Elsdon & Maris
[2023] FedCFamC1F 1093
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Elsdon & Maris [2023] FedCFamC1F 1093
File number(s): BRC 10464 of 2017 Judgment of: HOWARD J Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – PARENTING – Where the father seeks a change of residence order – Where the mother sought a no time order at the trial until the final submissions, when the mother sought that the orders remain the same and the child remain living primarily with her – Where the mother alleged that the father had sexually abused the child – Where, at the conclusion of the trial, the mother submitted that there was no risk of harm to the child in the unsupervised care of the father – Where it was in the interests of the family for the Court to make findings concerning the allegations of sexual abuse – Where the Court found that the father had not sexually abused the child and where the Court found that the child was not at any risk of harm in the unsupervised care of the father – Best interests – Change of residence to the father – Sole parental responsibility to the father – Moratorium of the mother’s time with the child – Period of supervision of mother’s time with the child – Followed by alternate weekends with the mother and half holidays between the parents. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 13C, 60CA, 60CC, 61DA, 65DAA
Criminal Code 1899 (Qld) s 364
Evidence Act 1977 (Qld) s 93A
Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Briginshaw v Briginshaw (1938) 60 CLR 336
Cox v Pedrana (2013) FLC 93-537
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No 2) [2020] FamCAFC 291
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of N and S (1995) FLC 92-655
Isles & Nelissen (2022) FLC 94-092
Johanson & Johanson [2022] FedCFamC1A 74
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Napier & Hepburn (2006) FLC 93-303
Qantas Airways Limited v Gama (2008) 167 FCR 537
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 165 Date of hearing: 3, 4, 5, 6, 9, 10 October 2023 Place: Brisbane Applicant: Litigant in person Counsel for the Respondent: Mr Gordon Solicitor for the Respondent: Jeff Horsey Solicitors Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Insight Family Law and Mediation ORDERS
BRC 10464 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ELSDON
Applicant
AND: MS MARIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders in respect of X born 2015 (“the child”) are discharged.
2.That the father has sole parental responsibility for the care, welfare and development, including the major long-term issues of the child.
3.That pursuant to Order 2 above, where the father proposes to make a decision relating to the major long-term issues of the child, the father will:
(a)Inform the mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision;
(b)Allow the mother seven (7) days after the provision of the information referred to above to respond to same in writing;
(c)Consider the mother’s response, if any, when coming to a decision about the issue; and
(d)Inform the mother of the final decision made in respect of that issue as soon as practicable thereafter.
4.That the parties have sole responsibility for decisions about the day-to-day care, welfare and development of the child during the periods when the child is living with them, except as otherwise provided in these Orders.
CHILD’S LIVING ARRANGEMENTS
5.That the child live with the father.
6.That for a period of 28 days following the making of these Orders:
(a)the child spend no time with the mother;
(b)the child communicate with the mother only by way of written communication sent by the mother to the child via the father.
7.That following the period of 28 days after the making of these Orders (as per Order 6) – the child shall spend time with the mother supervised at a contact centre once per week for a period of 28 days with the parents to share the costs of the supervised time at the contact centre.
8.That following the period of supervision (as per Order 7) the child shall spend time and communicate with his parents as agreed between the parents, and failing agreement:
(a)With the Mother during the school term, on alternate weekends from after school Friday (or 3pm if not a school day), to the commencement of school Monday and for such purpose, if Monday is not a school day, then time with the Mother shall be extended to the commencement of school Tuesday.
(b)For one half of the child's school holidays as apply to the child's school, namely:
(i)In even numbered years, the child shall spend the first half of the holidays with the Mother, and the second half with the Father; and
(ii)In odd numbered years, the child shall spend the first half of the holidays with the Father, and the second half with the Mother.
9.That except for the period of moratorium contained in Order 6 (and notwithstanding the other Orders contained above) the child shall spend time with his parents on special occasions as follows:
(a)In even numbered years, from 5pm Christmas Eve to 3pm Christmas Day with the Father, and with the Mother from 3pm Christmas Day to 5pm Boxing Day;
(b)In odd numbered years from 5.00pm Christmas Eve to 3.00pm Christmas Day with the Mother. and with the Father from 3pm Christmas Day to 5pm Boxing Day;
(c)For the child’s birthday, in even number years, with the father from 12.00pm (noon) the day before the child’s birthday to 12.00pm (noon) on the child’s birthday. and with the mother from 12.00pm (noon) on the child’s birthday to 12.00pm (noon) the day after the child’s birthday;
(d)For the child’s birthday, in odd number years, with the mother from 12 noon the day before the child’s birthday to 12.00pm (noon) on the child’s birthday. and with the father from 12.00pm (noon) on the child’s birthday to 12.00pm (noon) the day after the child’s birthday;
(e)For Mother’s Day. should that day fall on a weekend when the child would otherwise be in the care of the Father, (and in addition to the time spent in accordance with 8(a) and 8(b) of these Orders) the child will be returned to the Mother's care after school on the Friday before Mother's Day (or 3pm if not a school day). and remain in her care until the commencement of school Monday (or 9am if not a school day) being the day after Mother's Day.
(f)For Father’s Day. should that day fall on a weekend when the child would otherwise be in the care of the Mother, the child will be returned to the Father's care after school on the Friday before Father's Day (or 3pm if not a school day), and remain in his care until the commencement of school Monday (or 9am if not a school day) being the day after Father's Day.
(g)The child shall communicate with the parent they are not spending time with:
(i)by way of video call each Wednesday between 6.00pm and 6.30pm, with the parent who is not spending time with the child to initiate the call to the child via to the other parent's nominated device, and for such purpose:
A.each parent must maintain a device and service capable of making and receiving video calls;
B.each parent must provide the other with their contact details sufficient to make and receive the video calls;
C.each parent must update the other parent within 24 hours of any change in their contact details; and
D.each parent will provide the child privacy when communicating with his other parent.
10.That for the purpose of school holiday time:
(a)the school holiday shall commence:
(i)when a parent’s time falls in the first half of the holiday, from after school on the last day of term, and conclude at 5.00pm on the day calculated to be half of the holidays; and
(ii)when a parent’s time falls in the second half of the holiday, from 5.00pm on the day calculated to be half of the holidays, to the commencement of school on the first day of the new school term.
(b)School holidays shall be deemed to commence at the close of the child’s school on the day the school term finishes, and conclude at the commencement of the new school term at the child’s school.
(c)The number of nights in each school holiday shall be used to calculate one half of the school holiday period and if there is an uneven number of nights, the mother shall retain the additional night.
11.That unless otherwise agreed. the parties shall communicate all matters concerning the child via the communication book on the website ourchildren.com.au.
CHANGEOVERS
12.That changeovers that are to occur at the commencement or end of a school day, shall occur at school, and in all other circumstances, unless otherwise agreed shall occur at the petrol station at B Street, Suburb C and the parties shall be at liberty to have a friend or family member who is familiar to the child attend as agent of the party
AUTHORITIES
13.That by this Order the father and mother authorise the child's medical practitioner, allied health care practitioner, counsellor, psychologist, school or education providers, extra‑curricular providers to discuss with the other party matters related to the child.
14.That the father and mother inform the other as soon as it is reasonably practicable of any medical condition, significant health issue, injury and/or illness suffered by the child and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such situation.
15.That each party keep the other party informed of the names and addresses of any and all medical practitioners, allied health care practitioners, counsellors, psychologists, school or education providers or extra-curricular providers who are involved in treating, caring or providing services to/for the child.
16.That by this Order, the father and mother authorise the child’s school to contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the Father and Mother with the school directly.
OVERSEAS TRAVEL
17.That the father shall retain the child's passports and the mother is to return the passports to the father at the conclusion or any overseas trip.
18.That passport issue or renewal costs will be the responsibility of the father.
19.That each party must give a minimum of one (1) months notice in writing to the other parent in relation to any proposed overseas trip (including full itinerary, details of accommodation and contact numbers).
20.That copies of confirmed return travel documents for the child are to be provided to the other party at least seven (7) days prior to intended travel.
21.That unless otherwise agreed in writing, any overseas trips will:
(a)take place during school holidays and during that parent's Court-ordered time with that child; and
(b)be limited to travel to a country that is a signatory to the Hague Convention.
PUBLICATION OF JUDGMENT TO NAMED AUTHORITIES
22.That in relation to any further allegation of abuse of the child (after the date of this Order) - the father, mother and if not yet discharged, the Independent Children's Lawyer are authorised to provide a copy of these Orders and Reasons for Judgment to:
(a)The Commissioner of Police;
(b)the relevant child welfare authority (e.g. the Queensland Department of Child Safety, Seniors and Disability Services);
(c)any medical professional (including but not limited to general practitioner, psychologist and/or counsellor) upon whom the child has attended or attends upon in the future; and
(d)any educational institution that the child attends or has attended.
PARENTING COORDINATOR
23.That for the purpose of improved communication about parenting issues, the parents engage with a Parenting Coordinator registered with D Organisation, and for such purpose if no agreement is reached within 14 days, such Parenting Coordination shall be as nominated by the Independent Children’s Lawyer (with such nomination to occur within 28 days of these Orders).
24.That the parties will forthwith retain the parenting coordinator (the "Parenting Coordinator") for a minimum term of twenty-four (24) months from the date of these orders, on the terms provided in this Order and in the form of the parenting coordination agreement endorsed by D Organisation (the “Standard PC Agreement”), provided that if any terms of this Order conflict with the Standard PC Agreement, this Order will prevail.
25.That the parties shall attend on the Parenting Coordinator as required by the parenting coordinator on a non-confidential basis.
26.That the parties will complete the appointment of the Parenting Coordinator including but not limited to:
(a)Execution of the Standard PC Agreement; and
(b)Remittance of all requisite retainers and deposits.
on or before 42 days following the date of these Orders. with liberty to apply to the Court failing conclusion of the appointment of the Parenting Coordinator.
