Elrasheed and McGrieve

FAMILY COURT OF AUSTRALIA

ELRASHEED & MCGRIEVE

[2014] FamCA 11

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption is rebutted – Where it is in the child’s best interest that the parents have equal shared parental responsibility – With whom the child lives – With whom the child spends time – Where there have been allegations of sexual abuse – Risk – Where the child is not at unacceptable risk in her father’s care.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Marsden & Winch (No 3) [2007] FamCA 1364
N & S (1995) 19 Fam LR 837
W & W (2005) 34 Fam LR 129

APPLICANT:

Mr Elrasheed

RESPONDENT:

Ms McGrieve

INDEPENDENT CHILDREN’S LAWYER:

Leanne Walsh

FILE NUMBER:

BRC

12662

2007

DATE DELIVERED:

17 January 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

1 & 2 November and
4 December 2012

REPRESENTATION

FOR THE APPLICANT:

Mr Elrasheed in Person

FOR THE RESPONDENT:

Ms McGrieve in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

Orders

That all previous parenting Orders are discharged, save for any Orders restraining either parent from taking the child, L born … March 2006 (“the child), out of the Commonwealth of Australia and save for any Orders placing the said child’s name on the Airport Watch List maintained by the Federal Police at all points of international arrivals and departures in Australia.
That the mother and the father shall have equal shared parental responsibility for the major long-term issues in relation to the child, as that term “major long-term issues” is defined in s 4 of the Family Law Act 1975.
That in respect of decisions about those major long-term issues in relation to the child, having regard to paragraph (2) of these Orders and the provisions of s 65DAC(2) of the Family Law Act 1975:
(a)Each parent shall inform the other parent about the decision proposed to be made;
(b)Each parent shall consult with the other with a view to reaching terms upon which they may agree; and
(c)Each parent shall make a genuine effort to come to a joint decision with the other parent.
That the child shall live with the mother.
That the child shall spend time with the father as may be agreed between the mother and the father and, in default of agreement, as follows:
(a)from 9.00 am until 1.00 pm on Saturday, 25 January 2014 and Saturday, 26 January 2014;
(b)from 9.00 am until 5.00 pm on Saturday and Sunday 8 and 9 February 2014; and 15 and 16 February 2014;
(c)from 9.00 am on Saturday, 22 February until 5.00 pm on Sunday, 23 February 2014; and then from 9.00 am Saturday until 5.00 pm Sunday each second weekend thereafter until the beginning of the 2014 June/July school holidays;
(d)from the June/July 2014 school holidays, for one half of the child’s school holidays in each year, provided she is back in her mother’s care at least one clear day before the start of school in the next term on each occasion, with the child spending the first half of the holidays with the father in 2014 and even numbered years thereafter and the second half of the holidays with the father in 2015 and odd numbered years thereafter;
(e)from the start of school after the June/July 2014 school holidays, from after school on the Friday until before school on the Monday on the first weekend of every school term and then every alternate weekend of school term thereafter and if the Monday following such a weekend is a Public Holiday then until before school on the Tuesday after the Public Holiday;
(f)if Father’s Day does not fall on a weekend that the child is to spend with the father otherwise pursuant to these Orders then from 5.00 pm on the Saturday before Father’s Day until before school on the Monday after Father’s Day;
(g)if the child is not spending anytime with the father on her birthday otherwise pursuant to these Orders then from after school until 6.30 pm on her birthday if it is a school day or from 9.00 am until 1.00 pm on her birthday if it is a weekend day;
(h)if the child is not spending anytime with the father on his birthday otherwise pursuant to these Orders then from after school until 6.30 pm on his birthday if it is a school day or from 9.00 am until 1.00 pm on his birthday if it is a weekend day.
That if the child is with her Father otherwise pursuant to these Orders on the weekend that Mother’s Day falls, she shall return to live with the mother on that weekend at 5.00 pm the day before Mother’s Day.
That the child shall spend no less than from after school until 6.30 pm in her mother’s care on the mother’s birthday if the mother’s birthday is a school day and no less than from 9.00 am until 1.00 pm on the mother’s birthday if the mother’s birthday is on a weekend day.
That if the child’s birthday falls on a weekend that she is to spend with the father pursuant to these Orders, she shall return to the mother’s care from 9.00 am until 1.00 pm on that day.
That changeovers from the mother’s care to the father’s care and from the father’s care back to the mother’s care, shall take place at McDonalds Family Restaurant at Suburb A on Saturdays and Sundays and during school holidays but when the child begins to spend time with the father from after school on a Friday to before school on a Monday the child shall be collected from and returned to her school.
That in respect of calculating the child’s holiday time with the father in the school holidays, school holidays shall be deemed hereby to commence at midday on the day following the last day of the school term and shall conclude at midday on the day immediately prior to the first day of the following term and if there is an uneven number of nights during the holidays, then the father’s half shall include the additional night.
That the child shall communicate by telephone with the parent with whom she is not at the time:
(a)Each Monday, Wednesday and Friday between 6.00 pm and 7.00 pm, with the non-resident parent to initiate the call to the child and the resident parent to ensure that she takes the call and is given privacy to speak with the other parent at that time; and
(b)At all such other times as the child requests.
That by this paragraph of these Orders, each parent irrevocably authorises any person or institution, including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) reasonably requested by the other parent in relation to the child that they are lawfully able to release.
That each parent shall be entitled to attend any public or school social, sporting or educational event involving the child that parents are welcome at, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and each parent shall inform the other parent of such events in a timely manner and communicate arrangements that are made for the child to attend such events.
That each parent shall keep the other parent informed as to his or her residential address, landline and mobile telephone numbers, work telephone number, and email address, and shall advise the other parent of any change to any of those details within 48 hours of any such change.
That the parents shall communicate with each other by email and or SMS text message in the first instance and by telephone if necessary.
That in the event that the child requires any medical or hospital treatment, the parent then caring for the child will immediately inform the other parent of such necessity, including with details of the name and contact details of the hospital and/or treating medical practitioner.
That in the event that the mother considers unilaterally withholding the child from spending time with her father in accordance with these orders because the child is sick, she shall only actually withhold her from such time with her father with the father’s agreement or on medical advice that the child is actually too sick to go to spend time with the father and, if the mother does obtain such medical advice, she is to obtain a note from the medical practitioner to that effect and provide the father with a copy of that note as soon as practicable after the decision to withhold time with the father has been made.
That the father shall provide the child with her own bedroom during the time that she spends with him pursuant to these Orders.
That the mother and the father are restrained from abusing each other verbally or in writing.
That the mother and the father are restrained from denigrating the other parent or any other member of the other parent’s family to the child or within the child’s hearing.
That the mother and the father are restrained from talking to the child about these Court proceedings including these reasons for judgment.
That the child shall, as soon as it can be arranged to commence, attend upon a counsellor selected by the Independent Children’s Lawyer for non-reportable, confidential counselling on her own, or, at the discretion of the chosen counsellor, with either or both of her parents, and such counselling shall, to the extent that it cannot be arranged to take place pursuant to a Mental Health Care Plan on GP referral, be paid for by each of the parents in equal shares.
The mother shall ensure that the child attends upon such counselling appointments as directed by the Independent Children’s Lawyer or the counsellor and such counselling shall continue until the counsellor determines that it is no longer necessary.
The Independent Children’s Lawyer shall provide to the selected counsellor copies of all three of Ms B’s family reports produced in this matter and a copy of this judgment.
The Independent Children’s Lawyer shall, in conjunction with Ms B or by herself, inform the child, either in person or by telephone (at the ICL’s discretion), of these Orders and how they will apply to her.
That after the Independent Children’s Lawyer has completed the tasks assigned to her by paragraphs (22)-(25) of these Orders, she shall be discharged.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: BRC 12662 of 2007

