X to make these comments, he not having seen his father since July 2020 (the interview with Mr C being the next occasion, occurring on 27 November 2020).

43. The mother asserts that X had described the father as “J”, as pretending to be “J” and as being a monster.  However, the mother also describes X speaking of J as an “old boy,” as living in mummy and daddy’s house, and as having pushed him in the playground.[64]

    [64] Affidavit of the mother filed 23 February 2021, paragraphs 234–239.

    INTRODUCTION OF THE EXPERTS

44. Four experts gave opinion evidence during the hearing of the matter.

45. Dr U and Associate Professor S gave evidence in relation to X’s presentation to the GHS on 27 July 2020, and in particular as to whether X bore an injury to the anus and the potential causes of such. 

46. Dr U examined X directly as an on-staff paediatrician in the GHS and provided a report on her examination and assessment.  As part of the examination of X she used a colposcope, whilst Associate Professor S relied upon footage recorded by the colposcope.

47. The reports prepared by Dr U and Associate Professor S differed and so arrangements were made for them to confer, from which meeting they produced a joint report that set out their areas of agreement and disagreement.  The table setting out these matters is reproduced later in the judgment.

48. Although it was intended that they would give their evidence simultaneously during the trial, Dr U complained as to pressure that she asserted she had been placed under by Associate Professor S and so their evidence was given separately.

49. Those complaints were that the interaction was not pleasant, that Associate Professor S had made a comment about Dr U’s career being “ruined”, had said to her that as a “colleague and a friend” he did not want such to happen to her, had queried whether she had previously given evidence in this type of case, spoken of the implications of the case on parenting arrangements, and questioned whether her report had been peer reviewed or looked at by anyone qualified.[65]  Dr U asserted that as a result she had not performed at her best, nor been as sharp as she otherwise may have been. 

    [65] Transcript 31 March 2021, p. 359 lines 1–14.

50. What followed the conference was Associate Professor S asked Dr U whether she wished to be the one to prepare the joint statement.  She described that she was stressed and that Associate Professor S had “kindly” agreed to do it.[66]  Associate Professor S sent the draft to Dr U for her approval.  She made changes to the document and then signed and returned it.

    [66] Transcript 31 March 2021, p. 361 lines 6–8.

51. Dr U was taken through the joint statement to identify any changes that may need to be made as a result, but ultimately identified that she had not “got it wrong” when she signed the joint statement, and made no correction of any significance.[67]

    [67] Transcript 31 March 2021, p. 375 lines 37–9.

52. The significance of Dr U’s complaints about the process was therefore somewhat unclear and her complaint, insofar as it related to any impact upon the joint statement, was not made out.

53. Associate Professor S was asked about the process of the preparation of the joint statement.

54. He accepted that he had asked whether anyone with specific training or qualifications had also examined the video from the colposcopy, and that Dr U had said that she had not had specific formal training but was reliant upon on the job training.  He denied saying to Dr U that her career would be ruined.  He accepted that he had asked her if she had given evidence in a court matter such as this before.  He explained that he asked this because on reading her report he was left with the impression that she had little experience or qualification, or had been in error and that he was seeking to “tease out what was going on”.[68]  He said that he was worried that Dr U was “a little out of her depth” and that he asked out of “benevolence, not malevolence”.[69]  He was concerned that Dr U’s findings could not be justified and was concerned as to how they might be interpreted.

    [68] Transcript 6 April 2021, p. 510 line 4.

    [69] Transcript 6 April 2021, p. 510 lines 5–6.

55. Accepting that Dr U experienced pressure, it should not be thought that Associate Professor S, as both a highly experienced medical expert, interacted with Dr U other than in a professionally appropriate manner.  He displayed a strong commitment to ensuring the integrity of the forensic evidence coming before the Court, and as to its limitations.  In any event, Dr U was clear that the joint statement produced from the process did not require any correction of substance.

56. Conflicting expert evidence was given by the experts as to whether X had an injury to his anus on examination at GHS, which is assessed below. 

1. However, it was common between the two experts that the absence of injury does not negate the possibility of a sexual assault having taken place, and the presence of an injury does not necessarily establish that an assaultive event has taken place.

2. Mr C was engaged as a single expert.  He assessed the parties and children and provided a report.  The assessment process constituted the single time that the father and X have interacted since separation. 

3. The father engaged Dr K, a psychologist with expertise in assessment of sexual risk, to prepare “sex offender assessment report” that would examine the father’s personality and behaviour, risk factors observed in the father, assess the risk of sexual or other harm the father may pose, along with treatment prospects and options.[70]

   [70] Exhibit M2, pp. 6–7.

4. Dr K’s evidence was addressed primarily to issues of deviance and impaired sense of judgment or boundaries.  In general terms Mr C deferred to Dr K in respect of the assessment of the father in relation to deviance and boundary issues.  Although the father decided not to rely upon Dr K, in accordance with the relevant rules he caused to be served upon the ICL a copy of Dr K’s report.  That report became part of the evidence in the proceedings as Exhibit ICL1 and the ICL determined that she would call Dr K to give evidence.  Dr K was subsequently cross-examined by the ICL and each of the parties. 

   THE EXPERT EVIDENCE IN RELATION TO THE EXAMINATION OF X AT GHS

5. As noted above, on 27 July 2020 X was taken to GHS by the mother.  Children are referred to GHS under circumstances where there is an issue as to whether they have suffered abuse.

6. X was examined by Dr U on 27 July 2020, a paediatrician working at the GHS.  Dr U is a qualified paediatrician.  She is currently studying forensic medicine but holds no formal qualification regarding detecting child abuse.  She asserts that she has received on the job training, in particular while working at GHS for the last three years, and is able to apply her knowledge from the examination of children outside of a forensic setting as this provides a normal baseline against which other findings may be judged.

7. Part of Dr U’s role is to assess the children who attend, including for the assessment of any physical manifestations of abuse.  She gave evidence in the proceedings following the issue of a subpoena.