27.That the Parenting Coordinator may assist the parties in the implementation of these Parenting Orders in the following manner and on a non-confidential basis:
(a)By building consensus between the parties, including (but not limited to) by:
(i)Developing and instituting guidelines for the implementation of the parenting terms of this Order;
(ii)Developing and instituting guidelines for communications between the parties;
(iii)Identifying, creating and implementing strategies for resolving conflicts between the parties; and
(iv)Providing information regarding resources available to the parties for the improvement of their communication or parenting skills.
(b)By issuing Recommendations and/or Proposed Protocols that the Parenting Coordinator believes would be in the best interests of the child in the implementation of the Parenting Orders and, in the event the Parenting Coordinator shall issue such Recommendation or Proposed Protocol, shall provide the parties with written reasons for that Recommendation or Proposed Protocol.
28.That the fees, disbursements and other charges of the Parenting Coordinator will be shared equally by the parties, subject to the Parenting Coordinator's authority to reapportion the total parenting coordination costs between the parties as provided in the Standard PC Agreement. Either party is at liberty to apply to the Court to resolve any issue arising out the other party's non-payment of the fees, disbursements and other charges of the Parenting Coordinator.
29.That subject to any applicable Order of the Court, if the parents are unable to agree on any decision affecting the parenting responsibilities or parenting arrangements for the Child, they will refer the dispute to the Parenting Coordinator for resolution. Prior to filing any further Court proceedings relating to the parenting of the child – the parties must use the services of the Parenting Coordinator in an attempt to resolve any outstanding issue or dispute.
30.That either party is at liberty to apply to the Court if either party fails to comply with the Recommendations or Proposed Protocols of the Parenting Coordinator and the Recommendations or Proposed Protocols and the Parenting Coordinator’s written reasons for such Recommendations or Proposed Protocols shall be available as evidence to be produced by either party in any such application to the Court.
31.That neither party shall discuss with the child or permit discussion with the child any aspect of these proceedings.
32.That both parties shall keep each other informed of any change to their respective mobile telephone number and residential address within 48 hours of such change.
33.That both parties are to engage in therapeutic counselling to assist them to develop strategies to improve communication and co-parenting relationship and for such purpose each party is at liberty to provide such counsellor with:
(a)the two Family Reports of Ms E filed in these proceedings; and
(b)these Orders and Reasons for Judgment.
34.That subject to the Orders contained here in relation to the moratorium of the mother’s time and the supervision of the mother’s time – and subject to any conditions imposed by the child’s school, these Orders authorise each parent to attend any school function to which parents are normally invited including but not limited to carnivals, sport days, fetes, concerts, plays, and parent/teacher information and meetings, subject always to the discretion of the school authorities.
35.That each party shall make their own arrangements with the child’s school to receive their own notifications of all school or sporting events occurring at the school including school reports and newsletters.
36.That these Orders authorise any service provider or holder of information about the child, to provide such information as is normally provided to parties and copies of any documents about the child normally provided to parties, to each of the parties.
37.That each parent is restrained from discussing any of the evidence given in these proceedings directly with the child or in the child’s presence or hearing and they remove the child from any person doing so.
38.That each parent is restrained from making any Court document in these proceedings available to the child.
39.That both parties are restrained from denigrating the other party or the other parties’ family – directly to the child or in the presence or hearing of the child.
40.That save in the case of an emergency, the Mother is restrained from engaging any medical or other allied health practitioner for the child other than with the written consent of the Father.
41.That the terms of these Orders and the reasons for making them be explained to the child by a Court Child Expert of the Federal Circuit and Family Court of Australia (Division 1) immediately upon the delivery of judgment.
42.That upon the delivery of judgment the mother and her family and friends (if any are in attendance) shall leave the Court precinct immediately on 15 December 2023.
43.That once these Orders have been explained to the child by a Court Child Expert at Level 3 of the Commonwealth Court building at Brisbane (as provided for earlier in these Orders) the child shall then be handed to the care of the father and from that time the child shall commence to primarily live with the father in accordance with these Orders.
44.That the parties and the ICL have liberty to apply to the Court in relation to the sole issue of the mother’s employment.
IT IS NOTED:
A.That in these Orders the reference to a party or parties is a reference to a parent or the parents.
B.The parents agreed to the appointment of a Parenting Coordinator and the appointment is made pursuant to s 13C of the Family Law Act(Cth) 1975.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elsdon & Maris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
The applicant father is Mr Elsdon. The father was born in 1972. The respondent mother is Ms Maris. The mother was born in 1980. The parties met and commenced a relationship in 2014. The parties were married in 2015.
The parties have one child, X born 2015 (“the child” or “X”).
The parties separated on a final basis on 2 June 2016. After separation, the parents were unable to agree on parenting arrangements. In October 2017 the father commenced parenting proceedings in the Federal Circuit Court of Australia.[1] There was a final hearing on 5 March 2019 before her Honour Judge Purdon-Sully.[2] Judgment was delivered on 12 March 2019 and her Honour ordered that X live with the mother. It was also ordered that the mother would have sole parental responsibility. The father's time was to increase and, in broad terms, lead to the current parenting arrangement whereby the child lives with the mother and, in week one, spends Thursday evening with the father and in week two, spends time with the father from after-school Friday until before school Monday. During holidays, the child was to spend some further time with the father – but limited to two days extra in each gazetted school holiday period. They are the only orders that are relevant for present purposes.
[1] As that Court was then known.
[2] As her Honour was then known.
BACKGROUND
After the first trial the mother made allegations that the child had disclosed that he had been sexually abused by the father. I will refer to those allegations in more detail later in these reasons.
Notwithstanding the fact that allegations of sexual abuse were made by the mother against the father – the child continued to spend time with the father in accordance with the orders of Judge Purdon-Sully. Those orders continue to operate.
On 15 January 2020 the father filed a new Initiating Application seeking a variation of the parenting orders. The parties requested that the Court issue a declaration – to the effect that there had been a change in circumstances sufficient to justify the Court revisiting the parenting orders. That declaration was made by the Court on 15 October 2020.
The parties are still unable to agree in relation to the parenting orders for X.
The mother in her trial affidavit included a paragraph (paragraph 20) stating that she sought that the father’s application be dismissed, and she sought that the final orders of March 2019 would remain in place. This is also what the mother sought in her response document that had been filed 23 May 2022 in respect of these particular proceedings.
On 12 September 2023, the mother filed an Amended Response. In the Amended Response, the mother sought that the child live with her and the mother sought that the child would spend no time and have no communication with the father. In the alternative, the mother sought that the child would spend supervised time with the father for two hours per month at a contact centre. The mother also sought a costs order in respect of the proceedings. The final orders sought by the mother in her Amended Response were therefore very different to the orders that the mother said that she was seeking in paragraph 20 of her trial affidavit – also filed on 12 September 2023. Throughout the course of the trial the mother maintained the position as outlined in her Amended Response. However, in closing submissions, the mother’s counsel, Mr Gordon, informed the Court that he held instructions to revert to the orders originally sought by the mother – namely that the order of Judge Purdon-Sully would remain the same. In addition, on 10 October 2023 during final submissions it was also explained to the Court that the mother would agree to half holidays between the parents.
The orders sought by the father are for a change of residence. The father seeks an order that X live with him. The father seeks an order for sole parental responsibility in respect of X. The father seeks an order that there be a moratorium of time between X and the mother for a period of 6-12 months. The father then seeks that there be an order for supervised time between X and the mother leading up to an order whereby X would spend alternate weekends with the mother and half holidays. The father also seeks an order for counselling – for the mother, the father and X. The father was self-represented at the final hearing.
Mr George of counsel appeared on behalf of the Independent Children's Lawyer (“the ICL”). The ICL sought final orders whereby X would move to live primarily with his father. The ICL also seeks an order that the father have sole parental responsibility in respect of X. The ICL seeks an order that there be a moratorium of time between X and the mother for four weeks.
The ICL and the father both seek a finding by the Court that the sexual abuse alleged by the mother against the father in relation to X – did not occur.
All of the parties – namely, the mother, the father and the ICL seek that the Court make a finding that the child is not at an unacceptable risk of harm in the unsupervised care of the father. This direct submission was made by Mr Gordon of counsel on behalf of the mother in closing oral submissions on Tuesday, 10 October 2023. Such a finding is supported by the ICL and also by the father.
The trial ran for six days – having commenced on Tuesday, 3 October 2023. Throughout the trial – and up until the time of the closing submissions on 10 October 2023 – the mother had maintained her position that the sexual abuse had occurred. The mother’s position only changed during closing submissions.
This is, indeed, a case about risk.
PART VII OF THE FAMILY LAW ACT 1975 (CTH)
The principles to be applied in parenting cases in Australia are contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act provides: –
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
By s 60CC of the Act the Court is required to “consider” various matters when determining what is in the best interests of the child. The Court is not required to specifically mention each factor contained in s 60CC (Cubbin & Cutler [2018] FamCAFC 84 at [12]-[13]).
The primary considerations in relation to a best interests determination are stated in s 60CC(2). Section 60CC(2) and s 60CC(2A) provide:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Subject to what follows – the conclusion I have reached is that it will be of benefit to X in having a meaningful relationship with both the father and the mother. It will become apparent from these reasons for judgment how this will be achieved. Of particular importance in this case is s 60CC(2A) – relating as it does to s 60CC(2)(b).