Mr Elrasheed

Applicant

And

Ms McGrieve

Respondent

REASONS FOR JUDGMENT

The Applicant Father and the Respondent Mother in this parenting orders dispute are the parents of a little girl, 7 year old L born in March 2006, (“the child”). The child lives with her mother and has done since her parents separated when she was only about 18 months old. The very short marriage of the child’s parents was highly conflicted and their parenting relationship since their separation has been no different.
The Father’s relationship with the child has been highly restricted since the child has lived with her mother, both through actions of the Mother and by court orders. In fact, for the last couple of years, the child’s time with her father has been limited only to visits at a child contact centre, supervised by independent centre staff.
The Father seeks orders from the Court that the child live with him, with her time with her mother to be restricted. The Mother seeks orders that the child continues to live with her and continues to have limited, supervised time with the Father.
Central to the determination of the dispute is the Mother’s case that letting the child spend unsupervised time with her father would expose her to an unacceptable risk of sexual abuse by him. The Mother presents a case that the child has probably been sexually abused already in her father’s care, by someone, most likely the Father. The Father denies the allegations and says the fact that the Mother makes them is indicative of her poor attitude to the importance of his relationship to the child and that, consequently, the child’s best interests would be served by moving her to his full-time care.
Neither parent was legally represented in the three day trial that I heard in November and December of 2012. Of course, that made the trial a more difficult process, but the Court was fortunate to have the assistance of an experienced Independent Children’s Lawyer who instructed experienced counsel for the trial.
At the end of the trial, Counsel for the ICL submitted that the Court should be satisfied that the child will not be at an unacceptable risk of abuse spending time in her father’s unsupervised care and that orders should be made providing for her to start spending time with him on an unsupervised basis, daytime only for a couple of weeks, progressing to overnight stays each alternate weekend.
Ultimately, I accept that submission of the ICL and determine that the child is to start spending unsupervised time with her father, satisfied that she will not be at an unacceptable risk of sexual abuse in his care.

The Relevant Background

The Father was born in the Middle East in 1964, the youngest of nine children. He left his country of birth age 15 and worked in various countries around the world before coming to Australia to study and live in 1999. He brought with him from Southeast Asia his first wife and their two young daughters. He is a well-educated man, having a Bachelor’s degree and two Master’s degrees, completing the Master’s degrees in Australia. He separated from his first wife and moved to Brisbane in late 2004/early 2005.
The Mother was born in 1961 in Eastern Europe. She studied at a university in her home country and worked in a financial position there. She had a child when she was 25 years of age but did not live with the child’s father. She and her son lived with her parents. When she was 38 years of age, she married an Australian man she had met through an internet match-making website and she and her then 13 year old son came out to live in Brisbane Australia. That was also in 1999. She and her Australian husband, who she asserts was violent to her, separated after only two years.
The Father and the Mother also met through an internet match-making website. They met here in Australia, seemingly at or around the time the Father separated from his first wife, and that is what prompted him to move to Brisbane. The Father and the Mother moved in to live with each other in rental premises only four days after actually meeting each other, in February 2005. For each of them, English is only a second language and each speaks English with strong accents marked by their first languages. Neither can speak the other’s first language.
There is interesting disagreement between them about the circumstances of their marriage. The Father is of the Islamic faith. The Mother is not. There is no dispute that the Father and the Mother were involved in an Islamic ceremony on … September 2005, which the Mother says she believes was an Islamic marriage ceremony. However, they went to a Mosque and signed papers to do with marriage, including an Australian Marriage Certificate, on … May 2006. That is the day that the Father says they married and that their marriage is recorded as having occurred. He says that the ceremony in September 2005 was a ceremony in which the Mother accepted conversion to the Islamic faith. The Mother does not agree. She says she did not convert to Islam. She says that the Father was not lawfully divorced from his first wife until May 2006 and that is the reason why their marriage is only recorded as having taken place on … May 2006. Of course, it does not make any difference to these proceedings, but the factual circumstances around this issue and the different positions adopted by each of them highlight the cultural, religious and language divide that existed when they began their relationship.
Into that divide, came their little girl, the child L. She was conceived very soon after they began living together and was born in March 2006. The Mother gave up employment and began to care for the child full-time. The Father worked in an education role and also as a carer. The Mother’s adult son, then aged around 20 and working in the IT industry, lived with the parties.
At some point in 2007, the Mother’s mother, then a widow, came out from Eastern Europe to spend time with the Mother and the family. She also lived in the same home as the family, but, as I understand the evidence, could not communicate very well with the Father due to their not speaking a common language.
At that time, the Father also had his two daughters of his first marriage visiting and staying with the family during their school holidays. This would generally involve the family driving to Northern NSW to collect them and returning to Brisbane or some other holiday destination for a period of time with the girls.
The relationship between the Mother and the Father, from the account of both parties and the Mother’s adult son, does not appear to have ever been a good one. It seems that the Father’s attitude to gender based roles in the marriage, including in respect of parenting, was fairly inflexible and quite at odds with the Mother’s own attitudes and expectations. Conflict emerged early in the relationship and reached a point during the time that the Mother’s mother was staying with the family, that the relationship broke down completely. The parties separated under the one roof some time in or around July/August 2007. The Mother, her adult son, her mother and the child moved out of the home they all shared with the Father in or around early October that same year.
I accept the evidence that the Father was verbally abusive of the Mother, particularly in the time leading up to their separation. The Mother alleges that he even threatened to burn her alive if she was not gone from the home when he got back from work one day just prior to when she left the home, at the height of their separation conflict, during the period when they were separated but still living in the same home. The Mother says that threat is what prompted her to move out of the house. Although the Father denies having made that threat, I accept that he did make it, or, at least, some threat like it. Such a threat is violent, intimidating, selfish, inconsiderate and stupid. It could only be productive of extreme fear and loathing on the part of the person to whom it was directed. Failure to acknowledge having made such a threat and to have expressed sorrow and remorse for having made it, exacerbates the damage done by the threat. The Father could hardly be surprised that the Mother’s feelings towards him have not softened in the period between then and the trial of this matter in late 2012, in such circumstances, particularly when his verbal abuse of her, in the foulest, most disgusting language, has continued from time to time during that period.
However, one consolation is that the Mother (nor her adult son) gave no evidence that at any point in the relationship between her and the Father did the Father commit any physical violence to her, her mother, her son or their baby girl. Apart from there being evidence of the Father using abusive language to the Mother in their interaction post-separation, and of some intimidating and harassing remarks having been written on the Mother’s door in that time (by an unknown person), there is no evidence that the Father has actually threatened the Mother with physical harm since the separation. I am satisfied, as unacceptable as it was, that the threat to burn the Mother was made by the Father in the height of their separation conflict and is not something that he actually had intent to act upon when he made it.