8. Dr U examined X with the aid of a colposcope, being a device that eight times magnifies and illuminates the area being examined and through which the examined area may be recorded.  This recording, along with the clinical notes (Exhibit M8) were made available to Associate Professor S and formed the basis of his report.

9. Dr U also examined X by eye without the aid of the colposcope and took a history from the mother.  A report was prepared by Dr U on 26 August 2020, after receiving further reports from the mother about X’s progress.  In the preparation of the report Dr U had discussions with other health practitioners in the GHS, and her report was reviewed by the Director of the GHS, Dr BB.

10. Dr U’s observations from the medical examination of X on 27 July 2020 are recorded in an AFP case note written on that date.  It records that Dr U “identified several small lacerations around his anus diagnosed as a penetrative friction injury”.[71] However, it also recorded that Dr U said that “it could not be concluded whether the injuries were caused by an object or by hardened faeces”.[72]

    [71] Exhibit F15, p. 365.

    [72] Exhibit F15, p. 365.

11. This ambivalent opinion expressed to the police appeared to have hardened by the time of her written report of 26 August 2020 which detailed her findings in relation to the examination of X on 27 July 2020.  She concluded that the “[g]enital examination (on 27^th July 2020) revealed the presence of a swollen anal orifice, significant erythema and multiple abrasions as described above.  These are extremely significant and abnormal findings.  These are indicative of significant friction and pressure (blunt force trauma)”.[73]

    [73] Exhibit F4, p. 1050.

12. Dr U’s report indicated that it was “extremely important to ensure X’s safety in the household” and concluded with a recommendation that “CYPS and SACAT assist the family in ensuring that this child is safe from any further possible sexual assault”.[74]

    [74] Exhibit F4, p. 1050.

13. Dr U and Associate Professor S then conferred on 23 March 2021 following the preparation of their reports, working their way through Associate Professor S’s report paragraph by paragraph.

14. Although both Dr U and Associate Professor S each prepared reports, it is the joint statement (Exhibit C2) that provides the best summary of the opinions offered by each and the areas of difference and agreement, as the joint statement modified the opinions reached by Dr U in her report.  It is convenient to set out the table contained in that joint report.

ISSUE (Reference found at page x of S report)	U’S ORIGINAL COMMENT	WELL’S RESPONSE	DISCUSSION	FINAL POSITION
Sexualised behaviour (p. 5-6)	X was displaying ‘significant sexualized behaviour’	No description of behaviour that could be classified as sexualized behaviour	Range of behaviours reported by mother only. None having the features generally accepted as sexualized.	No evidence of sexualised behaviour
Anal swelling (p. 7)	‘...significantly swollen anus’	No objective evidence of swelling.	U – maintains that swelling is present but acknowledges that it is not significantly swollen But rather that there is ‘a degree of swelling’. S – no objective evidence of any swelling-landmarks unchanged and parameters of recording swelling are absent.	1. Swelling is subjective assessment that may attract different opinions. 2. (S) No evidence of swelling. 3. (U) A degree of swelling.
Anal shape. (p. 7)	The anus ‘had a linear (rather than circular) appearance’	There is no abnormality of the anal appearance.	U – this is abnormal...unusual. S – Normal finding. A dynamic structure that changes shape in response to internal (faeces) or external (positioning or pressure) forces.	1. (U) – Abnormal 2. (S) – Normal finding. No such abnormality identified in international peer reviewed literature.
Anal margin colouring (p. 7)	‘redness all around the anal orifice extending for approximately 1 cm all around’	This is a universal finding.	U - her belief is that rather than being universal it should read as being not uncommon. S – Universal. Support from international peer reviewed literature.	U - This finding is not present in all individuals though it is not uncommon in a child of this age. S – Universal finding. Less apparent in dark skinned individuals
Anal injuries (p. 8)	‘Multiple small abrasions approx. 5-6 in number all around the anal orifice. They measured approx. 1mm x 1mm in size each.’	No injuries identifiable. No evidence that the subject displayed pain when the anal margins were repeatedly touched with a swab stick.	U – concedes: ·   Injuries not measured. ·   Error in recording size of injuries ·   “dot abrasions” rather than linear as might be interpreted from original records of size. S – Artifact or areas of inflammation within rugae. No injuries seen on review of video. No evidence that the subject experienced pain or discomfort when the region was repeatedly touched with a swab stick	U- dot abrasions representing sites of trauma. S - no injuries identifiable. Palpation of an acute injury (abrasion) at this site will result in pain that is likely to manifest by movement, withdrawal or some other response in the child.
Bowel habits at the period prior to the initial presentation (p. 9)	Abrasions or anal fissures may be caused by a range of conditions	S- there is no evidence (in the notes or report) that any history of bowel habits in the days/weeks prior to the initial examination was obtained. This history is critical in assisting the interpretation of any resultant findings. There is a clear account of disturbed bowel habits provided in at the time of the subsequent review. U- states that she would have asked this question but concedes that neither the questioning nor response has been recorded.	A range of physiological (inc. passage of a hard motion or diarrhoea) and pathological conditions may cause abrasions at the anal margins. In the absence of other findings, it is not possible to identify whether a physiologic or assaultive event produces an anal fissure.
Conclusion (p. 9)	1. There are concerns that the subject, a 31/2-year old boy, may have been sexually assaulted. It is my opinion that there were no objective physical signs of trauma identified on his genitalia or anus. 2. It should be noted, that no objective signs of trauma to the genito-anal region are identified in the majority of children who are subjected to sexually assaultive behaviour. Hence the absence of injuries does not exclude the possibility of a sexual assault.	U- findings identify signs of trauma to anus. S - no objective physical signs of trauma identified on his anus.	Disagreement with findings and opinion (para 1) Agreement with Para 2 of conclusion

1. Dr U expanded upon the clarifications in her report.

2. Dr U accepted that rather than “X is showing significant sexualised behaviour” she had observed no sexualised behaviours and that none of the behaviours reported by the mother had the “features generally accepted as sexualised”.[75]  Rather she asserted that the mother’s description subsequent to the examination, being that X had both asked his mother to put her finger into his bottom, and had been putting his finger into his bottom constantly, again and again,  whilst not constituting overt sexualised behaviour, was “worrying”.[76]  Later in her oral evidence she described this as “sexualised behaviour”.[77]

   [75] Exhibit C2, p. 89.