Before embarking upon a review of the evidence relating to risk factors for the child – it is helpful for the Court to state some further principles concerning Part VII applications. I note:
(a)There is no requirement that the various sections and subsections must be considered in any specific order: Cox v Pedrana (2013) FLC 93-537 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
(b)In Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63] the Full Court stated:-
“[The Court]…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
(c)In Baghti, the Full Court cited with approval Mahoney JA’s decision in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Tatmar Pastoral”). Mahoney JA stated at pp.385 – 386, inter alia, as follows:-
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
(d)In a similar vein – the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) per Gleeson CJ, McHugh and Gummow JJ stated at [62], inter alia:-
“… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”
(e)The Full Court of this Court has adopted this approach from Whisprun: see Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43].
SECTION 60CC(2)(B) AND SECTION 60CC(2A)
The mother’s evidence – as well as the evidence of other witnesses called on behalf the mother – includes allegations that the child has been sexually abused by the father. The mother believes that X was sexually abused by the father. The mother stated this in her oral testimony. Other members of the mother’s family also believe this to be true. Notwithstanding this evidence from the mother – the submission made on her behalf at the conclusion of the trial (as already noted) is that the child is not at unacceptable risk of harm in the unsupervised care of the father. This must also be taken to mean that the child is not at unacceptable risk of sexual abuse in the unsupervised care of the father. Notwithstanding the mother’s changed position – I consider it is still necessary to consider the evidence relating to the allegations of sexual abuse. In my view, this approach is appropriate. I was urged to take this approach by the ICL and the father. The examination of the evidence relating to sexual abuse will not have to be as detailed in these reasons for judgment – given the mother’s changed position. I am well aware of all of the allegations that have been made in relation to sexual and other abuse by the father. I have considered all of the evidence. I will, however, refer to only parts of the evidence in these reasons for judgment. In my view, it is important to review the evidence and, if possible, make findings in relation to the alleged abuse. This will hopefully bring some closure for this family and enable this family to move forward. This family has been involved in litigation in this jurisdiction for many years. The parents were together for a short period of time. Their separation was acrimonious. They have not spoken directly to each other for six years.
Before embarking upon a review of the evidence concerning the allegations of sexual abuse – it is helpful for the Court to include here some of the important cases in Australia where there have been allegations that a particular parent has sexually abused a child. In M v M (1988) 166 CLR 69 (“M v M”) the High Court of Australia laid down the approach for trial Courts to take in family law cases where there is an allegation that a parent has sexually abused a child. At pp. 76-77 the High Court stated (inter alia) as follows:-
“...the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (15). There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw (16), that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.”
(Footnotes Omitted)
The High Court’s decision in M & M took place before the Parliament enacted the Commonwealth Evidence Act in 1995: Evidence Act 1995 (Cth) (“the Commonwealth Evidence Act”). Section 140 of the Commonwealth Evidence Act states:
“140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Cases such as Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) remain relevant – notwithstanding the enactment of the Commonwealth Evidence Act. In Qantas Airways Limited v Gama (2008) 167 FCR 537 the Full Court of the Federal Court of Australia (per Branson J) stated at [128] that s 140(2) of the Commonwealth Evidence Act, “...was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.” An allegation of sexual abuse is a very serious allegation. A positive finding that the allegation is true should not be made on the basis of “inexact proofs, indefinite testimony, or indirect inferences”.[3]
[3] Per Dixon J in Briginshaw at page 362 and as quoted in M v M at page 76.
One of the important decisions in the development of family law jurisprudence in Australia concerning cases involving allegations of sexual abuse is the dissenting decision of Fogarty J in the decision known as In the Marriage of N and S (1996) FLC 92-655 (“N & S”). The question as to whether or not sexual abuse has occurred leads to a consideration of the question of “risk” and, more particularly, whether or not a person poses an “unacceptable risk” of harm to a child. At page 860 in the decision of N & S Fogarty J stated, inter alia:-
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
The dissenting decision of Fogarty J in N and S was supported by subsequent Full Courts. I note decisions such as Napier & Hepburn (2006) 36 Fam LR 395;[4] Johnson & Page (2007) FLC 93-344;[5] Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater & Fitzwater”)[6].
[4] At [56]
[5] At [66] and [95].
[6] I note [14]-[16].
One of the more recent decisions of the Full Court in relation to the assessment of risk is the decision of Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”). The Full Court there considered the approach to be taken by a Court when assessing future risks of harm. At [55] in Isles & Nelissen the Full Court adopted a previous decision of Austin J as the correct statement of the law. That previous decision of Austin J was the dissenting judgment that his Honour delivered in Fitzwater & Fitzwater. In Fitzwater & Fitzwater, Austin J stated, inter alia:-
“133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Pty Ltd (No 2) (1990) 169 CLR 638; 94 ALR 206 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored…”
When the Court is considering the risk of possible future harm to children – the Court is not required to (and, indeed, is not able to) make a finding of the existence of such harm on the balance of probabilities. Austin J stated in Fitzwater & Fitzwater (at [39]) - “Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening”.
The Full Court stated in Isles & Nelissen[7]:
“53.The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proved on the balance of probabilities.”
[7] At [53].
I will include here in these Reasons for Judgment some of the relevant historical facts and circumstances and the relevant evidence concerning the allegations of sexual abuse and risk generally. Earlier in these Reasons for Judgment it was noted that separation between these two parents occurred on 2 June 2016. In mid-2016 the mother obtained a Temporary Protection Order. That order appears to have expired two weeks later. That protection order is not relevant in the current proceedings.
It is important to note at this juncture that the father attended as a self-represented litigant for this six day trial that commenced on 3 October 2023. The father was permitted to personally cross-examine the mother. The father's cross-examination of the mother was not extensive. There was no reason to prevent the father personally cross-examining the mother. The approach taken by the Court was supported by counsel for the ICL and counsel for the mother.
My examination of the evidence relating to the mother’s allegations of sexual abuse against the father commences with the events of late 2016 when the child was an infant. In late 2016 at 23:44 (11.44pm) the mother presented with the child at the Emergency Department of the F Hospital. The Hospital’s notes are contained at pages 420 and 421 of the ICL’s Tender Bundle – Exhibit 2. The notes are revealing because they show that from the time when the child was an infant the mother has been concerned that the child has been abused by the father. The parties had been separated for a number of months at this point in time. The mother’s concerns (I infer from the notes) related not only to sexual abuse but also to neglect. The neglect complained of by the mother was so egregious as to amount to a criminal offence.[8] The mother took the child to the Emergency Department because she felt that the child's anus was red and larger than it had been that afternoon. The mother also told the Hospital that the father does not always feed the child or give the child water when visiting. In the context of this case – it is important for the Court to include the hospital notes of late 2016 in their entirety. Those notes state:-
[8] Note s 364 of the Criminal Code 1899 (Qld).
[infant] brought in by Mum
Mum concerned pt being abused by father
parent separated [a number of months] ago
father has 3 x 3hr visitations during week
was with Dad last Thursday
on Friday Mum noted some ?blood in nappy after passing bowel motion
stool was soft, pt did not strain or appear in distress when passing
seen at GP, who gave mum sample jar to collect stool
Mum reports she collected stool from nappy in bin
was reportedly -ve for blood
had further soft bowel motion Sunday with ?blood in it
no bleeding in between
pt returned from Dads tonight ~630pm
very distressed when Mo removed nappy
Mo felt that pts anus was red, and larger than it had been this afternoon
brought pt to ED
Mo reports that pt's behaviour has changed recently
"sleep crawling"
always distressed with removal of nappy
clingy
father reportedly does not always feed pt or give him water when visiting
Mum reports she has raised this with ?child safety who alledgedly told Mum there was nothing they could do about this
Mo reports that she left father in the first place because she was concerned about his behaviour towards pt
reportedly would only interact with child if mother was out of the house
Mo has made comment tonight that "i don't know what photos he has on his ipad"
Mo anxious about involving police as she has been told by her lawyers that father can sue her if she makes false accusations
she is also concerned about "revenge attacks" on her or [X]
otherwise well child
no fevers
no history of constipation, no issues with passing stools in the past
no food intolerances
no nappy rashes in the past
O/E- obs unremarkable
asleep, but easily rousable
very distressed when awake
cap refil 2 secs
MMM
well nourished child
no tears to frenulum under tongue visible
no bruising or marks on face or head
moving all limbs, and head freely
no bruising or obvious injuries to arms or legs
no bruising on torso or back, no abrasions
Abdo- soft, seems non tender
nappy removed, no rashes
- small ring of erythema surrounding anus, no tears or fissures visible
- no fresh blood visible, no blood in nappy
Imp- concerns voiced by Mo of child abuse, in a well looking child with normal examination
myself and [Dr G] have both explained to mother that she needs to make a formal police report in order to take these concerns further
Mo wanting to know if we think there is evidence that [X] has been abused
I have attempted to explain multiple times that there is no yes or no answer, the erythema around the anus could be normal, or could have any number of explanations for it
pt looks well this evening, and has a normal examination tonight, no acute medical concerns
community child safety already ?involved in case
have discussed with our child protection team this evening who have also reiterated that Mo needs to make formal police report in order for further investigations to proceed
Mo understanding of this, will return if concerns
(As per original)
Eleven days later in late 2016 the mother telephoned the F Hospital and told the Hospital that she had brought X in for an examination as she was concerned he had been sexually abused. It is apparent from a consideration of those hospital notes (on both occasions in late 2016) that the mother was concerned that X had been sexually abused by the father. At page 422 of Exhibit 2, the Hospital notes of the telephone call in late 2016 state:-
“Phone call from [Ms Maris] - Mother of [X]
Reported she had brought [X] in for an examination as she was concerned he had been sexually abused
[X] was seen in […] ED on Thursday night […] - mild erythema around anus but otherwise normal examination
Was discussed with [J Health Service] on call - advised that Mother should report her concerns to the police who would then refer to [J Health Service] if examination needed.