Indeed, post-separation, the Mother brought an application for a protection order pursuant to State family violence protection legislation and, after a trial in the Magistrates Court, the application was refused. Although the Magistrate found that the abuse the Father had levelled at the Mother in an email that he had sent to her constituted domestic violence, it was found that it was not likely that domestic violence would continue to occur in the future in the circumstances of this case. I have seen no evidence in this case that causes me to determine that outcome was wrong.
When the mother and the others moved out of the home in October 2007, it was all done whilst the Father was at work one day, although, as I discern, not the same day that the Father had made the threat referred to above. The Father did not know it was going to happen and when he got home from work, all were gone, as were virtually all the possessions in the home.
The Mother and her son secured another rental home suitable for them and the child to live in at that time but did not reveal to the Father their whereabouts. The Mother did not contact the Father and she made no arrangements for him to see or spend any time with the child, then 18 months old. The Mother’s mother left Australia and returned to Eastern Europe at that time also, so she was no longer living with them.
The Father applied almost immediately to the Federal Magistrates Court (as it then was) for Information and Location orders as well as for orders that the child live with him. At the same time, the Mother had prepared an application to be filed in the Court seeking orders that the child continue to live with her and only spend time with the Father under supervision at a children’s contact centre. Her case then was based on assertions that the Father could not safely parent the child on his own.
When the Father’s application first came before the Court, it became clear that the Mother was legally represented and had tried to commence proceedings herself. Accordingly, no Information or Location order was made and the matter was adjourned to 12 February 2008. The child spent no time with the Father at all in the meantime. The parties disagree about whether or not telephone communication between the Father and the child took place but, in any event, telephone communication with a child not yet 2 years of age could hardly be satisfactory to either the child or the parent.
When the matter came before the Court on 12 February 2008, it was adjourned to 15 February 2008 to enable enquiries with a children’s contact centre to be made about times the child could spend with the Father. On 15 February, 2008, orders were made that the parties have equal shared parental responsibility for the child, that she spend supervised time with the Father at the C Contact Centre, that the Mother be restrained from taking the child out of the country, that she be put on the airport watch list, and that the matter be set down for trial on 23 May 2008, but mentioned again on 18 April, 2008.
When the matter was back before the Court on 18 April, 2008, the Father had still not seen the child as time at the contact centre had not yet commenced. That was six months that he had not seen her. The trial date set for May was vacated. The child’s time with the Father at the contact centre was to commence on 4 May, 2008 and the first family report from experienced psychologist and report writer, Ms B, was ordered to be prepared. It was noted that the Mother had commenced property adjustment proceedings as well and the Father was directed to file an amended application and Financial Statement for the property proceedings and a conciliation conference date was set.
Ms B saw the parents and the child at her offices in Brisbane on 1 May 2008. She observed the child and the Father together, knowing that it was the first time that the two of them had spent together since the parents had separated the year before. Ms B observed that the child presented as a normal two year old child who was well nurtured and securely attached to her mother. She observed that the child coped well with her first contact with her father for a long time and showed some signs of remembering him. She later observed that the “most urgent need” was for the child to re-establish her relationship with her father in “safe and supportive surroundings” and that this process should have already started to occur at the C Contact Centre as ordered. Ms B also observed that the parents would need considerable assistance in resolving their religious and cultural issues. She recommended that the child continue living with her mother and spend as much time as was possible with her father under the supervision of contact centre staff with review to take place after three to six months with a report to be supplied by the staff at the contact centre.
On 26 May 2008, the Court ordered the appointment of an ICL and adjourned the matter to a date in July. The matter continued to be adjourned and on 14 October 2008, an updated family report was ordered to be prepared by the Federal Magistrate (as she then was) in whose docket the matter was listed. The child’s time with her father continued to be supervised at the C Contact Centre for two hours each fortnight in that time, not all visits having occurred for various reasons, including the Mother asserting the child was too unwell to attend.
Interviews for the updated report were conducted by Ms B on 20 November, 2008 and her second family report issued on 23 February, 2009.
Ms B reported the Father as changing his preferred outcome to one of equal shared care as opposed to having the child live with him principally. The Mother, though, was reported to still be favouring the child only spending limited, supervised time with the Father at a contact centre on an ongoing basis until the child turned four or five years of age. This way, it is reported the Mother said, she could be sure that he spends “quality time with her” and she could be sure “he didn’t do something everybody will regret.” She also said that at that age the child would be able to “say something if she doesn’t like something”.
Ms B also reported that the Mother expressed concern that the Father had re-partnered with a woman from New Zealand he had met through the internet. The Mother was said to be concerned that the Father would continue to work excessively and leave the care of the child, if she was with him, to his new partner. She is also reported to have expressed views that the Father would not provide a stimulating home environment for the child and that he had poor parenting skills.
Ms B again observed the child in the company of each of her parents and also her adult half-brother. She noted that the child was fairly quiet throughout the time with her father but that she appeared relaxed and confident with him. Ms B said she had no cause for concern in relation to how the Father interacted with the child or how she responded to him.
The child was observed to be immediately comfortable in her mother’s presence, but just as quiet in her mother’s presence as she had been in her father’s. Ms B reported the child to still be virtually non-verbal in her interaction with both her parents and with her adult half-brother. She noted that contact centre staff had reported similarly. Ms B opined that this limited use of expressive language makes it difficult to gauge her attitudes and reactions and adds to the child’s vulnerability.
Ms B had the benefit of a written report from the contact centre staff as to the time the child had spent with the Father between May and September 2008. She noted from that report:
a)That the Mother’s behaviour at the centre was regarded as exemplary, although she was clearly anxious about the possibility that the Father might abscond with the child or tell her that she would soon be staying with him;
b)That the Father’s behaviour with the child was mostly age appropriate and responsible but some deficiencies were noted such as – not washing his hands or encouraging the child to wash hers after using the toilet, trying to force the child to be affectionate towards him occasionally, asking the child what street she lived in, talking to the child about what she would see when she went to his house, trying to take photos with his mobile phone when not allowed, and regularly being late to the centre;
c)That the child was reported as having gradually relaxed with the Father over the course of the visits, to the point of running to him spontaneously at the last session and throwing her arms around him on his arrival and hugging him tightly at his request on departure.
Ms B also interviewed Ms D, the Father’s new partner. She told Ms B that she and the Father had commenced a relationship over the internet in about October/November 2007 (very soon after the relationship between the Father and the Mother broke down). She had brought her son over with her to live with the Father in the first half of 2008. She supported the Father’s application to have the child spend time with her father at his home and elsewhere and said that she thought both she and the Father would look after her during such time. She was working part-time but had applied for a full-time healthcare position. She was positive about what she and the Father wanted together out of their family life.
Ms B reported on the fact that child support had been a hotly contested issue for these parents, suggesting that some consideration needed to be given to the fact that both parents could be heavily motivated in the dispute by financial factors.
Ms B ultimately recommended that the Mother be given sole parental responsibility for the child in relation to long term issues, a position I discern Ms B took because of her assessment that the parents were unable to communicate sufficiently well without embroiling the child in their conflict. Prefaced on the basis of the Court considering that there is no unacceptable risk to the child for her to have unsupervised time with the Father, Ms B recommended that the child start having unsupervised time with the Father, introduced through short periods of supervised time but moving to unsupervised time for two hour blocks at least once per fortnight, to increase over six to twelve months, until she is having six hours of unsupervised time with him each week or fortnight, with the Father being allowed to introduce the child to his other daughters and his new partner during these times. Telephone communication was not recommended due to the child’s largely non-verbal style of communication.
Those recommendations were given effect to in further interim orders made on 10 March 2009 but which included equal shared parental responsibility despite the recommendation for sole responsibility to be given to the Mother. Three hours of unsupervised time per week was ordered with changeovers to take place at the contact centre. The matter was listed for a trial over two days in June, 2009.
On the morning of the first day of the trial, 10 June 2009, the Mother and the Father and the ICL, all represented by counsel, agreed to the terms of final orders that were then made by consent. Those orders included equal shared parental responsibility, the child live with the Mother and that she begin spending unsupervised time with the Father for five hours each Saturday until the middle of October that same year, increasing to seven hours on three Saturdays in four until March 2010, increasing to overnight from 9.00 am Saturday to 9.00 am Sunday for three Saturdays in four until June 2010, increasing to 4.00 pm on those weekends from then.
It seems that the Mother’s feelings towards the Father and his parenting capacities, though actually not preventing her from consenting to these arrangements, had not really changed. From the very first time that the child went to spend time with the Father, the Mother was making diary entries in her own diary (Exhibit 6) and recording all of her observations and concerns about the child’s time with her father. On the Sunday morning after the second Saturday that the child spent five hours with the Father and his partner at their home, the Mother got so upset with the Father because the child woke up early in the morning, coughing and crying, that the Mother called the Father at 4:30 am to complain to him that the child was sick “once again after visiting him.” When the Father tried to call the Mother back on her mobile phone, the Mother refused to answer his call. He wanted to find out about the child’s condition. The Mother called back later but they did not get to speak about it.
The very next Saturday, the Mother recorded in her diary, amongst other things, the fact that the child had a nappy rash like irritation around her vagina when they returned home. Over the next few months, the Mother’s diary notes continue to record complaints and observations of things that concerned the Mother about the child’s care in the Father’s household, particularly times when the Mother said the child was sick soon after return to her care, which she clearly blamed on the Father. However, at around this time, the Mother also continued not to send the child to her Father’s home on the Saturday if she considered the child was too sick to go.
At this time, late October 2009, the Father’ partner, Ms D, gave birth to their baby boy, a new half-brother to the child L.
Poor levels of communication continued between the Mother and the Father but despite this, and some arguments about various aspects of the child’s visits to her Father’s home, some flexibility of timing was agreed upon, including the Father having some time additional to that ordered.
In March, 2010, the child started to sleep over at the Father’s home as per the Court’s orders. On the Sunday morning, after the Mother collected her from her father, the Mother’s diary records the Mother’s observations of the child’s behaviour and demeanour to a very fine degree.
The Mother’s diary records that on 21 March 2010, she proposed to change the sleepovers provided for in the orders from three in four weekends extending to 4:00 pm on the Sunday afternoon to every weekend, but only to 9:00 am on the Sunday morning. That day though, the Mother also recorded that the child slept from when she got home on the Sunday morning until 4:00 in the afternoon. The Mother wrote that she called the Father and asked him whether the child had slept during the night or if he had given her any medication. She recorded that he told her she had slept and that he had not given her any medication. She said nothing in her diary about any deeper concern about this. She said nothing about being so worried that she tried to rouse the child from sleep but could not do so. However, she gave evidence at the trial that she thought the child had been “drugged” and that she could not wake her at all on that occasion. Remarkably though, she had not been so concerned as to take the child for a medical examination, or to report it to a doctor, the police or child welfare authorities.
Later that week, the Father informed the Mother that he agreed with her proposed change to the pending sleepover arrangements and they signed a document that the Mother had drawn to give effect to that.
The Mother’s diary entries say nothing about it, but in her affidavit evidence for the trial, the Mother asserts that the child had been sleeping through the night without going to the toilet prior to March 2010 and had finished using nappies during the day from around the age of 3, the year before. The Mother asserts that the child started wetting the bed again after she came home from her sleepovers at the Father’s. She also asserts that the child started wetting her pants, persistently, during the day again.
Although I could see no reference to the matter at all in the Mother’s diary entries, she said in her trial affidavit that “on or around six or seven occasions following March 2010 (after [the child] started to do sleep-overs) she seemed to have difficulties sitting and walking”. The Mother said the child would complain straight away when she picked her up and put her in her booster seat, saying that “it hurts when I sit” and that it was her “bottom”. The Mother says that the child would refuse to sit during play or even during meal time and would rather lie down on the floor on her tummy. The Mother says that the child let her check her bottom a few times but she saw no abnormalities. She says other times the child refused to let her mother check her bottom trying to squeeze her buttocks to prevent her mother from checking. The Mother says that the child would tell her words to the effect of “stop asking me questions” and “enough talking” when the Mother asked her about this.
It troubles me greatly that there is no mention of this issue in the diary when so much other minute detail about the child is recorded. It also troubles me greatly that there is no record of the Mother ever taking the child for medical examination about this at the time it is alleged to have been observed.
The Mother goes on in her affidavit to say that in the same period after sleepovers started in March 2010, the child complained around 5-6 times about itchiness in her genital area. That is not mentioned in the diary either.
What is mentioned in the diary, and the Mother repeats it in her trial affidavit, is the assertion that on Sunday 11 April, 2010, the child “increased masturbation”. The Mother mentions observation of the child “pressing between her legs with her hands and rubbing her vagina.” She says in her affidavit she had noticed her “masturbating” before but not very much, but in late March/early April 2010 she observed this happening “approximately every day.” She says it alarmed her and by mid-April she noticed the child “would masturbate most of the time, especially if she thought that nobody was watching.”
She says later in April that the child’s “style of masturbating” had changed in movement. She says that she observed the child “breathing heavily, sweating and groaning in a very sexual manner” at this time, and she says this was a few times per day.
The Mother then says, in her diary and in her affidavit, that in May 2010 the child started asking her to put her hand on the child’s “bum-bum”, which the Mother says was what the child called her perineum. The Mother describes what was almost like a tussle between them, with the child said to be trying hard to put the Mother’s hand between the child’s legs and the Mother not wanting to. Curiously though, the Mother says nothing about asking the child any questions about where the behaviour might have come from.
The Mother then goes on to say that on 13 June, 2010, in the afternoon after she had come back from her father’s home, the child tried to kiss her on the lips with an open mouth. When she asked the child about this behaviour, she says the child said to her “a woman kissed me”, but when the Mother “tried to clarify” the child just shook her head. When she asked her some more questions about it the child, having nodded when asked if she had liked it, then went on to say “let’s not talk about it”.
The Mother then says that on 14 June, 2010, the child was watching a children’s cartoon on the TV, sitting on the couch next to the Mother, when she started moving her body like she was imitating a sexual act, thrusting her pelvis back and forward repeatedly and breathing heavily “in a similar way a women [sic] might do during sex”. The Mother says she asked her what she was doing and the child responded “nothing” and laughed and then covered her mouth with both hands. She then started doing it again. The Mother says she asked her again what she was doing and says the child again laughed and covered her mouth and refused to discuss it further.
The Mother says later that week she spoke with her counsellor at the Migrant Women’s Support Service who referred her on to some other organisations. The Mother says she then called Parents Helpline. She got more advice and referral to the Department of Child Safety.