   [76] Transcript 31 March 2021, p. 363 lines 34–36.

   [77] Transcript 31 March 2021, p. 399 lines 10–11.

3. However, the mother clarified in her evidence that she had not observed X placing his finger into his bottom, but rather onto his bottom, rubbing his buttock.[78]  Neither was there any evidence that X had asked her to place her finger into his bottom.[79]

   [78] Transcript 39 March 2021, p. 101 lines 1–22.

   [79] Transcript 31 March 2021, p. 363 lines 6–19, lines 30–35.

4. Dr U says she was told by the mother that X said “Mummy, you put your finger in my botty”.[80] 

   [80] Transcript 31 March 2021, p. 364 lines 18–20.

5. Dr U conceded that rather than the anus being “significantly” swollen, the observation was a subjective assessment, and should be described as a “degree” of swelling.[81]  Her observation of a linear anal shape, she asserted, was connected to her assessment that the anus was swollen.

   [81] Exhibit C2, p. 89.

6. In relation to anal margin colouring, Dr U said that such was not uncommon, but that in X the colouring was not related to pigmentation.

7. In relation to the purported anal injuries, Dr U maintained her view that she had observed the injuries both without and with the aid of the colposcope.  Accepting that she had not measured the injuries at the time, she estimated on the colposcope video footage abrasions measuring approximately 1mm by 0.1mm.  She accepted this to be an approximation, based on the colposcope magnifying at eight times when held at 45 cm from the point being observed.

8. Dr U asserted that the abrasions could be clearly seen on the colposcope video, in her report asserting that they were indicative of “significant friction and pressure (blunt force trauma)”.[82]

   [82] Exhibit F4, p. 1050.

9. At the time of the preparation of his report, Associate Professor S was a Senior Physician with the CC Medical Institute (previously the Head of Department from 1995–2014) and an Associate Professor at the DD University.  As revealed by his curriculum vitae and affidavit, he is strongly qualified to offer an opinion in respect of the issue of injury to X’s anus.  Aside from numerous publications, he has had involvement in approximately 4,000 cases of child or adult sexual assault, had responsibility for training police, social workers and medical practitioners and has been appointed as the Head of GHS specialist in sexual assault services at multiple hospitals.

10. Unlike Dr U, Associate Professor S found no objective sign of injury to X’s anus.  Further, his opinion was that if it was the case that X had dot abrasions on his anus, such would not be an uncommon finding in young children, caused for example by nappy rash, or by friction which could arise from a nappy, or walking, or which could be caused by blunt force trauma.

11. Although he conceded that there were advantages held by Dr U in seeing X directly as opposed to merely through the colposcope,[83] the significance of such is diminished where their disagreement extended to whether what was depicted on the colposcope was an injury or not. 

    [83] Transcript 6 April 2021, p. 497 lines 16–34.

12. The experience and expertise brought by Associate Professor S was significantly greater than that brought by Dr U.  Where they are in disagreement particularly about what was depicted on the colposcope footage, I prefer the evidence of Associate Professor S given this depth of experience.  Further, given the experience and qualification of Associate Professor S, as well as the nature of the explanations given by him, I rely upon his explanations as to the potential significance of the physical observations.

13. In summary the end point of his evidence was that an absence of injury would not exclude an assaultive event, and that if there was inflammation/swelling or small abrasions as asserted by Dr U, but not accepted by him, they were also explicable by non-assaultive mechanisms.

14. The conclusion in respect of this aspect of the evidence is that X’s presentation to GHS is a neutral matter, neither pointing toward nor away from a conclusion as to abuse.

    DR K

15. Dr K interviewed the father, had him complete various psychological tests, and reviewed a significant part of the trial material.

16. She identified two different ways to consider the father’s conduct in relation to the sexual issues raised in respect of the children and how such conduct could be considered in terms of risk.  They involved the consideration of whether the father has a deviant sexual interest in children or, alternatively, whether he is merely lacking in insight, having impaired judgment and sense of boundaries in respect of the exposure of the children to sexual issues.

17. Differentiating between these two potentialities was a matter of some difficulty for Dr K who accepted that the identification of the father’s internal motivations and thought processes were generally matters that were reliant upon his self-report, although some insight was also garnered from the father’s commentary in both videos. 

18. Dr K was asked which of the two explanations were considered by her to be the more likely.  She described that if the bath incident was disregarded then there were a number of behaviours engaged in by the father which could be considered to either be, or not be, sexually motivated.  However, the bath video was considered by her to be particularly problematic as it was difficult to find an explanation for the father’s conduct in respect of the bathing of X that fell outside one motivated by sexual interest.  The bath incident then added concern in the interpretation of the other more ambiguous activities engaged in by the father.[84]

    [84] Transcript 1 April 2021, p. 462, lines 7–15.

19. The father’s conduct in the bath video was considered by Dr K to be non-normative behaviour, falling outside the mainstream of what would be considered acceptable.  Although Dr K described her reaction to the video as “visceral” and “nauseating” she accepted that another person’s response to the same video may have equal legitimacy to that which she had experienced.[85]  Importantly she did not consider that her reaction to the video was determinative of how she should interpret the video[86] and nor did she consider it to have had any significant impact on the conclusion that she reached.[87]  Rather, the matter that bore significant weight was that the father’s conduct towards X as shown on the video fell within the clinical definition of abuse, being the sexual touching of sexual organs without consent.  This was differentiated from an activity such as the cleaning of a child’s bottom on changing a nappy which was an activity engaged in for a particular (and non-sexual) purpose. 