Today, [Ms Maris] was wanting to know what the doctors found on [X's] examination (this was explained to her in ED) on [previous occasion]
[Ms Maris] repeatedly stating that [X's] anus was dilated/enlarged and wanted to know if this was documented
I have advised [Ms Maris] that if she wants a copy of the notes she will need to go through our Medical Records/HIA department (I can not give out information over the phone)
[Ms Maris] asking what this could mean/what else could cause those findings. I have explained that I am unable to contact as I did not examine [X]
I explained that it is not always possible to tell if a child has been sexually abused and examination findings may be normal/or abnormal
I have stressed the importance of Mother acting protectively of [X]
Mother was advised to go to the police to report her concerns - was advised in ED and I have reiterated this again
Mother concerned as she has been told by her lawyers that she should not go to the police unless she was certain
I have explained that Mother should go to the police if she has any concerns; it is up to the police to determine if an investigation needs to occur
Mother agreed to do this
[Dr H]
[J Health Service]
[…]”
The mother then presented to the Suburb K Police Station. It is not clear from the note whether or not the mother took the child to the Police Station on that day. Two days later a police officer from Suburb K CPIU[9] named Officer L telephoned F Hospital. Notes of that telephone call are included at page 429 of Exhibit 2. The notes state:-
[9] Child Protection Investigation Unit.
“Document Type: Outpatient Child Development/Protection
Service Date/Time: […]2016 12:03
Result Status: Auth (Verified)
Perform Information: [Ms M] RN ([…]2016 12:09)
Sign Information: [Ms M] RN ([…]2016 12:09)
Telephone call received from [Suburb K] CPIU – [Officer L]
Mum has presented to [Suburb K] Police today stating she was seen at [F Hospital] yesterday and advised to present to CPIU
Advised CPIU that Mum presented to [F Hospital] [in late] 2016. Informed QPS that examination took place in ED
not at [J Health Service].
ED Doctor has documented mild redness to anus.
Advised that we could see child if QPS woudl like to refer to us but otherwise woudl advise Mum to seek legal advice and
engage with protective behaviours work through an agency such as [N Organisation]
Chart reviewed - noted advice provided yesterday by [J Health Service] registrar and [J Health Service] Consultant […]
[Ms M]
[…]
[J Health Service]
[…]”
(As per original)
At page 425 of Exhibit 2, F Hospital notes that in the following month the mother presented with the child. There is nothing relevant contained in those notes relating to the mother’s previous allegation or concern of sexual abuse. The note seems to relate to the child having a cold or a fever and perhaps diarrhoea. The Hospital noted that the mother was ‘continually referring to previous complaints about father's care’. The inference I draw from the evidence is that the mother presented at the Emergency Department at the Hospital – and appears to have been blaming the father for the child’s presentation – which, from the notes, related to a cold; fever; and/or diarrhoea.
The record from the Department of Child Safety[10] states:-
“In [early] 2018 a Notification was recorded with the mother as alleged person responsible due to concerns that she was making false allegations of sexual abuse by the father - it as reported she ... There were also concerns that the mother was purposefully making [X] sick ... It was also reported that the mother constantly talks in a negative manner about the father to/in front of [X] ...
The outcome of this investigation was unsubstantiated. ... concerns that [Ms Maris] appears hyper-sensitive to [X's] needs and often over-reacts; that it is possible that [Ms Maris] is coaxing [X] to make disclosures and then will allude to [Mr Elsdon] sexually abusing [X] while [X] is present … and there is no reported evidence of sexual abuse...
In 2016 three CCR's and one IE were recorded regarding allegations the father was not giving [X] food and drink ... allegations of sexual abuse by the father ... however feedback from CPIU indicated medical examination occurred and medical evidence was inconclusive; and allegations [X] ... presenting is drugged”
(As per original)
[10] At times in these Reasons for Judgment I will refer to both the “Department of Child Safety” and to “the Department”. The Department has had many changes of name over the years.
There are typographical errors in the above quotation. They have been included as written in the record. There is also redaction. The note appears at page 453 of Exhibit 2 – part way down the page under a heading, “Child Protection History”. The notifications made to the Department (as quoted above), must have come from the mother or from a member of the mother’s family. They are identical to the concerns or allegations made by the mother on presentation at F Hospital – and also to the Police.
In October 2017 the father commenced the first parenting litigation.
At the trial before her Honour Judge Purdon-Sully the mother made no significant allegation against the father. No evidence has been drawn to my attention that would indicate that the mother alleged sexual abuse against the father at that trial. The mother did not allege neglect against the father at the trial. The submissions by Mr George of counsel on behalf of the ICL made on 10 October 2023 were also to that effect.
Barely six weeks after the making of the final order[11] by Judge Purdon-Sully the mother was again in touch with the Department of Child Safety. The notifications could only have come from the mother. That is the conclusion I have reached from the available evidence. The records of the Department are contained from page 450 of Exhibit 2. These records are dated early 2019. The notes of the Department state:-
•The notifier is aware ... [X] was reported to be attempting to forcibly try to kiss ... and trying to lick ...
•[X] reportedly said ... “see my boom boom” pointing to his bottom.
•[X] reportedly said ... “daddy licks me on my pee pee and boom boom and licks me on my face”.
•[X] reportedly said ... “can I touch my private parts its fair” ... [X] said “daddy told me”. [X] reportedly said “daddy said he will go down drain hole if don’t show with him”. ...
•[X] ... said to ... “bad people say rubbish and go to jail” ...[X] was a bit aggressive.
[11] Order dated 12 March 2019.
The Department wrote an assessment of the concerns. That is contained at page 456 of Exhibit 2 in the Department’s assessment. Reference is made to the fact that the notifier had made a number of previous allegations regarding sexual abuse of X by his father. The note says the Departmental records indicated that the previous allegations of sexual abuse had been unfounded. The Department said that:-
“...there were concerns that the mother may have been coaching [X] to make statements of abuse by his father.
The current information indicates all alleged statements have been made … with no evidence to indicate spontaneous disclosures by [X] to others or behaviours indicative of sexual abuse in other contexts … there are concerns that any investigation/interview completed by the Department without supportive evidence … could cause [X] further emotional harm."
It is apparent, therefore, that as early as early 2019 the Department was concerned that the mother may have been coaching X. That is apparent from the notes of the Department included above.
There is nothing contained in the mother’s trial affidavit (or in the affidavits of the other witnesses called on behalf of the mother) relating to early 2019 (or any other date thereabouts) that would accord with the complaints listed at page 452 of Exhibit 2. This is also the case in respect of a notification to the Department dated mid-2019 (page 458, Exhibit 2). There is nothing in the mother’s evidence relating to that date.[12]
[12] Or in the evidence of the other witnesses called on behalf of the mother.
At page 466 of Exhibit Two, the Departmental records indicate a notification in late 2019 was made. It is stated:-
“[In late] 2019 Brisbane RIS received the following information:
•Notifier reports that [X] displays aggressive behaviours ... significant anxiety.
•[X] has also reportedly disclosed that he plays 'boom boom' games with Dad and it's all about 'where the poopies come from' and to do with the bottom ...
•[X] states the games happen when they are both in the 'nudie rudie', and that he does not like playing these games and that "they're yucky". [X] stated his father uses his hands to push him ([X]) down on the bed and he doesn't like it ...”
There are no details in the mother's evidence, or in the evidence of the witnesses, relating specifically to that date. The maternal grandmother could possibly be alluding to it at paragraph 24 of her affidavit filed 12 September 2023 (Ms P).
Indeed, in the mother’s trial affidavit she provides no evidence of any disclosures of sexual abuse made to her by X prior to mid-2020.
The next relevant documents in evidence relate to notifications made to the Department in late 2019. There is evidence of a detailed notification made in late 2019 (from page 476 of Exhibit 2).
It is most likely that it was the mother who was the notifier to the Department in respect of the notification. At the very least, the notification was provided with full knowledge of the mother. That is the inference I draw from the evidence. At page 477 of Exhibit 2 it is noted that the Queensland Police Service told the Department they would not be progressing with a criminal investigation.[13] Further, and of particular note, is the fact that the Department held a discussion with a lady from the Q Early Learning Centre in Suburb R. At page 477 of Exhibit 2 there are contained the following notes relating to this discussion:-
“[In late] 2019, [Officer S] completed a pre-notification check with Director [Ms T] from [Q Early Learning Centre] in [Suburb R], whom provided the following information:
•There are no worries in relation to [X's] wellbeing or level of care provided to him. [X] is a beautiful boy and very well behaved and well looked after. There are no worries in relation to his behaviours or engagement with other children.
•he attends day care 4 days a week.
•The day care spoke with mum this morning as she had concerns about the lockdown procedures at the day care. She wanted to know what they were. She was asked if there is anything the centre should be aware of, she stated at this stage there was not.
•this was out of character for mum.”
(As per original)
[13] Note dated 14 October 2019 at page 477 of Exhibit 2.
At page 483 of Exhibit 2[14], the Department noted its concerns as follows:-
“Due to the ongoing nature of the concerns raised, consideration to assess the emotional impacts of the ongoing reports and allegations being made for [X] should be considered. However at this time there is limited information to indicate an escalation in the concerns raised, and/or a decline in [X's] behaviours suggesting a significant impact on him at this time. As such a CCR will be recorded.”
[14] Contained within the Department’s notes of October 2019.
During the course of the trial the mother sought to discredit the employee of the Q Early Learning Centre. Nonetheless, the independent note of the Department remains. The Director of the Q Early Learning Centre in Suburb R is a person who is independent of the parents in this case. This lady has provided a positive view of the child to the Department. In my view this assessment of the child by the Director of the Early Learning Centre is highly likely to be an accurate assessment. Such a person has no reason to mislead the Department. Notwithstanding the positive view of the child reported by the Director of the Q Early Learning Centre – the mother took the child two days later to F Hospital. The hospital prepared a referral for a paediatric sexual assault examination – based on what the mother had reported. This referral is Exhibit 7.