The Mother says she also spoke to the group team leader at the child’s childcare centre, mentioned the masturbation to her and her concern for the child. According to the Mother the team leader reassured her that “all kids play with themselves” but promised to inform the Mother if they noticed anything unusual. Clearly, no one at the childcare centre had recorded having observed any such behaviour that troubled them at that point in time.
The Mother also says that on Friday 18 June 2010, the child started to tell her a story where her father was a big elephant. The Mother says she asked the child whether “we are all elephants” or, at least, whether her big brother was also an elephant. She says the child’s response was that only her daddy is a big elephant. The Mother says that when she asked the child what that means, the child said “enough talking” and “don’t ask me questions”.
On 19 June 2010, the Mother typed out a note to the Father. A copy of it is attached as Exhibit U to the Mother’s trial affidavit. The Mother said:
I would like to express my concern regarding [the child’s] recent behaviour. On Sunday and Monday, following your meeting with her, she was acting strangely, as something that can only be described as her imitating a sexual act. She also attempted to kiss me with her open mouth.
Do you know of anything that may have occurred that could affect her behaviour in such a way? I trust we both agree that this kind of behaviour is not quiet [sic] right or appropriate for her age, and that is why I ask you to please keep an eye on her.
The Mother says that at the handover that Saturday morning, she showed the Father that note and asked him to sign it to acknowledge that he received it and that he is informed about her concerns. The Father agrees that the Mother tried to get him to sign the note but says she did that without speaking to him about it or answering any of his questions about it. It is agreed that he refused to sign it and, according to the Mother, he said that he would not sign anything the Mother gave to him. The Mother then said to him words to the effect of “do I have to do it through a solicitor?” to which she says he responded “you can go to a solicitor”.
The Mother said that the Father then told her to get the child out of her car for him, to which the Mother said “as long as you do not want to acknowledge that here is a problem, child will stay with me and I will contact a lawyer.” She then got in her car and drove off to her home with the child. She says she called Parents Helpline on her return home and told them. She says the counsellor told her to call the Department of Child Safety on the Monday morning.
The Mother says on the Monday morning she called the Department of Child Safety, the Legal Aid Office and Centrelink to get advice and counselling for the child. The Mother says the Departmental officer she spoke with referred her to the Suburb E police station.
The Mother says she spoke to the police and was asked to bring the four year old child L to the station. The Mother says that the child was very shy and totally refused to talk to the police officers. The Mother says she was told that consequently nothing could be done. They referred her to counselling at Bravehearts and another place and, according to the Mother, told her to be concerned about the Father’s 13 year old step son who also lived in the home.
The police contacted the Father and spoke to him about the Mother’s concerns. The Father says he spoke willingly to the police and said he knew nothing at all about the concerns the Mother had raised.
The Mother says the police contacted her again on 22 June, 2010 and told her they had spoken to the Father. That same evening, the Mother says she took the child to a hospital as she was sick. She was diagnosed with an infection and rest was prescribed. She says that she made further calls that week seeking further advice.
The Mother and Father exchanged emails in which the Father communicated his expectation to be having the child in his care that Saturday and from then on in accordance with the original orders made by consent in the Court in June 2009. The Mother confirmed that the child would be spending time with him as expected.
That Saturday 26 June, 2010, the Mother delivered the child to the Father, who was accompanied by Ms D and, not surprisingly, a tense discussion occurred between them all. The Father was telling the Mother that whatever she wanted to put to him she should do through a lawyer and the Mother told him that the child had been sick and he needed to play quiet games with her. The Mother says she then told the Father that the child was going to counselling and that if “something will happen” to the child (presumably she meant whilst in the Father’s care) she would contact the police. The Mother says the Father then said to her that she could do whatever she wanted.
The Mother then says she went to a nearby shopping centre, called the Father’s home and after no-one answered she started looking for police officers to speak with. Apparently anxious, she called the Father’s house again a couple of times during the day. She could not get an answer at the Father’s home so she called him on his mobile telephone number. She says the first time, the Father hung up on her. The second time, she says he spoke with her and she asked where the child was. She says he told her she was with him and that she asked him to pass the phone to the child so that she could speak with her but that he refused, saying they were in a movie. They argued again about what information each was supposed to give the other and he hung up again.
The Mother says she immediately called Triple 0. She was referred to a Federal Police number and she called them. They reassured her that the child was on the Airport Watch List and they gave her another number to call so she could ask for a check to be done on the child’s welfare. The number she said she was given was a number for the Court when she rang it.
The Mother says she then got a call at 8.30 pm that same Saturday on her mobile. She says she could hear the Father’s voice but that the connection was bad. She says that she then called his land line number straight away. She asked him where the child was and he gave the child the phone and the Mother says she could hear the child was crying. The Mother says she asked the child why she was crying, was she hurting, and the child just kept crying. She then spoke with the Father again and asked him why the child was crying. In her trial affidavit, the Mother gives a version of the conversations that she says happened in those telephone calls that night. It is the same version as recorded in her diary entry for the day. Significantly though, the Mother recorded the telephone conversation when she rang the Father back for what clearly is the second of the calls she said she made to him at that time. She made it clear during the trial that she had recorded the telephone call and that was without the Father’s knowledge. The recording was called for and on the last day of the trial, the Mother produced it.
The audio CD of that recorded conversation was played and admitted into evidence as Exhibit 10 in the trial. I have listened to it a number of times, comparing it with the version of the conversation the Mother recorded in her diary and in her trial affidavit at page 52. Quite remarkably, given the Mother was the person possessed of the recording, with respect to one crucial aspect of the conversation, the version to which the Mother deposes is incorrect.
It is correct that the Father tells the Mother that the child is unhappy at his home that day. He tells the Mother that he considers the child’s unhappiness has something to do with something the Mother has said to her in the two weeks that she has not spent time with him. He tells the Mother, effectively, that he believes what the Mother is doing to the child amounts to child abuse. He tells her that he will be sending her an email the next day in which he will be asking her to provide him with certain information about the counsellor the child has been seeing and the name of the team leader at her child care centre so that he can seek information from them. What the Mother sets out as then being said, in paragraphs 877 to 880 of her trial affidavit, is not accurate.
The Father most certainly did not say “I am not going to return [the child] tomorrow or later. I want answers and I will not give child back unless I will find some.” The Mother did not then at that point remind the Father that he is to return the child tomorrow and that if he does not she is going to contact the Federal Police. The Father did not then say, “you can contact anyone, I do not care but I will not give child back because I have rights to keep her.” That is what the Mother deposes to as the conversation, but that is not how the conversation unfolded. The Mother has transcribed it wrongly.
I am satisfied, having listened to it, that the Mother has not only transcribed it incorrectly, but that she clearly misunderstood the intent of something the Father said to her. She misunderstood his words to mean that he was intending to keep the child when he did not say that at all and she has gone on from that point on the basis of that fundamental misunderstanding. The Father has not realised that she has misunderstood him and the matter has escalated, to the point of the Father hanging up on the Mother. He did not, I am satisfied, express any intent to hold onto the child that weekend as the Mother alleges.
The relevant part of the conversation went like this:
FatherI will send for you an email after a little while and I want you go over for me the name of the counsellor she is going to see – because I need to contact her to find out what is happening.
MotherFirst of all, you have to return child, tomorrow.