    [85] Transcript 1 April 2021, p. 456 lines 26–42.

    [86] Transcript 1 April 2021, p. 456, lines 33–37.

    [87] Transcript 1 April 2021, p. 457 lines 23–27.

20. Dr K was troubled by the father’s particular focus on X’s genitals and bottom and the narration on the part of the father wherein he asserted that X enjoyed having his testicles massaged.  She observed that this showed an explicit intent and focus on the genitals on the part of the father, being a focus revealed from the father’s own words.  Dr K considered that the father’s actions towards X constituted child abuse, being sexualised behaviour absent X’s consent.  Adding to this concern being raised by the bath video, Dr K observed that X has on other occasions described the father touching X’s “bottom” and “willy”.  These were matters that pointed, inconclusively, toward an interpretation based on deviance. 

21. Dr K accepted that in the absence of sexual arousal on the part of the father in engaging in this kind of conduct, the conduct would point to deficit in his judgment rather than deviance. 

22. Although it emerged in the proceedings that the father accepted that he had engaged in such behaviour on a number of occasions, Dr K had not taken into account there had been further such occasions. 

23. Dr K considered that if it was found that the father engaged in sexual contact with X the night prior to separation then such pointed to a conclusion of deviance. 

24. Dr K further observed that if the father had, as alleged, an erection at the playground when he took Y to play, such would point further to an understanding and interpretation of the father’s conduct based on deviance. 

25. She considered that if there was an erection at the playground it did not, of itself, increase the risk level posed by the father.  Rather, its risk significance is that it would point toward the father being in the higher risk category of having a deviant sexual interest in children.

26. Dr K also considered the other criticisms made of the father’s conduct and sexual comments in the presence of the children.  She reported that the father had explained to her that the comments were made without any sexual intent, and were merely banter.  Dr K regarded the comments as unusual, at times non-normative (not mainstream), and as potentially springing from a different baseline or culture regarding his language.  She observed that the comments were such as to carry sexual connotations and not in accord with societal understanding of what is appropriate to use with this age group.  In respect of the kissing of the children on the mouth Dr K did not regard such as necessarily sexually motivated, noting that many parents kiss their children on the mouth, although it was consistent with loose or permissive boundaries around, and sexualising of children.

27. Dr K did not consider that the comments made by the father were necessarily indicative of deviance,[88] but that the father’s engaging in these behaviours collectively raises the risk of future sexual offending.[89]

    [88] Transcript 1 April 2021, p. 440 lines 28–33.

    [89] Transcript 1 April 2021, p. 443 lines 35–39.

28. Ultimately Dr K indicated that she was not able to determine whether or not the explanation for the father’s conduct was that the father had such a deviant interest,[90] rather than having impaired insight, judgment and boundaries.

    [90] Transcript 1 April 2021, p. 442 lines 35–37.

29. The alternate explanation of impaired judgment is not without its own risk issues for the children, albeit at a lower level.

1. Against these risks he considered that if there was no relationship with the father X may miss out on benefits coming from a positive relationship.  If the engagement is positive and enhancing, then Mr C explained that “the social science tells us clearly if you have fathers more actively involved kids do better”.[113]  He said that there is a part of X that needs to see his father.

   [113] Transcript 7 April 2021, p. 703 line 47 to p. 704 line 1.

2. However, he also observed that if the experience in spending time with the father was negative that missing out on the relationship may be the better outcome.  He considered that it was difficult to predict the effects of future exposure to the father but assumed that what he had seen in the assessment process would again occur in the future, although the passage of time and the development of resilience by X may lead to a different outcome.  In considering these possibilities he thought that if the mother’s description about X’s ongoing conduct is correct, being ongoing difficulty regulating his emotions and markers of changes in his relationship with the mother such that that relationship was not as secure as it used to be, then it appeared that X remained stressed and anxious.  He said that it was of key importance to secure a reliable attachment to the mother.

3. He thought that if there was no unacceptable risk posed by the father then the time should be graduated initially occurring at a supervised contact centre, perhaps with other family members around in order to establish a new normal.  He considered that this should take place despite anxiety on X’s part on the basis that there is no anxiety related condition that is not treated by exposure.  He thought that this time should build over three to six months to allow it to normalise.

4. However, in considering the establishment of such a new normal he thought it needed to be careful, graduated, conservative and conducted in a manner to support the relationship.  He said that it could not be predicted how such a process would go and that it carried with it an attendant risk of re-traumatisation followed by further re-traumatisation of X, of X become increasingly symptomatic and experiencing significant psychological problems as a result of that ongoing trauma such as anxiety, depression, difficulty with organisation, planning, attention, concentration, social relational judgment, affect and emotional regulation.  The single expert said that it could be expected that there would be a spike in X’s reaction to start with but he was hopeful that there would be positive corrective experiences for X.  He considered that if X was re-traumatised and became symptomatic and continued to display behavioural problems that the situation would require re-evaluation to weigh the benefits and detriments. 

5. Mr C considered it was difficult to see how the father could be excluded from either child’s life but at the same time did not know whether X would “break”, would cope or would benefit from time with the father, or whether there were scaffolds that could be adequately put into place to protect him through that process.[114]

   [114] Transcript 7 April 2021, p. 712 lines 22–24.

6. He considered that there was a possibility to order recognition time, being supervised periods with the father six to eight times a year on the basis that there is no “escaping your parents” even in the face of sexual abuse.[115]  He also thought recognition contact may also be traumatic, and he could not predict if X would settle into it. 

   [115] Transcript 7 April 2021, p. 727 line 47 to p. 728 line 6.

7. The single expert expressed a preference that if one child was to see the father then both should together, to decrease the risk that one would feel punished or excluded or frightened for the other.  He considered that it was problematic if Y was to attend the father but not X. 