Exhibit 7 is dated late 2019. At that time, Dr U was the paediatrician for X. Two days after that date he wrote a letter to Dr V. The letter is contained at page 26 of Exhibit 2. In that letter it states:
“Certainly, within the clinical assessment today [X] was very comfortable with his father, and the interaction appeared to be totally normal with no concerns noted by myself during the time of the consultation and subsequently.”
Of particular note to the Court is, as at that date, X was noted to be “very comfortable with his father, and the interaction appeared to be totally normal”. The doctor noted no concerns. During late 2019 it is apparent from Exhibit 2 that reports were made by the mother relating to disclosures from X – of sexual abuse perpetrated by the father against X. The mother’s trial affidavit does not include any reference to disclosures made by X to her during that period of time. The notifications made to the Department of Child Safety relating to allegations of sexual abuse during that time, I infer, were made by the mother or by members of the mother’s family. There is no other explanation reasonably available to the Court.
The F Hospital records include a final report following the referral for a paediatric sexual assault examination. The relevant notes are dated late 2019 and that appears to have been the date of the examination itself. These notes are contained in Exhibit 8. These notes state:-
“[J Health Service] Review ([Dr W]/ [Dr Y]/ [Ms Z])
3 year old boy
Interview with Mother: [Ms Maris]
- Long history of behavioural concerns
- Began at 2 years of age, around same as he started to have overnight visits with dad
- Overnight visits twice a week - Saturdays & Sundays·
- Has a private paediatrician – [Dr U].
- [Dr U] initially referred to an of OT who provided some sensory strategies
- Also seen by psychologist ([Ms AA] – [BB Psychology]) for 6 sessions, taught good touch/bad touch
- Then referred on to CYMHS [Suburb CC] – has had one assessment, due for team to come out to house next week for further assessment
- One of the major issues was towards mother - hitting, kicking, attempted to suffocate mum with a pillow
- Behaviours have been worse over past 2 months
- Stating ‘daddy said you are a bad maggot from the bin'
- Stated ‘daddy said its lovely to hit”
- Stated 'granny should die’
- Has recently started to be violent towards the [pet]
- Squeezed the [pet’s] head, karate chopped the [pet’s] back
- Seems to flip between aggressive ++ to very loving
- Behaviour is always worse after [X] returns from Dad's place
- Also made unusual statements to mum and Gma
- Mum has made several recordings of these conversations on her phone
- 'I play boom boom games with daddy'
- 'Im naked on the bed. daddy's naked on the bed'; 'Daddy pushes me down on the bed'
- Has stated that 'daddy has put a pencil up my bum, I put something bigger up daddy's bum'
- Since returning from Dad's place on wednesday this week, [X] has seemed to be intentionally hurting himself
- Throwing himself forward onto the floor
- Intentionally rolled off the couch on Wednesday night ([…]2019) and hit […] the coffee table, [injuring himself]
- Last night, [Ms Maris], became very concerned as [X] made new comments
- At 6pm had dinner, then was 'throwing himself around' and appeared sad so mum read him some Christmas books
- Mum and [X] watched TV until 7pm
- Mum asked [X] why he appeared sad
- [X] stated 'the boom boom games have started up again'; 'Daddy plays boom boom games on my face'
- " daddy's pee pee went on my bottom' - he pointed to his anus
- ' Daddy put his pee pee in my mouth' - pointed to his mouth and down his neck
- Was a little difficult to settle then he went to sleep
- This morning he seems better, but has stated to mum ' I want to tell'
- Mum also spoke with [Suburb DD] CPIU
Medical hx:
- Constipation, from 2 years of age, previously on movicol, passes stool every 3 days, not hard
Social Hx:
- Attends childcare 4 days a week ([Q Early Learning Centre])
- Mum works […] 4 days a week
Additional history from [Suburb DD] CPIU
- Previous child safety investigation into these issues - Child safety has interview [X] twice in last 2 weeks and no disclosures were mad
- Child safety has closed their investigation yesterday and informed mother of the situation yesterday
- [X] has not had 93A performed
- [Suburb DD] CPIU requested that [J Health Service] perform our examination prior to them performing their interview”
(As per original)
The hospital notes confirm that the mother told the hospital (apparently on the same date) that “last night” X had made certain disclosures – referred to in the notes as “new comments”. Those disclosures are contained in the above quotation from the hospital notes. Those disclosures do not appear in the mother’s trial affidavit. However, in the affidavit of the maternal grandmother (Ms P) filed 12 September 2023 – the maternal grandmother notes that the mother told her in late 2019 that X had made similar disclosures to those contained in the hospital notes.
In any event, that day in late 2019 had been a very big day for young X. He was taken to the hospital and an examination took place. As noted above – the Suburb K CPIU had requested that the hospital perform the examination of X prior to the police performing their interview pursuant to s 93A of the Evidence Act 1977 (Qld) (“the Queensland Evidence Act”). After the physical examination of the child by the hospital – the mother took the child to Suburb K CPIU where the s 93A interview took place that day. I will return to that evidence shortly.
The hospital notes of late 2019 then state the results of the physical examination of the child – referred to as a paediatric sexual assault examination. The second page of Exhibit 8 reveals the following:-
“O/E:
- Very chatty
- When asked what happened […] - stated 'I fell off the couch and hit it on the coffee table'
- Dark purple bruise […]
- Normal eye movements, PEARL
TM clear bilaterally
- Normal throat: no oral injury identified
- Dual heart sounds, 2-3/6 systolic murmur, best heard over the lower left sternal edge, no radiation
- Chest clear, equal air entry B/L
- Abdomen soft. no masses, non tender
- Anus appears normal
- Normal male genitalia, no injury identified
- Multiple small bruises along anterior shins in keeping with normal pattern of childhood bruising
Impression:
- Bruising […], in keeping with history provided
- No other injury found
- Systolic murmur, likely innocent but will require follow up by usaul paediatrician
Plan:
1) Reported above findings to [Officer EE] of [Suburb DD] CPIU
2) Social work will provide further psychosocial support
3) OK for discharge home once SW completed assessment
4) Will arrange for private paediatrician to follow up murmur
[Dr Y]
[J Health Service]
[…]”
(As per original)
This child, amongst other things, was subjected to an examination of his throat, his mouth and his anus. The mother was adamant in the witness box that the hospital had not examined X's anus. The mother stated this on several occasions in the witness box. The mother also stated that both herself and her own mother (the maternal grandmother) were certain that the doctors had not carried out an examination of X's anus. The hospital notes reveal that there was an examination of X’s anus as part of the paediatric sexual assault examination. The examination noted that the child’s “anus appears normal”.
The Police records (Exhibit 6) contain an "investigation history summary". A helpful synopsis of the s 93A interview that took place in late 2019 is contained in Exhibit 6. The following extract from those records is relevant at this point:-
“Current investigation, […]2019 [Mr Maris] contacted [Suburb DD] CPIU and disclosed the new allegations about child [X] having his father's penis put down his throat. These were new allegations and not previously heard. S93A arranged immediately for child. Previously to this [Ms Maris] had declined to bring child in for s93A statement for previous allegations.
Synopsis of s93A:
Child presented with a bruise […], (Mother stated injury was caused by child falling from coffee table) the child appeared easily distracted within the s93A room, although child could explain objects within the s93A room, the child could not hold a conversation for any length and limited vocabulary.
Child on free recall did not disclose any particular offences, discussions surrounding visiting his fathers house still resulted in nil disclosure. Discussions surround games and activities whilst at fathers house resulted in nil disclosures.
Direct questioning about child playing 'Boom Boom' games as previously identified by [Ms Maris] resulted in child stating he does not know anything about Boom Boom games and does not understand.
Direct questioning about showering and sleeping activities resulted in nil disclosures.
Direct questioning of subject [Mr Elsdon] placing penis into child's mouth, resulted in child confirming that his dad willie in his mouth, down his throat and all the way to his feet. The child could not elaborate further and could not particularise the offence. Further direct questioning about this resulted in child stating "I don't know".
When asked if anyone had told him to say this, child has stated, "mummy told me", it could not be differentiated if child was referring to [Ms Maris] telling child to talk to Police or being coached.
Questioning directed around safety whilst at his fathers house, child stated he was happy and felt safe at fathers house.
Summary:
Child could not particularise and disclose with a level of criminality sufficient to proceed with any further action. Extensive in home and day-care assessments have been conducted by Child safety which resulted in nil disclosures and nil evidence.
Child was presented to [F Hospital] on [previous day] after alleged disclosures to mother about "boom boom" games, nil medical evidence located to support the allegations.
There is insufficient evidence to proceed by medical evidence, insufficient disclosures by the child and tainted evidence provided by [Ms Maris]. Evidence indicated offence did not occur, authorised OIC […]”
(As per original)
The video recording which constitutes the s 93A interview forms part of Exhibit 1 in these proceedings. All the s 93 interviews were watched – in their entirety – during the course of the trial. As the above synopsis shows the child did make disclosures to the police. Before the child said anything to the police about the father’s penis being place in the child’s mouth – the police officers conducting the interview asked a series of leading questions to the child. There are four s 93A interviews in total. It is only in this first interview that the child made an allegation that the father had sexually abused him. As noted, this only occurred after leading questions by the police.
On that same page of Exhibit 6 and as part of the investigation history summary, the Police have stated, about the mother:-
“Further, [Ms Maris] has supplied multiple recording to Police throughout that show child being heavily interrogated by [Ms Maris] and coaching child into disclosures.”
(As per original)
This is a crucial piece of evidence. It is evidence that is very worrying to the Court. During the trial I directed that the ICL make investigations to try to recover those recordings. An attempt was made, but the Police informed the ICL that the recordings had been destroyed. Nonetheless, the evidence is clear. The mother recorded the child. The mother provided the recordings (multiple recordings) to the Police. The Police listened to those recordings. The Police have written in their own notes their own observations – namely that the recordings by the mother show that the mother heavily interrogated the child and the recordings also show that the mother coached the child into making disclosures. This is why the Police have stated that the evidence provided by the mother was “tainted” (Exhibit 6).