FatherNo you do not give me conditions. You have to…
Mother Excuse me, I am contacting Federal Police.
Father …First of all, second..
Mother I am contacting Federal Police. I already contacted them, they said if you will not return they will return it.
FatherYou contact the Police, you contact the Court, you contact whatever you want, you contact the Ambulance. It doesn’t matter to me.
Mother Really?
Father You understand?
Mother Really?
FatherYes
Mother So for you it is a matter only what you feel not what child feels?
FatherYou have to provide for me the name of the team leader that she goes to see, you have to provide for me the name of the GP. I am going to offer you an email and I expect a respond about it tomorrow.
MotherYou have no right to keep her. It’s illegal.
Father What?
Mother It’s illegal to keep child against….
FatherNo it’s not illegal.
Mother Yes it’s illegal.
Father No it’s not illegal
Mother Yes it’s illegal
Father I have Court order
Mother You have visitation rights. You have nothing else. You have no Court order you have visitation rights.
Father Do not waste my time. (The Father then hangs up)
The Mother then rang the Federal Police again. She rang the Child Abuse Prevention Service. She called the Queensland Police Service and she spoke to an officer in the Child Protection Unit who told her the police would do a welfare check on the child. The Mother says that the police called her back at 10:28 pm and told her that they had conducted a welfare check, that the child was seen sleeping, that she was fine and there was no concern about her immediate safety.
The Father says the police came to his house that night and saw that the child was sleeping. He sent the email to the Mother the next morning requesting the information he had told her he would be requesting from her. He returned the child to the Mother as per the Orders, that Sunday afternoon.
The Mother’s evidence is that the child was refusing to talk or communicate with her and that when she asked her if she wanted to talk about anything the child said “we will talk later”. Later, when she was more communicative she still refused to tell her mother how her time with the Father was and again said “we will talk later”.
The Mother said that the child then began asking her to press her “bum-bum” again, which she had not done for a couple of months.
The next week, 4 July 2010, when the Mother picked up the child from the Father, the Mother determined the child was unwell and took her to the Emergency Department at a hospital. The child was diagnosed with tonsillitis and sent home with lots of rest and fluids prescribed. A couple of days later, the GP prescribed antibiotics. At this time, the Mother says, the child told her that she was sleeping in the garage at the Father’s place. She says that the child began having difficulties sleeping from this time on. She also says that the child began exhibiting sexualised behaviours again, making movements like she was engaged in sexual conduct and trying to kiss with an open mouth again.
The Mother did not deliver her to the Father on 17 July, 2010 as the child was sick again.
The Mother began taking the child to Bravehearts counselling on 20 July 2010 and was referred on to another service after a few visits at the Gold Coast office of that organisation.
The Mother did not deliver the child to the Father on the weekend of 28 August 2010 because the child was sick again. In her trial affidavit, the Mother lists 9 occasions when the child is said to have been “unwell with a high fever after visiting her father”.
On 5 September, 2010, the Mother had a car accident on the way to collect the child from the Father. She arranged for her son to collect the child. She says that when she was getting the child ready for bed that night and putting a nappy on her (as she had been bed wetting at night), she noticed that her anus was red all around, and “like there was bruising and swelling all the way around it.” She says she noticed “red abrasion marks around her labia majora .. and a much darker red mark on her pronounced labia minora”. She says both her anus and labia looked like they had been rubbed very hard to the point of irritating the skin.
She says she asked the child “can you explain to me why it is red there?” She says the child responded “Daddy did something to my bum. It was strong, mummy, … I did not like it and I did not want it. Mummy, can you do this to me next time or can you help me to do that, because I really didn’t like it.” She says she asked her then “did he clean your bottom?” to which the child is said to have responded “no, it was not cleaning, it was something else.” The Mother said the child did not give any more details. The Mother says that she then started to shake and was not thinking clearly. She says she “took a photo of [the child’s] vagina and anus just in case.” She says she put Sudocrem on the redness and decided to check it in the morning. She did, and says she observed it still to be red but not as red as the night before.
The Mother says the next day she had a conversation with the child about the layout of her Father’s house and as to who slept in which room. She says nothing about asking the child any further questions of what the Father might have done to her. She says nothing about the child saying anything more about what might have happened to cause the irritation around her genitals.
The Mother says nothing in her affidavit about reporting this latest development to the police, the Department or anyone else, at least not until nearly ten days later. She says she spoke to her counsellor who referred her to some other services and only on 15 September did she first call the Department. An officer called her back the next day and spoke with her. There is no suggestion that there was any reference by the Mother to the photograph she says she took or any other steps discussed about investigating the matter further. She says she was told that she was expected “to act protectively towards the child” and that she “needed to keep [the child] safe under [her] care despite the Court order”. She says she sought advice from her solicitor who told her that she “did not have to send [the child] to her father if [the Mother] did not feel it was safe for her.”
On Friday 17 September 2010, the Mother sent an email to the Father telling him that the child would not be going to visit him until the Mother “got new instructions from [her] solicitor.”
The Mother says that on 22 September 2010, the child said to her “I want to eat your mouth.” The Mother says she asked her “why do you know how to eat mouth? Has anyone done it to you?” The child is said to have responded “my daddy and [F] ate my mouth but [Ms D’s given name] didn’t.”
The Mother says later in September she went to a doctor and asked for a medical check-up for the child and was referred to a hospital for same. She says she went to the Emergency Department at the hospital and asked for a medical check-up for the child and was told that they could only do such check-ups on direct referral from the Department or from the Police Service. The Mother says she was contacted by the hospital social worker the next day and asked some questions about the matter. The Mother details in her trial affidavit efforts that she says she made to have further investigations done.
She says that a female police officer came to her home on 22 October 2010 to interview the child, who was 4½ years old at the time. The Mother was not present during the interview but says the child apparently changed the subject every time her father’s name was mentioned. The Mother says the police officer told her that a medical examination could be arranged but that it would, itself, be traumatising for the child and would “not prove anything unless she also says something to them in support.” The Mother says she decided not to go ahead with the medical examination. The police officer wrote a letter which the Mother exhibits to her affidavit, in which she confirms she attended and conducted an interview and determined there was insufficient evidence to substantiate any offence.
The Mother did not let the child see the Father again and in mid-March 2011, the Father commenced contravention proceedings in the Federal Magistrates Court. In June 2011, the matter was transferred by the Federal Magistrate to this Court and then designated as a Magellan List matter.
The Mother says she then sent the Father an email telling him the child was available for phone conversations every Tuesday and Thursday evening. She says that the Father called and spoke with the child on 21 June 2011 and said inappropriate things to her about soon staying in his house for “a very long time.” She says that she then noticed the child immediately lie down in front of the TV and begin to masturbate, sweat and breathe heavily. She says the child’s behaviour reverted to bed wetting, further “masturbation”, fingernail biting, and biting the palms of her hands.
A different ICL had been appointed by this time. She arranged for another updated report to be prepared by Ms B. The parties and the child were seen again by Ms B on 1 November 2011 and the Father was seen again by her on 17 November 2011 as he had been late on the first day.
The Father’s contravention application came before me in December 2011. I heard it and dismissed it and suspended the existing applicable orders of 10 June 2009. I also ordered that the child start spending time with the Father, supervised, at a children’s contact centre and continue to have telephone communication with the Father. The Father had not seen the child since September 2010.
There were difficulties with the parties getting into a children’s contact service and the first supervised visit did not commence until March 2012. They have been happening on a fortnightly basis ever since.