   DISCUSSION

8. As noted earlier in the judgment, the parties concentrated on what were the key and determinative issues in the case, being issues pertaining to risks to each of the children, and to the benefits that they might receive from a relationship with the father. Those risks were not restricted to the risks identified in s 60CC(2)(b), but also related to ongoing risks that do not rely on concerns as to future instances of abuse. Again, as noted earlier, although other of the s 60CC considerations are raised in the evidence their material significance is addressed through the consideration of risk and benefit.

9. Further, the consideration of these matters occurs in the context that there is no contest about the children living with the mother, a position taken by the parties that gave proper recognition to the circumstances that have arisen since the parties separated.  Although the parties had placed some emphasis on matters occurring throughout their relationship, such as allegations of family violence, these were not prominent by the end of the trial, their significance being overshadowed by the issues of risk and benefit.

10. Before moving to the consideration of those issues, it is convenient to deal with issues as to the allocation of parental responsibility.  The parties were at odds as to the allocation of parental responsibility, the father seeking that it be equally shared, the mother that it be solely held by her.  The issues raised in this case point definitively against the appropriateness of a shared arrangement.  The nature of the allegations made against the father, the belief held by the mother in relation to the father, and the comprehensive breakdown of their ability to communicate contradicts the notion that the parties could comply with the obligations placed upon them to cooperate in the manner contemplated by s 65DAC, or that causing them to do so would result in interactions between them or decisions being made that would support the best interests of the children.  Whether or not the presumption in favour of an order for equally shared parental responsibility applies, the best interests of the children does not support the making of such an order for the reasons identified above.  Parental responsibility will be allocated to the mother as the parent that the children will be living with.

11. Turning to the issues of risk flowing from the father and potential benefits accruing from relationship with him, as identified above the parties concentrated their attention on a number of discreet factual areas.  It is appropriate to go to those factual matters to assess the risk and benefit consequences that flow from them.

    Bath video

12. It was uncontested that this incident occurred, wherein the father massaged X’s testicles, commenting on X’s enjoyment of such.  It was further uncontested that the father had engaged in similar behaviour on other (albeit unidentified) occasions.

13. Whether or not the father intended to engage in a harmful manner with X, this conduct of the massaging of X’s testicles to provide him with pleasure, in a manner that was not consensual, and was not necessitated by some practical imperative, was in fact abusive, and, according to Dr K, potentially traumatic. 

14. Of greater importance is the significance of the conduct.  The varying degree of significance depends upon whether the conduct was sexually motivated. 

15. If the conduct was sexually motivated it points to a conclusion that the father harbours a deviant interest in X, carrying with it a corresponding risk that the father may act in a manner toward X that is fuelled by that deviant interest in the future.  This encompasses risks as to future sexual acts involving X.

16. If the conduct was not sexually motivated but rather flows from poor judgment and insight, it points to a risk that the father will continue to act in a manner that is so devoid of judgment and insight that it may result in further abuse of X and may compromise X’s development.  This risk is heightened where, as here, the father has failed to demonstrate the development of insight into the significance of his previous conduct toward X.

17. Taking this incident on its own (and it should be noted that this incident does not occur in isolation), in the face of denial by the father as to sexual motivation, it cannot be determined that the conduct was sexually motivated.  Similarly, it cannot be determined that the conduct was not sexually motivated, given the father’s focus on the genitals and commentary on his actions as giving pleasure to X through the touching of the genitals.

18. This conclusion, in accordance with the approach identified in M v M,[116] leaves open the question of deviance on the part of the father as a factor to be considered in the assessment of whether he places the children at unacceptable risk.

    [116] (1988) 166 CLR 69.

    Nappy change

19. Unlike the bath video the assessment of this incident includes the question of whether the incident occurred in the manner described by the maternal grandmother.  That is, did the father touch Y’s mons pubis while giving commentary as to the pleasure that it afforded Y?

20. The father accepts that he may have engaged in the changing of Y’s nappy in the presence of the maternal grandmother at the time alleged.  He accepts that his hands may have been close to the mons pubis, as might be anticipated in the changing of a nappy.  He further accepts that as part of the process he may have been tickling Y in an area proximate to, but not including her genitals, in order to make her laugh.

21. While some inconsistencies were identified in relation to aspects of the father’s evidence more generally, the extent to which the father admitted conduct means that caution should be exercised before rejecting his testimony.  For example, he volunteered that he had massaged X’s testicles on occasions other than depicted by the video.  But for this admission as to this occurring there would have been no evidence to sustain such a proposition.  Further, he admitted making the comments and engaging in the conduct described as sexualised in the presence of the children, as claimed by the mother.  His preparedness to admit such matters, which were otherwise heavily reliant on the testimony of the mother alone, again means that caution should be exercised before rejecting his testimony.

22. Pointing away from placing weight on such admissions is that they are made in a circumstance where the father, apparently, considers that there is little or no problem with such conduct in any event. 

23. Further matters indicating caution arise from the nature of the descriptions given by the father and the maternal grandmother.  Where the father concedes tickling Y in an area proximate to her genitals, and the allegation is the rubbing of the mons pubis, it can be anticipated that the allegation may arise as a product of misapprehension or mistake on the part of the maternal grandmother.  When the odd manner of the allegation coming out, being delayed before reported to the mother, is also factored in, there is good reason not to simply reject the father’s account.

24. However, that is not the same as rejecting the account of the maternal grandmother for the purposes of the analysis identified in M v M.[117]

    [117] (1988) 166 CLR 69.

25. There is also good reason not to simply reject the account of the maternal grandmother.  Although there is some oddity in the delay in the making of the report to the mother it must also be recognised that the circumstances described by the maternal grandmother were not easy to navigate.  The oddity in reporting is not sufficient to cause a rejection of her testimony.

26. This leaves the massaging of the mons pubis as an open question, neither established nor rejected on the balance of probabilities.  This is a significant matter as, given the similarity to the bath video incident, if the incident did in fact occur as described by the maternal grandmother it points to deviance on the part of the father.