The synopsis of the s 93A interview prepared by the Police confirmed that during that first s 93A interview the child had stated that he was happy and he felt safe at his father’s house. My own impression of the child during that interview was that when he stated that the father had placed his penis into the child’s mouth – the child did not display any concern, worry or upset.
Many of the disclosures included in the hospital’s notes above (information provided by the mother of disclosures allegedly made by X concerning sexual abuse) are allegations that X appears to have repeated on more than one occasion. This can be noted from a consideration of the mother’s trial affidavit and the affidavits of witnesses called on behalf the mother. This includes references to:-
(a)boom boom games;
(b)the father’s penis; and
(c)the father’s penis on the child’s bottom.
The conclusion I have reached is that the mother has questioned the child at length. The mother does not have the requisite skills to question a child who is making allegations of sexual abuse. The recordings given to the police show that the child had been heavily interrogated by the mother. The recordings given to the police also reveal that the child had been coached by the mother into making disclosures.
The mother’s evidence and the evidence of other members of her family (as well as the neighbour Ms FF) – in relation to X making disclosures to those witnesses – must be looked at in light of the fact that the mother had heavily interrogated the child and in light of the fact that the mother had coached the child into making disclosures.
The mother clearly lacks insight. She must have thought she was doing the right thing by interrogating the child and making the recordings which she gave to the police. The fact that the mother gave recordings to the police which showed that the mother was coaching the child into making disclosures – indicates to the Court that the mother must not realise what she has done. This is why have I have concluded that the mother lacks insight. The mother’s lack of insight is a significant problem for the child.
The conclusion I have reached is that this child is intelligent. The child tells the mother (and members of her family and friendship group) things that he thinks they want to hear. In this way, the inference I draw, is that the child is seeking reinforcement from the mother. It is important to remember that from the time the child was nearly one year old (or even earlier) the mother suspected the father of sexual abuse. It seems to me that the mother has gone to extraordinary steps to obtain evidence of sexual abuse. My impression of the mother from when she was in the witness box, is that she has been totally consumed by this issue. She obviously ruminates on this issue day and night. I find that it is highly likely that the mother has continued over time to heavily interrogate the child on a regular basis and to continue to coach the child into making disclosures. The mother’s aim was to exclude the father from the child’s life. The mother stated in the witness box that she has a genuine belief that the child had, in the past, been sexually abused by the father. There is no logic to the mother’s case. On the one hand she gave evidence to the Court that she believed that the child had been sexually abused by the father – on the other hand, the mother also told the Court in the witness box that she did not consider the child would be at a risk of harm in the future in the unsupervised care of the father. The mother lacks insight and the mother has shown that she does not have the ability to draw logical conclusions.
There are a large number of other disclosures made by the child relating to sexual abuse by the father. This evidence is contained in the trial affidavit of the mother and in the affidavits of witnesses called by the mother. The particulars of the disclosures made, almost without exception, continue to contain details that are similar to the disclosures made – as reported by the mother to F Hospital – and as noted in Exhibit 6 by F Hospital in late 2019.
It is important to bear in mind that the Court has had close regard to all the evidence – including all the evidence of conversations that X has had with the mother; with members of the mother’s family; with the maternal grandmother’s neighbour (Ms FF); and with counsellors. I will include a reference to some more of those conversations here in these reasons.
The maternal grandmother (Ms P)[15] amongst other matters, provided evidence relating to the following:
[15] Affidavit of Ms P filed 12 September 2023.
(a)X spoke to the maternal grandmother about playing “boom boom games with Daddy”, “nudie rudie games with daddy” and “that he has put a “green pencil up his bum””. It is altogether unclear from paragraph 24 of the maternal grandmother’s affidavit whether the allegation is that X said that he inserted a pencil up his own ‘bum’ or whether the father inserted a green pencil up X’s ‘bum’. The maternal grandmother says that these comments were repeated by X on several occasions in 2019 and then less frequently in 2020. Apparently X continues to make these comments, up until the present – but less frequently. The grandmother also says that the child told her that his father threatens X not to talk about ‘boom boom games’.
(b)The maternal grandmother says that in late 2019 the mother told the maternal grandmother that the child had made a disclosure “about having a “pee pee” in his mouth”.[16]
(c)In early 2020 the maternal grandmother says that X told her “I have two things to tell you Granny. Daddy put his pee pee in my mouth and daddy said he wasn't going to be bringing me back to mummy.”[17]
(d)In mid-2020 the child said, in the presence of the maternal grandmother, the mother and the maternal aunt (Ms GG) – that the father had spoken to the child about “boom boom games” and that the father had told the child to tell the maternal family “that for boom boom games he “likes little boys and girls but a bit bigger girls, not like [HH] but like [JJ]”.”[18] This was apparently upon return from a visit with the father.
(e)On another date in 2020 – the maternal grandmother attended at a changeover to collect the child. About half an hour after the changeover the child was sitting on the back verandah of the maternal grandmother's house and he said to the maternal grandmother “I play games with my Daddy”. The grandmother asked the child what sort of games he played and the child responded, “boom boom games”. She asked X where these games were played and he responded “on the couch”. The grandmother then asked the child what boom games were, and the child answered, “I don't want to talk about it”.[19]
(f)In late 2022 the maternal grandmother, the mother and Ms GG overheard a conversation amongst Ms P’s grandchildren and X was overheard to say, “I have a bad father” and when his cousin asked why – X responded “He plays boom boom games”. The child’s cousin asked what “boom boom games” were – but X did not answer.[20]
(g)The maternal grandmother also gave evidence that in late 2022 – after the other cousin had gone home – X told the maternal grandmother that he had wanted to tell his cousin about the boom boom games. The grandmother asked X what he wanted to tell his cousin and X then stated the following to Ms P:
[16] Paragraph 26 of the affidavit of Ms P filed 12 September 2023.
[17] Paragraph 27 of the affidavit of Ms P filed 12 September 2023.
[18] Paragraph 29 of the affidavit of Ms P filed 12 September 2023.
[19] Paragraph 31 of the affidavit of Ms P filed 12 September 2023.
[20] Paragraph 32 of the affidavit of Ms P filed 12 September 2023.
“33.After [KK] went home that afternoon, [X] told me that he wanted to tell [KK] about the boom boom games. I asked [X] what he wanted to tell [KK]. [X] then told me the following:
a. "It"' happened on a curved wall at his Father's unit [in Region LL];
b.[X's] Father pushed him up against the curved wall while they were both standing and fully clothed;
c.There was a hole in [X's] Father's pants, and [X's] Father put his penis into [X] mouth;
d.[X] cried for "the first few times" but his Father got angry so he didn't cry anymore.
34.After [X] made this disclosure, I was speechless. I was unable to speak about [X's] disclosure to anyone, even my husband, for some time.
35.In or around [late] 2022, I informed [Ms Maris] about the disclosure and contacted Child Safety about the disclosure, however Child Safety didn't call me back.
36.[In mid] 2023 after an overnight visit with his Father, [X] reported to me that his Father said to him "I will give you anything if you don't tell anyone about the boom boom games".”
Further evidence from Ms P relating to conversations with X include:-
(a)In mid-2020, the child said to the maternal grandmother and to the mother that his father had hit him. The grandmother indicated a moderate force. The boy also told the grandmother that he was scared of his father and didn't want to see him. X also told the grandmother and the mother that he saw the father fighting with his then girlfriend (Ms MM) and there was apparently some yelling and the throwing of things.[21]
(b)The maternal grandmother also states that since around 2021, X has repeatedly told her that the father only gives him vegemite toast or a carrot for dinner – whilst his father ate meals such as pasta and enjoyed desserts such as doughnuts and ice cream in front of X.
(c)In or around early 2023 the child began to exhibit odd behaviours in the presence of the maternal grandmother, including throwing soft drink cans over her backyard; cracking eggs from the fridge on the lawn; tipping over the outdoor furniture and tipping over items in the backyard.[22]
(d)During early 2023, the maternal grandmother says that the child told her that the father was drinking excessively and that there were broken alcohol bottles on the floor and that X would wear his shoes to bed, so he wouldn't cut his feet on the broken glass on the floor. The child told his grandmother that he would try to clean up after the father. X also told the grandmother that he would cook his own dinner by putting a packet of rice into the microwave – where he wouldn't cook it for too long because he was scared of burning his fingers. The child also reported that the father was too drunk to tie the child’s shoelaces on one occasion and on that same occasion X had to get to school on his own and the child was very nervous about that.[23]
(e)After Easter 2022 the maternal grandmother recalls the child telling her that he wanted to die so he would never have to see his father again. Later in 2022, the grandmother reports that the child expressed further suicidal ideation to her – along the lines that he wanted to die so he would never have to see his father again.[24] In late 2022 X also told the maternal grandmother several times “I want to kill my father because of all the bad things he's done”. The maternal grandmother also reports that she has witnessed bad behaviour from X in the periods of time leading up to changeovers.
[21] Paragraph 37 of the affidavit of Ms P filed 12 September 2023.
[22] Paragraph 49 of the affidavit of Ms P filed 12 September 2023.
[23] Paragraph 50 of the affidavit of Ms P filed 12 September 2023.
[24] Paragraph 54 of the affidavit of Ms P filed 12 September 2023.
The Court particularly notes that Ms E formed a favourable impression of the father’s new partner, Ms YY.
The reference to “paternal grandparents” before paragraph 64 in the recent family report – should have been a reference to “maternal grandparents”. In paragraph 66, Mr NN and Ms P revealed how they were also convinced that the father had recently moved close to the child's school and had been looking over the fence at the child. I already made findings earlier in these reasons that this is simply wrong. X has completely invented this story. The maternal grandparents believe the child without question.