The Further Updated Report of Ms B

Ms B’s third report dated 18 January 2012 was filed on 28 February 2012. At the time she interviewed the family again, the child had not spent any time with the Father for over 14 months.
Ms B arranged and observed a session of the child together with the Father. She reported that she observed “a most affectionate and emotive reunion.” She saw the child “spontaneously hug” her father and “melt into his arms” with her arms around his neck. His responses to her were considered to be absolutely appropriate by Ms B. The child engaged the Father in conversation and responded to his questions about school and she delighted in sounding out words from the alphabet book that she chose to read with him. Ms B assessed her as very relaxed with her father and clearly enjoying her time with him. She noticed no resistance and proffered the opinion that the child is attached to her father and that they have a warm and affectionate relationship. Ms B opined that the Father seemed genuinely pleased to be able to spend time with his daughter. He was observed to tell the child that he loved her and she told him that she loved him too.
Ms B reported on her observations of the child with the Mother too. She reports that when the child’s voice rose above just over a whisper, the Mother told her “Shhh. Shhhh”. She opined that the child appeared to “be constrained somewhat in her relationship with her mother.”
Ms B spoke to the child alone too. The child was 5 years and 8 months old at that time and going to school. She was asked if she knew why she was not seeing her father to which she is reported to have responded that she saw him when she was four and that when she used to go to see him he would “do his own work” whilst she played with her toys. She was asked if she liked Ms D and she responded “unreservedly (Ms [B’s] word), yes.” When she was asked if she wanted to see her father that day (this was before she had seen him) she is reported to have smiled broadly and nodded, seeming excited.
After she saw her father, she told Ms B it had been “good” to see him. Ms B asked her if she wanted to see her father again and she then immediately said “I want to see him at his house.” She said she liked to see her baby brother and wanted to “see him at [her] daddy’s house.” She told Ms B that at her mummy’s house she sleeps in her mummy’s bed and at her daddy’s house she had slept in her own room, going into her daddy’s room when she cried. Ms B asked her if her father looked after her then and she said “yes.”
Ms B asked her if there was anything scary at her father’s house to which the child said in a very definite fashion “no, there is nothing scary at Daddy’s house.” Ms B asked her if her mother thought there was something scary at her father’s house and the child repeated “nothing was scary at Daddy’s house.”
Ms B opined that the child is an intelligent and serious little girl who spends a lot of time thinking. She has views and expresses them. Ms B was of the opinion that the child wants to be close to both her parents and was missing her father terribly at that time. Ms B said:
I gained the impression that she was not being fanciful when she said that he had never hurt her.
Ms B referred to a document that the Mother had presented to her that was headed Summary and Understanding of the Present situation. She said that the document, written by the Mother, said little about the Father’s relationship with the child and was “basically a character assassination of [the Father].”
Ms B reported that she had seen a Magellan Report prepared by the Department for the Court. She noted that the Department had undertaken a number of investigations on receiving notifications of child protection concerns and had not arrived at any conclusions that the child had been sexually abused. She particularly noted that investigations conducted at the child’s day care centre in mid-2010, again around October 2010 and again around April 2011, provided no “reason to believe that the child was displaying any sexualised behaviours or other evidence of being sexually abused.”
Ms B concluded her report by expressing some further opinions. She observed that it is highly significant that the child was completely relaxed with her father and appeared to be relieved in his presence and had nothing negative to say about him, particularly considering the allegations the Mother has made about the Father and the concerning behaviours and emotional responses the Mother has said she has observed which she attributes to “an abusive relationship with the Father.” Ms B says she did not observe a father-child relationship of the type which would be likely to cause the child anxiety. She goes on to provide the opinion that any anxiety being displayed by the child is more likely to be “a result of confusion, conflict between her parents and a sense of loss over not being able to see her father”.
Ms B quite emphatically stated that there is no need for the child to re-establish her relationship with her father under supervision if there is no concern about the Father presenting a risk of abuse because they have a close attachment. She added that she did not observe anything in the child’s comments or demeanour when interviewed individually or observed with the Father to suggest she had ever been abused by him or was anxious about seeing him.
She recommended that the parents have equal shared parental responsibility and that the Court had to determine the time the child spends with the Father based on the assessment of the issue of risk and she recommended confidential counselling for the child with a psychologist or other qualified counsellor as selected by the ICL.
At the trial, Ms B was cross-examined by the Mother and the Father and also by counsel for the ICL. No doubt was cast over any of the opinions she had expressed in her reports, particularly those expressed in the last one. She particularly refuted the proposition put to her by the Mother that perhaps the child had been “seduced” by the Father to enjoy sexual abuse and not to complain of it, telling the Court that the proposed scenario was not at all consistent with the Mother’s own case that the child was displaying anxiety and unwillingness to go to her father’s place.