    Sexualised conduct

27. The conduct that was alleged to be sexualised was admitted by the father.  Considered individually, or even as a cluster of behaviours, they attract limited weight in the consideration of risk.  They are ambiguous to the extent that they do not point to sexual interest on the part of the father.  Considered in isolation from other matters they, at worst, point to loose boundaries and poor judgment that has the potential to compromise the children’s development.  This potential is rendered stronger by the lack of insight into the impacts of the behaviour demonstrated by the father.

28. When they are not considered in isolation, but in the context of the open questions of deviance, they take on a stronger weight.  In the context of potential deviance, they also raise questions as to grooming of the children flowing from a deviant interest.

    Erection

29. Key to the consideration of this incident is the question of whether the father in fact experienced an erection as described by the supervisor.

30. To combat such a finding the father denied that he had experienced an erection and proposed a basis on which the supervisor could be mistaken.  That explanation did not, however, neutralise the observations of the supervisor.  Her task was to supervise.  She was neither an observer who was interested in the outcome of the proceedings, nor a merely casual observer.  The supervisor was engaged to observe the visit, and so was specifically focussed on the conduct of the father.

31. The supervisor was measured in her response to what she reported, and did not jump to the worst conclusion that the father’s presentation related to Y.  She took prompt and careful steps acting upon what she perceived.  Further, she was able to differentiate between what was depicted in the re-enactment photos and what she had seen on the day.

32. Under those circumstances, I accept her evidence that what she saw was not what was depicted in the photos.  Accepting that evidence also means that I do not accept the allegation that the father obtained and maintained an erection for the purpose of the photos because, if he had done so, presumably the depiction would have matched what had earlier been observed by the supervisor.

33. This evidence is significant in that it is suggestive that the father has a deviant interest in children.  When considered in the context of the bath video or the nappy change incident, it is sufficiently suggestive of deviance to lead to a conclusion that the father presents a risk of harm to the children.  Even where it is established that the father massaged X’s testicles in the bath video, and experienced an erection during the supervised time with Y, the uncertainties as to the cause of the erection and as to the motivation or judgment of the father means that it is not established on the balance of probabilities that the father has a deviant sexual interest.  Neither, however, is deviance as a risk factor excluded, leaving the position that the risk to the children is to be assessed against the prospect that the father’s behaviour was the product of deviant interest.

    Night before separation

34. It should not be accepted that the father did something sexual to X the night before separation.  The evidence supports the conclusion that he did not as, on the evidence of the mother, there was little if any opportunity for something adverse to occur.  The mother’s vigil, accompanied by hearing the father fall asleep, undermine the notion that there was any significant opportunity for him to do something to X.  Further, it should not be accepted that the evidence of the injury or possible injury to the anus is an indicator that something occurred.  A conclusion that the father has or may have a deviant interest in children does not alter this conclusion.

    Amorphous trauma pre-separation

35. A conclusion that the father has acted in a manner to traumatise X prior to separation is reliant upon an inference drawn from X’s presentation.  X presents as a child who has suffered trauma.  There are, however, differential explanations flowing from alternative inferences.

36. Accepting that X presents as traumatised, such occurs in a context of the father’s potential deviant sexual interest, raising an inference that it may have a sexual explanation.  Another available inference, given X’s response to the father, is of some other form of trauma being experienced by X, sourced in the father’s conduct.  These were preferred by Mr C as the best explanations for X’s presentation, although a further alternative presents itself in what was described as the emotional contagion explanation.

37. Although not initially accepted as a viable explanation, Mr C accepted that the degree of distress on the part of the mother that X was exposed to may explain X’s response.  However, such an explanation, whilst still available, is undermined by X’s trauma response pre-dating date of separation.

38. On balance, being exposed to trauma of some form by the father, rather than emotional contagion, is the preferable explanation.

    Magnitude of risk

39. By virtue of the above assessment X and Y each face a suite of risks connected to the father.

40. Each of the children face a risk connected to the father’s potential deviant interest.  Such a risk persists even where the finding falls short of establishing deviance, as the matters that point to the conclusion of deviance raise the possibility of deviance as an explanation in a manner that is not negatived by other evidence.  That possibility raises risk to the children that the father may deal with them in the future in a manner driven or motivated by such deviance.  The risks flowing from such dealing covers a spectrum of behaviour, from a sexual touching of the children, to the sexualising of the children in a manner that compromises their development.  These risks are unacceptable, outweighing significantly any potential benefit from time with the father whilst they remain extant.

41. Sitting below that risk, and independent from risks flowing from deviance, are risks relating to poor judgment and poor boundary setting by the father.  This carries with it developmental risks for the children, and undermines the capacity of the father to benefit the children by virtue of relationship with him.

42. Further risks arise for X that are not at present a feature for Y.  Whilst Y appears to have enjoyed positive interactions with the father post separation, X’s reaction to the father raises the prospect of repeated traumatisation for X were he to spend time with the father.  This carries with it risks associated with the undermining of X’s relationship with the mother.  Repeated exposure to trauma would be deleterious to X’s wellbeing, and risk him being “broken”.  Repeated trauma to X also presents a risk that is unacceptable, outweighing benefits that he may gain from time with the father whilst such risks persist.

43. Risk also flows from the prospect of the children being subject to differing regimes in relation to the father.  Were one child to spend time with the father, risks flow to the relationship between the children, and also, for X, from the prospect that he is aware that Y is spending time with the father and is subject to risk from the father.

44. In order to alleviate risks flowing from deviance, further contact with the children would need to be mediated via professional supervision.  This necessarily limits the nature of the relationships between the father and the children.  No party contemplated orders that provided for therapy for the father as identified by Dr K, therapy which on her description would necessitate further assessment of the father as to whether it has been effective.  Absent assessment of whether the risk posed by the father has abated (for example as a result of engaging in therapy) such supervision could not be merely for a limited period.