The disclosure made by the child to the maternal grandmother referred to in paragraph 69 of the most recent Family Report has been referred to earlier in these reasons for judgment. This disclosure relates to the child alleging that he had been sexually abused by the father in the corridor or the hallway of an apartment in Region LL. That is the apartment owned by Ms YY’s father. Ms YY is the father's new partner. When the child is present at that unit there is also present, along with the father, Ms YY, and Ms YY’s father. The allegation is incredible. The father has denied it. I accept the father’s evidence. It did not happen. Yet, the maternal grandmother is utterly convinced that X is telling her the truth.
Ms E read the trial affidavits and Ms E watched the videotapes of the s 93A interviews.
I note the following evidence given by Ms E when cross-examined by Mr George of counsel on 9 October 2023. From page 352 of the transcript of that day I note the following:-
“MR GEORGE: ...Ma’am, the evidence before his Honour from each of the parties I want to take you briefly through. Firstly, the mother tells the court that she has a belief that [X] has been in the past sexually abused by his father but that she holds no concerns of an unacceptable risk of future sexual abuse. Despite that, she is still asserting that there either should be no time spent with [X] and his father or more probably contact between the two of them on the basis of two hours per month at a contact centre supervised; you understand that?
[MS E]: Yes, I do.
MR GEORGE: We’ve also heard evidence from the mother’s parents and other members of her family it is quite clear they are a very close-knit family and have frequent contact. There is also evidence that the maternal grandparents have a very firm view about the father’s sexual abuse of this child in the past and the possibility of that occurring again in the future. Given those facts, what risk do you assess if [X] remains in the primary care of his mother?
[MS E]: I think there will be further allegations. I think there will be further if not direct allegations about sexual abuse. There will be further acting out of behaviour issues that is then ascribed to the father – the way the father has related in the past and how he is relating in the present or the future for want of getting my tenses right.
MR GEORGE: Given what you’ve seen on the 93A tapes and, as you say, the boy saying one thing if he’s with his mum and saying another thing if he’s with his dad, what doubt does that raise in your mind about the assertions the mother has raised and others about what [X] has said and done whilst in their care?
[MS E]: --- Whilst in his - - -
MR GEORGE: In the mother’s care?
[MS E]: --- mother’s care? Okay. It has reached a point, I think, where I don’t know what to believe in terms of what this child says. I think that he – I think there are a couple of things. As I postulated in my report, it’s – it’s very probable that this child is learning that one of the ways to get a lot of attention is to make some comments about the other parent. Certainly whenever he says something like that, it’s just like pouring petrol on the parents’ hostile fire. But it’s also – it’s also a way, it seems to me, where this child will – is in the process of learning that he can escape learning to take responsibility for his own actions. For instance, just take the issue of kicking the rubbish bins. That was put to me as a behaviour that was indicative of the distress that the child experiences about being with his dad. I suppose that’s feasible, but not in this family. I don’t give it – I don’t ascribe weight to it. And my reaction would be to – to say, well, this is a child who needs to be told, “That’s just not on. You don’t do that. And you need to learn to contain your feelings. If you’re angry – okay – there are – anger – anger is fine. But what you do with your anger has got to be contained properly.” And unless he learns – unless he learns that sort of thing, I’m concerned about what will happen to him at a future point where he gets to be an adolescent and he has not learned proper responsibilities at an age appropriate level.”
I agree with this assessment of Ms E. In my view if the child remains living in the primary care of his mother there will be further allegations against the father.
Ms E notes that it is very probable that X is learning that one of the ways to get a lot of attention is to make some comments about the other parent. Ms E said that when the child says something like that – “it is just like pouring petrol on the parents’ hostile fire”. I accept Ms E’s opinion in this regard.
As to the evidence of Ms E about the importance of the child learning to take responsibility for his own actions – I note the further evidence of Ms E at page 353 of the transcript from line 17:-
“MR GEORGE: Would you see that as being a significant risk inherent with him remaining in his mother’s primary care?
[MS E]: It worries me greatly.”
Ms E then gave evidence that, in her opinion, the relationship between X and his mother is an enmeshed relationship and Ms E also stated that it is probably the case that the relationship between the mother and her family of origin is also a somewhat enmeshed relationship.
Ms E continued with her evidence as follows:-
“MR GEORGE: And the alternative, of course, is that [X] moves to the primary care of his father. What risks do you perceive to be associated with that move?
[MS E]: It will be – it will be difficult for [X] in – in the short term. He’s – he’s reliant on his mum. That’s all part of his sense of inner security. That he’s – it’s my view that he has a good relationship with his dad and that he can have that with his dad. So I’m inclined to believe that this is a family where we need to balance the short-term grief and sense of loss for the boy against his longer-term adjustment issues.
MR GEORGE: Okay. If the court were to consider that change in primary care, do you have any comment to make in relation to there being a shortish moratorium between the boy seeing his mum?
[MS E]: If the court were to go down that path, then I think that there is some benefit in that not so much for the child, but I know that the mother will be absolutely devastated, and I think that she would need some time to regain some level of personal composure.
MR GEORGE: And what sort of period would you be recommending?
[MS E]: I would say four to six weeks. I would certainly not go longer than six weeks.
MR GEORGE: And in relation to future time between the child and his mother, would you see there being benefit to the child by what we sometimes refer to as the usual orders of Friday after school to Monday before school each alternate weekend and half holidays?
[MS E]: That would be my recommendation.
MR GEORGE: And do you see there to be any need for a lead-in to those orders or those types of orders by way of any supervised time and whether that would achieve anything?
[MS E]: I don’t see that it would achieve anything.”
I will mention the question of supervised time again later in these reasons.
Mr George drew Ms E’s attention to the police note in Exhibit 6 from late 2019 where it stated that the mother had supplied the police with multiple recordings throughout that showed the child being heavily interrogated by the mother and showed the mother coaching the child into disclosures. At page 355[50] of the transcript - the evidence of Ms E continued:
“MR GEORGE: When I put that to the mother, she acknowledged that the police had, indeed, accused her of coaching the child. Does that lead you to any conclusions about future risk to [X] quite apart from sexual abuse?
[MS E]: That’s pretty worrying. It’s very worrying. It’s just whether – whether she did it intentionally or whether, as lots of parents do, they don’t understand the whole issue about leading questions. I don’t know. But it’s certainly – yes. It’s very worrying that the child is being essentially coached as to what is wanted – what – what is – what is wanted for him to say…
[MS E]: does that lead to that happening in the future? I can’t say that it does, but it’s certainly something you couldn’t – you can’t dismiss.”
[50] Page 355 transcript 9 October 2023 from line 1.
Ms E then went on to provide evidence of the risk of harm for the child if he remained in the mother’s primary care. I note the following:-
MR GEORGE: ...Are you able to make any assessment as to future risk of emotional, psychological harm for this child if he remains in his mother’s care?
[MS E]: The mother’s view of the father is that he’s the most reprehensible of human beings possible. The child’s view of himself is that he has part of his identity being his mother and part of his identity from being – drawn from his father. So what does it do in terms of the child’s views about himself? It – it splits him down the middle. It’s the sort of thing that will affect him in terms – that – sorry – might affect him. We can never say what the future will be. But it might well affect him in terms of his own ability to develop functional intimate relationships.[51]
[51] Note transcript of 9 October 2023 p.355 from line 12.
Ms E was then asked about one proposal that was then suggested by the mother. It is to be recalled that, at this stage in the proceedings, the mother's primary position was that the father spend no time and have no communication with the child. The mother's alternate position (at that stage) was that the child have time with the father for two hours per month supervised. Mr George asked Ms E what impact that would have on the boy's future relationship with his father and Ms E answered:-
[MS E]: Well, he’s not going to have one. You can’t – you can’t sustain a relationship between a parent and a child with supervised contact. That is only ever useful as an interim means for some particular reason that we’re concerned about or that we need to investigate further. It is not a means of sustaining a qualitative relationship with a child with – between the child and that parent.[52]
[52] Note transcript of 9 October 2023 p.355 from line 25.
Ms E was cross-examined by Mr Gordon of counsel on behalf of the mother – along these lines – if the Court came to a conclusion that the boy tells each parent what they want to hear and if the Court therefore concludes that there is not actually a risk in either household – should the present four nights per fortnight with the father remain the same? Ms E said from page 366[53], line 43:-
[53] Transcript of 9 October 2023.
[MS E]: I’m really struggling with it, because I just can’t see that – I can’t see that there’s no risk.
HIS HONOUR: So, what sort of risks do you identify?
[MS E]: The risks that – it strikes me is emotional abuse.
MR GORDON: Well - - - ?
[MS E]: That’s – that’s what worries me, I mean, I don’t – I don’t believe there ever was any sexual abuse, and you would be hard pressed to convince me that there was. But this whole process has been about emotional abuse and putting a child through this, and the child being told that – I mean, and the whole message about the father being some heinous individual who’s got nothing to offer. I mean, it’s just – it’s just emotional abuse, and I can’t find a lesser word for it. I mean, normally I try – I try to have a balanced view about what might lead someone to do that, but this has been going on for six and a half years.
MR GORDON: Well - - - ?
[MS E]: And there’s no let up.
I accept the evidence and the opinions of Ms E in relation to the harm caused to the child by the emotional abuse he has been subjected to by the mother. It is, obviously, a matter for the Court as to whether or not there was any sexual abuse. It will be apparent from the findings made by the Court that the Court is of the view that there has not been any sexual abuse of the child by the father. I have come to the conclusion that the child has suffered emotional harm living primarily with the mother. My view is that the boy has been subjected to emotional abuse at the hands of the mother – with the mother’s continual focus on sexual abuse allegations and allegations that the child has been neglected by the father.