Other Evidence

Two Magellan reports were put in evidence. Records from the Queensland Police Service and from the Department of Child Safety were put into evidence by the ICL. In short, they evidence the concerns being expressed by the Mother and investigations of the matter being carried out, including the child being interviewed. They contain nothing that independently gives rise to any concern. Indeed, there is evidence contained in Departmental and police records of noted regard being given to the fact the parties were involved in heavily contested parenting litigation in the courts.
At the trial, it became clear that the Mother had never shown police or Departmental officers the photograph that she said she took in September 2010 of the child’s genitals. When questioned about that by counsel for the ICL, the Mother did not give a satisfactory answer. It is also clear that she did not even put the photo into evidence in the proceedings as part of her case. When questioned about that she did not give a satisfactory answer.
The photograph she said she had taken was called for. The Mother produced a photograph on the final day of the trial and it was admitted into evidence as Exhibit 13. It depicts a very close up view of a female child’s genital region. It does not bear a digital date and one cannot determine the age or identity of the subject child. It does show the female child’s anus and labia to be very bright red, as if extremely irritated. To my eye, I cannot detect bruising or swelling around the anus or around the labia, although there is a bluish looking mark, that could possibly be bruising, on the left inner thigh (the right hand side of the photograph) a few centimetres away from the labia. I describe the red marks as appearing like severe nappy rash. There is no expert opinion evidence before me as to whether or not the red rash is consistent with the subject child having been sexually abused or not. Under cross-examination by counsel for the ICL, the Mother did agree with the propositions that the child had experienced a red, irritated and sore anal region and also frequent constipation when the parents were still living together as a couple that had required the application of cream. The Mother said that it had been quite often that the child had experienced it before she and the Father had separated.
The Mother also brought in another photograph on the last day of trial that was admitted into evidence as Exhibit 12. She told the Court it is a photograph of the child “masturbating” at a birthday party she was attending. The photo depicts the female child, sitting between some other children, in a circle on the ground, participating in a game of pass the parcel, the Court was told by the Mother. The child is sitting cross-legged looking away to her right towards something else that she is focused on. I expect it is the parcel that is being passed around or opened by another child at the time. She has her right hand on her left shin and ankle and her left hand between her two legs in front of her genital area. I cannot determine that she is actually touching herself on the genitals though. In fact, it looks to me as if she is not. The Mother said she took the photograph but not because she was thinking at the time that the child was masturbating. She said that she was looking through the photographs at some time afterwards and noticed the child “masturbating” in the photograph and that is why she brought it along to the Court. As with the other photograph, she had not shown it to any person involved in the investigation of the concerns she had and she had not put it into evidence before the last day of the trial.
In his submissions, Counsel for the ICL was quite critical of the Mother in respect of the production of these two photographs only on the last day of the trial, submitting, effectively, that these circumstances cast doubt on the strength of the Mother’s “belief” that the child was being sexually abused in the Father’s care. That she had not advanced the photographs to any of the authorities during the course of the investigations in this case made it impossible to believe that she was as concerned as she asserts that she is, counsel submitted. I accept that there is some merit in that submission.
Counsel for the ICL submitted that there was no real corroboration at all of the Mother’s evidence. The child made no disclosures to any third person; police, counsellor, teacher, child care worker or family report writer. Even when the Mother says the child said something to her that bore an implication that the Father had done something abusive to her, the Mother did not follow it up with any questioning to elicit any explanation of what the child might have been talking about. The child’s behaviour as observed by the report writer is inconsistent with being in fear of, or anxious around the Father. It is inconsistent with the Mother’s own asserted observations of the child, and there is no evidence from the child’s day care centre or school to support the Mother’s assertions about the child’s behaviour in that respect.
The ICL had also put into evidence documents produced under subpoena from the G Medical Centre’s records for the child. The Mother had taken the child to see Dr H at that centre from 2007, at least through to August 2011. Interestingly, the records revealed only one visit in 2010 and that was on 7 December 2010, well after the immediacy of any concerns in June or September/October had passed. The notes the doctor took referencing that visit certainly record things the Mother told her had previously happened, consistent with the Mother’s evidence now, but they in no way explain why the child was not taken to see the doctor contemporaneously to the occasions when the concerns immediately arose. They also reveal that the doctor did examine the child’s genitals on that visit and noticed a “mild erythem around labia minora” and a “few little spots on vulva R side” (some three months after the child last saw the Father). The notes also record the doctor’s opinion that the child’s hymen appeared to be intact when she examined her.
Clearly, none of those records very much assisted the Mother’s case. They also raised questions as to why the Mother had not taken the child to see the doctor earlier in the year.
There were other medical records put into evidence by the ICL. Records of the I Medical Centre pertaining to the child were also put into evidence. They revealed that the Mother had also taken the child to see Dr J at that centre from late 2007 through to late 2011. The entries for the Saturday 10 April 2010, Tuesday 6 July 2010 and Wednesday 14 July 2010, reflect reports by the Mother and recording by the doctor of symptoms of respiratory tract infections and cough only and no mention of any other concerns reported by the Mother to the doctor. The notes of Thursday 28 October 2010 record the noting of a urinary tract infection on that date. That was nearly eight weeks after the child last saw her father at that time. Again, there is nothing in those notes about the Mother even telling the doctor of any other concerns about the child, most particularly that which she says she observed about the child that prompted her to stop the child seeing her father the month before.
Counsel for the ICL also pointed out that the Mother had gone as far as downloading from the Queensland Departmental internet site a list of indicators of Child Sexual Abuse and had gone through it ticking off the behavioural and physical indicators that were on the list that she asserted were present in this case. That document was produced by the Mother and it was put into evidence as Exhibit 2. It confirms that she had ticked off indicators on the list that match those that she asserted existed in this case. Counsel’s submission was that this was evidence more of the Mother looking for the indicators and asserting that they were present so as to make out a case against the Father, rather than being of assistance to the Mother’s case in any other way.
In his evidence, the Father denied any suggestion of having done anything inappropriate to the child. The Mother did not even ask him any questions when she was cross examining him about the issue.

By what Principles is this case to be decided?

The Court is being asked to make parenting orders in respect of the child. When the Court is determining parenting orders the best interests of the child must be the paramount consideration.[1] In determining what orders will meet the child’s best interests, consideration must be given to expressly listed “primary” and “additional” considerations, in addition to some other matters expressly set out in Part VII of the Family Law Act.[2] The process of determination is wide-ranging. That is made clear by inclusion in the list of “additional” matters to be considered the words “any other fact or circumstance that the Court thinks is relevant”.[3]
[1] Section 60CA of the Family Law Act 1975 (Cth)
[2] Section 60CC of the Family Law Act 1975 (Cth)
[3] Section 60CC(3)(m)
The process of determination must nevertheless be performed within the constraints of the statutory framework of Part VII. That Part begins with a statement of the objects of the Part and the principles underlying those objects. That statement of objects and principles is as follows:
S 60B (1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Consistent with these objects and principles, the following considerations, expressly referred to as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are “to be accorded particular importance in determining what order will best promote the interests of the child”.[4] They are:
i)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
ii)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[4] Marsden and Winch (No.3) [2007] FamCA 1364 per Warnick and Thackray JJ at par 77.
In a parenting case where allegations of abuse, sexual or otherwise, of a child by a parent, or someone associated with a parent, are made, the two “primary” considerations and their interplay take on critical importance.
There can be absolutely no doubt that sexual abuse of children is abhorrent. Where it is found to have occurred or to be occurring, then the weight to be given to the need to protect a child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children of having a meaningful relationship with the parent who is the abuser or who is allowing such abuse. Statutory effect was given to this principle with the amendment to s 60CC(2) in mid-2012 to include s 60CC(2A) requiring greater weight to be given to the second of those ‘primary’ considerations in cases commenced from that time on.
It is, of course, also critical to remember that not all allegations of sexual abuse are well-founded. Sometimes parents deliberately fabricate allegations of sexual abuse in order to gain an advantage in parenting orders proceedings. Other times, parents acting in good faith may make allegations that are not correct based on their misperception of information about their child. Courts have to be extremely careful in parenting proceedings to determine the cases where sexual abuse has or is probably occurring from those where the allegations are not true.
False allegations once made can, depending upon the extent to which the child or children become embroiled in the making of them, lead to ongoing psychological abuse of the child or children. If a parent believes, wrongly, that their child has been sexually abused by the other parent or that the other parent has acquiesced in such sexual abuse, that parent’s parenting of the child can become psychologically abusive. Children must be protected against the harm they suffer from such psychological abuse in the same way that they must be protected against the harm they suffer from sexual abuse.

I have observed before that guidance as to how allegations of sexual abuse are to be considered and resolved in parenting cases, where the best interests of the child is the paramount consideration, was given by the High Court in M v M[5] in 1988 and by the Full Court of this Court in a number of cases subsequent to that High Court decision.[6] Section 140 of the Evidence Act 1995 is also directly applicable, as are the matters mentioned in the very old High Court decision of Briginshaw.[7]
[5](1988) 166 CLR 69.
[6]See, for example, N and S and the Separate Representative (1995) 19 Fam LR 837, W and W (Abuse allegations: unacceptable risk) (2005) 34 Fam LR 129.
[7](1938) 60 CLR 336, particularly at page 362 per Dixon J (as he then was).
The Court should not make a positive finding that an allegation of sexual abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.
The inability to make a positive finding that an allegation of sexual abuse is true is not the end of the process of determination. Should the Court be unable to make a positive finding that an allegation of sexual abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child or children to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual abuse, such parenting orders should not be made.
Of course, as the High Court recognised in M v M,[8] just as there will be some cases in which the Court is able to come to a positive finding that the allegations of sexual abuse are well-founded, so, too, will there be cases in which the Court has no hesitation in rejecting the allegations as groundless. What must then follow, of course, in such cases, will be consideration of the matters and issues raised by such rejection of the allegations, particularly as to whether any psychological abuse of the children is occurring, or could occur, as a consequence. Clearly, if the Court is then satisfied that there is an unacceptable risk of psychological harm to the child or children if particular parenting orders are made in favour of the parent who has made the allegations that have been rejected, those particular orders must not be made, but rather orders made that will balance the need for protecting the child or children from such harm with the need for them to have a meaningful relationship with that parent.
[8](1988) 166 CLR 69.
Although generally in cases where sexual abuse allegations are made, the consideration and determination of the allegations of sexual abuse will be at the heart of the process of determining parenting orders that will best protect and promote the interests of the child or children, all of the considerations listed in s 60CC must nevertheless still be considered by the Court as part of the process.
Of course, the Court must still consider the application or otherwise of the presumption of equal shared parental responsibility, and, if the Court decides to make an order that parental responsibility be shared equally by the parents, it must go on to consider the questions going to whether or not orders for the child to spend equal time or substantial and significant time with each parent are in the child’s best interests and reasonably practicable. Then it must go on to make parenting orders that it determines proper having regard to the paramount consideration of the child’s best interests.