45. It is understood that permanent orders for supervision are to be cautiously entered into.  In circumstances where the Court makes an order for ongoing or indefinite supervised time between the parent and the child, May J in Moose & Moose noted that “there would need to be cogent reasons to support such orders”.[118]

    [118] Moose & Moose (2008) FLC 93-375, [10].

1. The Full Court in Bant & Clayton observed the general proposition that

   It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider drafting orders which might avoid permanent supervision.[119]

   [119] Bant & Clayton (2019) FLC 93-924, [53] (Strickland, Ainslie-Wallace and Ryan JJ) (citations omitted).

2. However, their Honours noted that “[c]ircumstances may however arise in which the only appropriate response to the identified risk is to make an order, in effect, for indefinite supervision of a child’s time, if it is in the best interests of the child”.[120]

   [120] Bant & Clayton (2019) FLC 93-924, [54].

3. Here there is no basis on which a defined period of supervision could be specified.  The only means of protection would be indefinite orders.

4. However, even professional supervision is not sufficiently protective of X’s wellbeing.  X faces the prospect that if he is to spend time with the father he may well be repeatedly traumatised.  At present there cannot be a prediction that X will cope with such trauma, or adapt to it, or get past it.  It was conceded by Mr C that arrangements to spend time with X would require review which was a step that no party pursued.  Accordingly, even professional supervision carries serious prospects of harm to X that are not dependent upon any persistent risk that the father would do harm to X.

5. These protective considerations also inform the assessment of the benefits that X and Y may take from ongoing time.  Mr C identified generic benefits to children in having a relationship with a parent, even in circumstances where there has been abuse.  However, the degree of benefit for X would depend upon whether the experience was nourishing and positive.  There can be no expectation of such.  Further, the benefits of the relationship with either child would be limited by virtue of the limited nature of the interaction available, and also by virtue of the limited parenting capacity of the father connected to his lack of insight.  Benefits would also be countered by arrangements for the children to be dealt with differently for the reasons identified above.

6. This assessment of the risks occasioned to each of the children, and as to the limitations in the benefits that may flow from time with the father, leads to the conclusion that there should be no time with the father.  There can be no confidence that X would receive benefits.  It appears highly likely that he would be detrimentally impacted by spending time with the father.  Even if Y was protected by indefinite supervision (a position not pursued by any party), the benefits to Y are limited, and countered by potential adverse effects of treating the two children differently.

   CONCLUSION

7. Orders will be made for the children to live with the mother and for the mother to exercise sole parental responsibility for them.

8. Orders will be made for the children to spend no time with the father.

9. The ICL sought orders regarding the provision of information to the father regarding the children in the following terms:

   3. That no less than once per month, the mother send an email to the father containing details of the children’s wellbeing, including but not limited to:

   a. Developmental milestones reached;

   b. Any major decisions she makes regarding the children;

   c. Progress X has made regarding his psychological health.

10. This is an onerous obligation to cast upon the mother and, in the circumstances where the father will not be having time with the children, does not apparently advance their wellbeing.  Such an obligation should not be imposed upon the mother.

11. The father sought orders that would entitle the parties to each obtain information about the children from their schools and from treating practitioners.  Those orders were sought in the context of the father spending time with the children.  Benefit to the children of such orders under circumstances where he is not spending time with the children was, accordingly, not addressed.  In the absence of circumstances being identified to indicate that such orders benefit the children despite their being no time such orders will not be made.

12. The ICL sought orders compelling the mother to arrange for X to engage in therapeutic interventions as follows:

    4. That the mother do all acts and things necessary to engage X in relevant therapeutic interventions as recommended by his treating practitioners.

13. Such an order is not warranted.  The scope of any such interventions is not identified.  Further, the mother is to have sole parental responsibility and will be best placed to determine what advice should be followed in terms of interventions in relation to X.  She should not be constrained by injunction to take whatever advice she is given.

14. Finally the mother sought orders preventing the father from approaching the children, effectively buttressing the arrangements in the orders that he spend no time with the children. Where there is the spectre of trauma ensuing should the father approach X, and the need to maintain the same regime for both children for their mutual benefit, pursuant to s 68B of the Act it is appropriate for the welfare of the children that such order be made for the duration of their minority.

I certify that the preceding two hundred and seventy-nine (279) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       19 November 2021

SCHEDULE OF ORDERS SOUGHT

Orders sought by the Independent Children's Lawyer (Exhibit ICL3) 

(1)That the mother have sole parental responsibility for X born … 2017 and Y born … 2019 (“the children”). 

(2)That the children live with the mother. 

(3)That no less than once per month, the mother send an email to the father containing details of the children’s wellbeing, including but not limited to: 

(a)Developmental milestones reached; 

(b)Any major decisions she makes regarding the children; 

(c)Progress X has made regarding his psychological health. 

(4)That the mother do all acts and things necessary to engage X in relevant therapeutic interventions as recommended by his treating practitioners. 

(5)That the children spend no time and have no communication with the father.  

Orders sought by the applicant mother (Minute of Final Orders Sought 26 March 2021) 

(1)That the mother have sole parental responsibility for the children X born … 2017 and Y born … 2019 ("the children"). 

(2) That the children live with the mother. 

(3)That there is no order permitting for time or communication between the father and the children. 

(4) That the father be retrained from approaching the children. 

Orders sought by the respondent father (Case Outline Document) 

(1)That all previous parenting Orders be discharged. 

(2)That the Mother and Father have equal shared parental responsibility for the major long-term issues in relation to X born … 2017 and Y born … 2019 (“the children”). 

(3)That the children shall live with the Mother. 

(4)That the parties shall immediately engage Ms Z or such other suitable and available clinician (“the family therapist”) to provide family therapy to assist the parents with: 

(a)Facilitating the resumption of a relationship between X and the Father, including by providing the parties with such support or education as required. 

(b)Implementing the Orders made by the court. 

(c)Establishing effective communication as co-parents to discuss ongoing parenting matters. 

(d)Obtaining advice about parental co-operation and problem solving with respect to ongoing parenting matters. 