In terms of s 60CC(2)(b) – the conclusion I have reached will be apparent from the findings that I have made. The child has not been sexually abused by the father. The child is not at risk of any harm in the unsupervised care of the father. The child has suffered emotional abuse in the primary care of the mother. In the child’s best interests there should be a change of primary residence followed by a moratorium of the mother’s time with the child.
One point raised by counsel for the mother is the fact that – if the child is at risk of emotional harm in the unsupervised care of the mother – alternate weekends (eventually) with the mother will still be a problem. The argument was put forward that the primary residence should not change because there is an implicit acceptance in the recommendation of alternate weekends with the mother – that the child is not at an unacceptable risk of harm in the mother’s unsupervised care. I reject that submission. It is obviously the case that what has been intended by the recommendation of Ms E is that it will be in the best interests of X to have less exposure to the mother and to the mother’s household. This can be done by significantly reducing the amount of time that the child spends with the mother. This can occur by way of a change of residence.
With the child living primarily in the care of the father, it is clearly contemplated by the expert Ms E that the child will be less exposed to any form of emotional abuse from the mother and this is in the child’s best interests. There is no recommendation that the mother’s time be supervised and no such order was ever sought by the father or by the ICL. I have a different view and I will return to this point shortly. But it is a very good idea for the mother to obtain counselling, whether from a psychologist or psychiatrist. Such an order is proposed by the ICL and the Court supports such an order.
PART VII OF THE ACT
It will be apparent that within these reasons for judgment I have, at considerable length, considered all of the relevant factors contained in s 60CC of the Act – without specifically mentioning the particular sections or subsections. I will now further refer to some of the provisions of Part VII of the Act.
The child is very young and has been at the centre of family law litigation for approximately six years. Any views that he has expressed cannot be given any serious weight by the Court. The child has been emotionally abused by the mother (s 60CC(3)(a)).
The child has a close and loving relationship with the father and the paternal grandmother. I accept the father’s evidence in this regard. I also accept that the child has a good relationship with the father’s new partner. The father provided this evidence, and I accept that evidence.[54]
[54] Section 60CC(3)(b) of the Act.
The child has a very close relationship with his mother. Unfortunately, it is so close a relationship that Ms E has described it as an enmeshed relationship. This is not an emotionally healthy situation for the child. I acknowledge that the child also has a close relationship with other members of the maternal family – including his grandparents. I also note Ms E’s evidence that the relationships within the extended maternal family are also somewhat enmeshed.[55]
[55] Section 60CC(3)(b) of the Act.
Both parents have wanted to be involved in making decisions for the child. Pursuant to the orders made by Judge Purdon-Sully the mother had sole parental responsibility. In view of the findings made by the Court and the conclusion of the Court that residence should change – the only logical and sensible order to make is for an order that the father have sole parental responsibility. This is so because these parents have been in such high conflict for so long that there will be no chance that they will be able to properly co-parent. There will be no chance that these parents will be able to make joint decisions as required in the event of an equal shared parental responsibility order. In the best interests of X, the father must have sole parental responsibility. The form of order relating to parental responsibility as proposed by the ICL is appropriate.[56]
[56] Section 60CC(3)(c) of the Act; s 61DA of the Act.
The parents have each maintained the child.[57] I specifically have rejected the allegation that the child has not been fed properly in the care of the father. I also reject the mother’s assertions that the child was at risk of harm in the father’s care because of medical reasons. Amongst other things, the mother was raising issues including the wearing of glasses by the child. This will be a matter for the father now that he will have sole parental responsibility.
[57] Section 60CC(3)(ca) of the Act.
Ms E has already noted that it will be difficult for the child at first when he changes residence. I have carefully considered the question of risk in relation to the child because of the change of residence that will occur. I note that the child has been in the primary care of the mother for all of his life. But the benefits to the child in the long term outweigh the short term risks. This was the input of Ms E’s evidence. It is also the view of the Court. The very great advantage in moving residence to the father will be that the child will be able to maintain a relationship with both parents. In the event that the child remained living in the primary care of the mother, the view that I have formed is that it is very likely that the child would not be able to maintain a relationship with the father. I am confident that the father has the appropriate parenting skills to help the child through this difficult transition period.[58]
[58] Section 60CC(3)(d) of the Act; s 60CC(2)(b).
There will be no practical difficulties or expenses involved in spending time with the child.[59]
[59] Section 60CC(3)(e) of the Act.
The father has the capacity to provide for the emotional and intellectual needs of the child. I am far from satisfied that the mother has that capacity. It is hoped that the mother will be able to gain that capacity – at least in relation to the child’s emotional needs.[60]
[60] Section 60CC(3)(f) of the Act.
There is no evidence that the child has any Aboriginal or Torres Strait Islander heritage.[61]
[61] Section 60CC(3)(h) of the Act.
There is nothing more that can really be said in relation to the attitude of the parents towards the child and the responsibilities of parenthood demonstrated by the actions of the parents. I do not think that the mother has deliberately or maliciously invented the allegations of sexual abuse. But the mother was clearly very open to the concept that the father is a bad person who is capable of criminal conduct. From the time that the child was an infant, only a few months after the parents’ final separation, the mother was on the lookout for evidence of sexual abuse by the father against the child. When the child was older the mother heavily interrogated the child and the mother, through leading questions, obtained from the child the allegations of sexual abuse against the father. The impression I formed was that the mother lacks the capacity to understand the harm caused to the child. Through her obsession the mother has cast the father as a heinous villain and this approach by the mother must stop. These reasons for judgment and the proposed orders will be made available to the mother’s psychiatrist and/or psychologist.[62]
[62] Section 60CC(3)(i) of the Act.
The Court has already made reference to the evidence relating to family violence, and there is no need for the Court to add anything further.[63]
[63] Section 60CC(3)(j) and (k) of the Act.
I accept that it is somewhat incongruous that the Court has made findings that the child is and has been at risk of emotional harm in the unsupervised care of the mother – and yet the future orders to be made will be for unsupervised time with the mother on alternate weekends and half holidays. But it is apparent from the evidence of Ms E that the child is very close to the mother. The mother has been his primary carer. As noted, the conclusion I have reached is that it will be in the best interest of X to significantly reduce the amount of time that X spends with his mother. This will mean, of course, that there is a corresponding significant increase in the child’s time with the father. In the father’s care the child is well-settled, happy, content, well-behaved and emotionally stable. I accept all of that evidence from the father.[64]
[64] Section 60CC(3)(m) of the Act.
SECTION 61DA AND SECTION 65DAA
Because of the findings made by the Court, it is apparent that it is not appropriate for an order for equal shared parental responsibility. The presumption in s 61DA has been rebutted. It will not be in the best interests of the child for there to be an Order for equal shared parental responsibility. Further, because of the findings made by the Court that the child has suffered emotional harm because of the emotional abuse perpetrated by the mother – these are further reasons why the presumption in s 61DA is rebutted. In those circumstances, it is not necessary for the Court to consider s 65DAA of the Act.
MORATORIUM OF TIME
Ms E recommended a moratorium of time of 4 - 6 weeks. Ms E did not recommend supervised time. However, in the context of this case, I consider that supervised time does have a role to play. My view is that there should be a four week moratorium where the child has no communication and spends no time with the mother or other members of the mother’s family. This is in accordance with the opinion of Ms E (noting the findings made by the Court). Following the moratorium there should be a four week period of supervised time at a contact centre. The mother’s conversations with the child will have to be closely monitored during the contact. This will require a supervisor to be present with the child and the mother at all times during the four week of supervision. This will achieve two things – firstly, it will enable the moratorium to remain at only four weeks – instead of longer. Secondly, it will mean there has been a close monitoring of the conversations between the child and the mother. The supervision is essential because of the findings I have made related to the mother’s previous interrogations of the child and the mother’s coaching of the child and the mother’s lack of insight. Hopefully, during the period of moratorium and the period of supervision – the mother will gain whatever assistance she needs from a treating psychologist or psychiatrist to assist her in gaining the insight that she will need to gain in order to properly parent X into the future.[65]
[65] Section 60CC(3)(m) of the Act; s 60CC(2)(b) of the Act.
I also am of the view that a parenting coordinator should be involved. Both parents accept this proposal from the ICL. It is in the best interests of the child.
One issue that is of concern is the fact that the mother works at the child’s school, XX School. The mother did say that she works some days each week at that school and some days each week at another school. The child has done very well at XX School. He is well settled. His school reports are generally positive. It is in the child’s best interests to remain attending XX School. This judgment is being delivered on 15 December 2023 and there is to be a four week moratorium of the mother’s time with the child. This will coincide with Christmas school holidays. Once school holidays return it will be appropriate for the mother to make other arrangements in relation to her employment at XX School during the period of moratorium (if it is still applicable) and during the period of supervision. In fact, the view that I have formed is that it would be much better for the child if the mother stopped working at XX School. No party has asked for such an order (as far as I am aware). I will not consider that matter any further in these Reasons for Judgment but I will leave it to the mother to carefully reflect on these Reasons for Judgment and the Court’s comments. In the event that either party or the ICL wishes to make a further submission in relation to the sole issue of the mother’s employment at XX School – I am including a liberty to apply order to facilitate the making of a further submission – should that become necessary.
The view that I have formed is that the orders proposed by the ICL are (generally) appropriate – with the variations that I have referred to. The orders should include a four week period of moratorium of the child’s time with the mother followed by a period of four weeks of supervision of the child’s time with the mother. Exhibit 12 contains the orders proposed by the ICL at the conclusion of the trial and, as I say, generally speaking those orders are appropriate. I have made some alterations to those orders. Those alterations will be apparent.
There will also be an order that the change of residence will occur forthwith on the day that judgment is delivered, namely Friday December 15 2023. On that day the child is to be brought to the Court and one of the Court counsellors will explain the orders to the child.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 15 December 2023
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