What of the sexual abuse allegations in this case?

I certainly do not make a finding that the child has been sexually abused by her father or by some other person. There is simply not enough evidence to persuade me of that fact having regard to the principles I set out above.
My task, therefore, is to go on to determine whether the evidence persuades me that making orders that provide for the child to spend unsupervised time in the Father’s care would expose the child to an unacceptable risk of abuse. As I have already stated at the start of these reasons, I am not persuaded that such orders would expose the child to an unacceptable risk of sexual abuse.
I am satisfied in this case that the Mother ended the relationship with the Father with such a low opinion of him and his parenting capacities that she was determined to ensure that it would be difficult for him to have any form of meaningful relationship with the child into the future. I am quite satisfied that the Mother herself had never really developed any meaningful sense of trust and respect for the Father before they became parents of the child. I respectfully observe that the language differences, as well as the cultural and apparent attitudinal differences the parties have in respect of so many things in life bring sharply into focus the question of what reality testing they subjected their relationship and parenting expectations to in the first place. It could not have been much at all, if any. I am quite satisfied that after their separation, the Mother did not consider there to be any benefit to the child in having a relationship with her father and or for her to be spending time with him on an ongoing basis.
The Mother was determined, once she had legal advice, to ensure that the child only spent supervised time with the Father and that she retained sole parental responsibility for the child. That was well before she raised her case of sexual abuse. Although in the first tranche of the parenting proceedings in the FMC, the Mother ultimately, at the point of final trial, consented to parenting orders that provided for the child to spend unsupervised time in the Father’s care, she told the Court at the trial that she actually had felt overborne at the time she consented to that, saying she was effectively forced into that position by her legal representatives at the time.
From the moment the child started spending unsupervised time with the Father, even though it was in the presence of his new female partner, the Mother was critically observing every aspect of his care of the child and her time with the Father. I consider that she truly was committed to the view that the child’s time with the Father should be, at best limited and supervised, and she was looking for circumstances to be able to revert to that as quickly as possible.
Whilst I do not go as far as finding that the Mother has deliberately made up the allegations, I am satisfied that she has misperceived certain things that she has seen and heard in respect of her child and exaggerated them in her own mind to the point of conviction in her position, whilst at the same time motivated by a constant desire to restrict the child’s time with the Father. The way in which the Mother directed and then misinterpreted the telephone conversation that she had with the Father in June 2010, and then transcribed it incorrectly, even when she actually possessed the recording of that conversation is, in my view, a good example of the behaviour of which I am speaking.
I do not accept the Mother’s veracity in respect of all the aspects of the child’s behaviour that she reported as giving her concern, particularly through the first nine months of 2010. I consider that much of the child’s behaviour seized upon and reported by the Mother could be described as ambiguous in its meaning, with innocent explanations, but I am satisfied that the Mother has preferred to interpret it as pointing to sexual abuse and to exaggerate it in these proceedings with a view to achieving her desired result. The evidence of the Mother’s adult son, similarly did not persuade me that there was merit in the Mother’s case. The same could be said of his misperceiving innocent behaviour on the part of the child and advancing it to support his mother’s case out of loyalty to her and ill feeling towards the Father.
I observe that Counsel for the ICL fervently advanced a position consistent with the views I have just expressed and persuasively submitted that there should not be a finding that the child would be placed at an unacceptable risk of sexual abuse if orders are made that she is to spend unsupervised time with her father. I am, on the balance of probabilities, quite satisfied that this is the correct position in this case.

What parenting orders should now be made?

Having regard to my findings about threats and abuse, I find that the presumption that equal shared parental responsibility is in the best interests of the child is rebutted. However, that does not mean that such an order cannot still be found, on the balance of the evidence, to be in the best interests of the child.
Parental failure to be able to communicate is sometimes a basis for determining that an order for the parents to equally share parental responsibility is not in a child’s best interests. However, in this case, particularly having regard to the most recent opinion evidence of the family report writer who had contact with this family over a number of years, and my findings that the Mother has never really favoured the development of a meaningful relationship between the child and her father, I am of the view that the sharing of parental responsibility for the child is most probably in her best interests as it will require both parents to respect the other parent’s role in the child’s life and each of them to consult the other and make a genuine effort to reach agreement in respect of the decisions about the major long-term issues in the child’s life. As such, neither parent can simply continue to shut the other parent out of the child’s life because they want to get on with their own life without regard for the other.
I intend to order, as recommended by the family report writer and supported by the ICL, for equal shared parental responsibility for the child.
Having said that, I am quite prepared to say immediately that I do not consider that an equal shared care arrangement is in the child’s best interests. Neither do I consider that the child’s best interests are served by taking her from her Mother’s principal care and putting her in her father’s care. Although the Father submitted that is what I should do, the ICL made it clear that such a position was most definitely not supported in this case. I agree that is the correct approach.
Quite apart from the evidence that conclusively points to the child’s principal attachment being with the Mother, having lived principally in her Mother’s sole care for the last six years, there was evidence that suggested a lack of clear stability and security in the Father’s current relationship, and sufficient evidence to quickly persuade me that the child’s best interests will continue to be served by leaving her in the principal care of her mother. At the same time, notwithstanding that evidence that I just referred to,[9] I am quite satisfied that it is in the child’s best interests to continue to develop her relationship with her father by spending time with him on weekends and, after some months of rebuilding time with him on weekends, to introduce school holiday time and time with her father on school days. This way, the child will transition, over a relatively short period of time, to spending “substantial and significant” time with her father, allowing her to enjoy time and relationships with him, his partner and her younger half-brother and her older step-brother.
[9]Particularly evidence that the Father and his new partner had had some difficulties, including coming to the attention of police for heated argument and physical tussling over their baby boy, evidence that the Father had again pursued an internet relationship with a woman overseas whilst still living with his partner and evidence that his teenage daughters of his former marriage were no longer spending time with him during school holidays.
Given the fact that the Mother and child live in southern Brisbane and so does the Father, I am satisfied that such a parenting arrangement will be “reasonably practicable” as that term is defined in the FLA. I am convinced that the parties will make such an arrangement work in their daughter’s best interests, once they have this judgment and these proceedings are behind them.
Although the Mother told the Court that she will probably still believe that the child was sexually abused by the Father even if the Court did find there was no unacceptable risk to the child spending unsupervised time with her father, I am sure that the Mother will abide the decision of the Court and comply in future with the Orders that this Court makes for the child to begin spending unsupervised time with the Father. The Mother is an intelligent, educated woman who I am confident will understand that due process has taken its course. I am satisfied that she is bright enough to know that further deliberate, unwarranted disruption of the development of the child’s relationship with her father could have unwanted consequences for her own relationship with the child. I do not expect that will happen.
The family report writer’s recommendation that the child be given counselling for a time to help her through the transition into this new parenting regime is one that I accept and will provide for in the orders that I will make. I will give the ICL the responsibility for selecting the counsellor and informing the parents of her choice. I will give the Mother the responsibility of arranging the counselling. The counsellor is to be provided with a copy of my orders and these reasons.
I will order that the ICL, either herself, or in conjunction with Ms B, if they both consider that appropriate, inform the child as soon as practicable of the outcome of these proceedings. I will order that the ICL be discharged after she has done these things.
Finally, I express my apologies to all of the parties, including the ICL, for the length of time it has taken me to consider and deliver this judgment. I appreciate, given my findings, that the Father has most reason to feel aggrieved by the delay. I regret any inconvenience and distress that may have been caused by this. The responsibility to hear and determine many other difficult cases in this Court in that time is what I attribute the delay to. It is hoped, now the matter is determined, the parents will be able to move on, resolutely focused on making a success of co-parenting their little girl.
I make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 January 2014.

Associate:

Date: 17 January 2014

[2014] FamCA 11

17 January 2014

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Family Law

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