(5)That for the purpose of Order 4: 

(a)The parties shall individually meet with the family therapist forthwith, prior to the father’s time with the children per Order 6 commencing. 

(b)The parties shall attend any sessions as requested by the family therapist. 

(c)The cost of any joint sessions or any of the sessions involving the children shall be shared equally between the parties and the parties shall otherwise pay for their own individual sessions. 

(6)That the children shall spend time with the Father as follows: 

(a)Commencing immediately for a period of 4 weeks: 1 hour each week in the presence of the family therapist, at a location as recommended by the family therapist or such additional time with the family therapist as recommended by the family therapist and agreed between the parties. 

(b)[not being sought] 

(c)Thereafter, for a period of 8 weeks, as follows: 

(i)Each Monday, Wednesday and Saturday: for 4 hours each at times to be agreed but failing agreement, from 10am to 2pm. 

(d)Thereafter, for a period of 8 weeks, as follows: 

(i)Each Monday and Wednesday: for 4 hours at times to be agreed but failing agreement, from 10am to 2pm. 

(ii)Every second weekend: from 10am to 5pm Saturday and from 10am to 5pm Sunday. 

(e)Thereafter, for a period of 12 weeks, as follows: 

(i)Each Monday: from 10am to 5pm. 

(ii)Each second weekend: from 10am Saturday to 10am Sunday. 

(f)Thereafter, for a period of 12 weeks, as follows: 

(i)Each Monday: from 10am to 5pm. 

(ii)Each second weekend: from 10am Saturday to 5pm Sunday. 

(iii)During each school holiday period, the regular weekend time shall be extended to occur from 9am Friday to pm Monday. 

(g)Thereafter, until 1 July in the year that X commences kindergarten, as follows: 

(i)Each Monday: from after school or 3pm to 7pm. 

(ii)Each second weekend: from after school or 3pm Friday to 7pm Sunday. 

(iii)During each school holiday period, the regular weekend time shall be extended to occur from 9am Friday to 7pm Tuesday. 

(h)From 1 July in the year X commences kindergarten, as follows: 

(i)Each Monday and Wednesday: from after school or 3pm to 7pm. 

(ii)Each second weekend: from after school or 3pm Friday to before school or 9am Monday. 

(iii)During each school holiday period, the regular weekend time shall be extended to occur from 9am Friday to 7pm Wednesday. 

(i)From 1 July in the year Y commences kindergarten, in a rotating pattern as follows: 

(i)In week 1: from after school or 3pm Monday to before school or 9am Tuesday. 

(ii)In week 2: from after school or 3pm Friday to before school or 9am Tuesday. 

(iii)During each school holiday period: half of the holiday period on a week about basis with changeover on a Friday at 3pm. 

(j)After 12 months from the above order, the parties shall attend mediation to discuss future arrangements for the children. 

(7)That notwithstanding any other Orders, the children shall spend time with the Father on special occasions, as follows: 

(a)For the Father’s birthday each year: in the event of a non-school day, from 10am to 5pm and in the event of a school day, from 3pm to 7pm. 

(b)For Father’s Day each year: from 10am to 5pm. 

(c)For Easter: 

(i)In 2022 and each alternate year thereafter: from midday Easter Saturday until 5pm Easter Monday. 

(ii)In 2023 and each alternate year thereafter: from 3pm Maundy Thursday until noon Easter Saturday. 

(d)For Christmas: 

(i)In 2021 and each alternate year thereafter: from noon on Christmas Eve until 5pm Christmas Day. 

(ii)In 2022 and each alternate year thereafter: from 5pm Christmas Day until 5pm Boxing Day 

(8)That if either X or Y become distressed whilst in the Father’s care, and the Father is unable to settle them, then the Father will contact the Mother and return the children to the Mother if they continue to be unsettled in his care. 

(9)That the children shall have Facetime/Skype/other video or phone time with the parent that does not have care of the children each evening between 6.30pm to 7.00pm, and the parent that does have care of the children shall ensure that the children are available to receive such calls. 

(10)That changeovers shall take place at the children’s day care where possible or, if the children are not at day care at the time of changeover, then the Father shall collect the children from the Mother’s residence at the commencement of the children’s time with him, and the Mother shall collect the children from the Father’s residence at the commencement of the children’s time with her. 

(11)That until such time as both children are attending primary school, the Father shall reimburse the Mother for any out-of-pocket childcare absence fees associated with his time with the children under Order 6. 

(12)That each parent shall advise the other parent of any change to their telephone number, email address or residential address within 24 hours of such change. 

(13)That each part parent shall advise the other as soon as practical by the best available means in the event of the following occurring: 

(i)The children being seriously injured or falling seriously ill; 

(ii)The children requiring urgent medical treatment by a doctor and/or ambulance crew; and/or 

(iii)The children being admitted to hospital. 

(14)That each parent shall keep the other informed of the names and addresses of all medical practitioners, general and special dentists, and other health professional persons involved with the children. 

(15)That each parent be at liberty to obtain any information relating to the children from any day care or school that the children attend upon, including copies of reports, progress reports, notices relating to pupils attending school, letters to parents, invitations to any carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews, any other notices directed to the parents of a child attending school and service of a sealed copy of these Orders is sufficient authority for this purpose. 

(16)That each parent be at liberty to obtain all records and information from the children’s medical and dental practitioners and any other treating professionals and service of a copy of these Orders is sufficient authority for this purpose. 

(17)That during the time the children are with each parent, that parent shall: 

(a)Speak of the other parent, their partner and family members respectfully. 

(b)Not denigrate or insult the other parent or other family members in the presence or hearing of the children and use their best endeavours to ensure that others are similarly behaved or else immediately remove the children from that environment. 

(18)That the parents are hereby restrained from discussing these proceedings and the family violence proceedings with the children or in the presence of the children. 

(19)That the Father shall forthwith undertake a Circle of Security parenting course.