Fletcher and Littlemore

[2018] FamCA 1126

FAMILY COURT OF AUSTRALIA

FLETCHER & LITTLEMORE [2018] FamCA 1126

FAMILY LAW – CHILDREN – assessment of risk – where the Court finds there is no unacceptable risk of sexual harm to the child in the father’s care.

Family Law Act 1975(Cth) ss.60B, 60CC
APPLICANT:	Ms Fletcher

RESPONDENT: Mr Littlemore

FILE NUMBER: BRC 6093 of 2010

DATE DELIVERED: 20 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 15 May 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

NO APPEARANCE BY THE APPLICANT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms C Dart

INDEPENDENT CHILDREN’S LAWYER:

Ms R Rayment

ELR Law

Orders

1. That the parties shall provide to the Independent Children’s Lawyer and the other party the minute of interim orders they seek in respect of the child’s, X born … 2009 time with the father until the matter is finally determined, with such minute to be delivered by email by 4.00pm on 15 January 2019.

2. That if either party at the interim hearing (to deal with passport issue and interim parenting arrangements) on 21 January 2019 wish to provide further updated material on the form of interim orders, such affidavit shall be filed and served no later than on 15 January 2019.

3. That the mother’s Application in a Case filed 3 December 2018 be adjourned to 21 January 2019.

4. That these proceedings be adjourned for further case management and interim at 9.30am on 21 January 2019 in the Family Court of Australia at Brisbane.

5. That all parties appear personally before the Court on 21 January 2019.

6. That if the father fails to attend Court on the next occasions then the Court will take his failure as an indication, having read the Reasons for Judgment delivered orally on 20 December 2018, that he does not wish to participate in a further hearing.  If that is the case the Court will list the matter for undefended hearing and the matter will proceed in the father’s absence at a later date.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6093 of 2010

Ms Fletcher

Applicant

And

Mr Littlemore

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The parents of the child, nine years of age, had a brief relationship but never lived together.  The mother introduced the child to the father some 12 months after her birth.  Although different forms of care arrangements have been made since initial proceedings began in 2010, and whilst tensions have existed culminating in contravention proceedings and the need for family reports, final orders were initially made by Federal Magistrate Cassidy (as she then was) on 1 April 2011 providing for the child to live with the mother and to spend substantial time with the father.

2. The child has historically displayed, on all the evidence of the parties, sexualised behaviour beyond her years, and as early as June 2013, her kindergarten noticed some behavioural issues.  After starting preparatory school in Suburb B in January 2014, the parents noted some increasing sexual behaviour and discussed some change in care arrangements.  It seems they were able to communicate at a reasonable level at that stage, such that by August 2015 the parents agreed to trial the child living with the father during the week and spending time three out of four weekends with the mother.

3. By November 2015 the mother had formed the view that the trial arrangements were not working and sought the return to a week-about arrangement, as had previously been in place.  The father did not agree.  After an incident in August 2016 where it is alleged the child was found by her brother, Y, who is now aged 13, performing oral sex on a boy behind some bushes near the father’s home, not surprisingly, both parents were very concerned.

4. The mother filed an Initiating Application on 30 December 2016 seeking to vary the final orders made 1 April 2011.  The filing of this application was in part due to the father filing a contravention application on 18 October 2016, which he ultimately discontinued.  Although the tension between the parents was increasing, substantial time between the child and the father continued to occur and, relevantly, on 9 June 2017 (and before the family report of Ms C was available) the parents consented to an interim order before Judge Purdon-Sully that the child live with the mother and spend time with the father from after school Thursday to before Tuesday in week one and after school Thursday to before school Friday in week two (effectively six nights a fortnight).

5. A subsequent family report by Ms C dated 9 November 2017 recommended the child reside with the mother and spend regular time with the father and that the time be reduced to each alternate weekend from Friday to Monday.  The father did not agree with the report recommendations.

6. Relevantly, on 23 January 2018, the matter came before Judge Howard for an interim hearing (I infer to consider varying the earlier consent interim order made 9 June 2017, although there are no formal reasons available to this Court).  His Honour did not vary the orders and adjourned the parenting applications to a trial callover in October 2018.  This had the effect of meaning that the orders made by consent on 9 June 2017 were to continue to apply.

7. On 25 January 2018 (two days after the interim hearing) the mother says the child disclosed to her that the father had inappropriately touched her.  This allegation of sexual inappropriate touching resulted in the mother filing an affidavit on 6 February 2018 and, it seems, ultimately caused Judge Howard to “discharge” the orders made 9 June 2017 in respect of the father’s time with the child.  His Honour then transferred the matter to the Family Court of Australia for an urgent trial.  There are no reasons in respect of the orders made by Judge Howard for discharging the 9 June 2017 orders.

8. On 16 March 2018, the father filed a response seeking to set aside the final orders made 1 April 2011, and that the child should live with him and spend supervised time with the mother.  In view of this very long and difficult history, which is set out briefly so far, it is clear that the disclosure made on 25 January 2018 has had a significant effect, in that the child’s time with the father has ceased completely.  Although a trial was listed to commence before a visiting Judge in May 2018, ultimately, it was not possible to be heard by that Judge and it came into my list for hearing on 15 May 2018.

9. The father did not appear at that time, even though he had filed some material. He indicated in his affidavit that he felt the system was biased against fathers in particular, and I sensed that he felt he could not obtain a fair hearing. For reasons which I gave orally at the time, I formed the view in the unusual circumstances of this case that a discrete hearing as to whether the child was at an unacceptable risk of sexual harm from the father (as the mother asserts) should be conducted as permitted by Rule 10.14 of the Family Law Rules 2004.

10. Briefly, although I accept that to do so was unusual, in this case:

    (a)for the life of this child, she had spent substantial time in the father’s care until the disclosure on 25 January 2018;

    (b)such arrangements, including a period when the child (for some months) lived primarily with the father, were the result of either agreements reached by the parties or consent orders;

    (c)whilst other issues relating to the parents’ capacity to communicate and share parenting were raised in the evidence of both parties and the report of Ms C, it seemed that the catalyst for the father’s failure to attend the trial was his strong resentment to the mother’s allegation of sexual abuse; and

    (d)in the interests of the child, and I felt at the time the interests of justice, it would not have been appropriate to proceed to a full hearing on an undefended basis where a discrete hearing on the sexual abuse allegation might have “cleared” the air.

11. I note that the father has appeared before the Court today for the oral delivery of these Reasons.  I am not sure whether this is to reflect that the air has been cleared.  However, having received extensive written submission by the mother and the Independent Children’s Lawyer (“ICL”), it is proposed now to make some findings, limited although they may be, on the matters canvassed at the discrete hearing conducted before me.  Having done so, and limiting the Court’s consideration to this discrete fact, namely, is the child at risk of sexual abuse or harm in the unsupervised care of the father, it will then be necessary to list the matter for further hearing before final orders can be made or consideration given to interim orders.  I agree with the submissions of Counsel for the ICL at paragraph 58 that the father be given an opportunity to indicate whether he intends to further participate in these proceedings, and if he does not wish to do so, then the matter should be listed for an undefended hearing at a later date.

Principles about risk

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. This discrete hearing related to risk, and as such I adopt as a correct statement of the applicable principles and incorporate in these Reasons paragraphs 9 to 15 of the Independent Children’s Lawyer’s submissions filed 18 May 2018:

   9. The Court may pursuant to Rule 10.14 of the Family Law Rules 2004, on application under that Part decide an issue and/or order a hearing about an issue or fact.

   10.      In M v M [3], the High Court held at 77,081:

   ‘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 … (and) to achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.’

   11.      In a recent Full Court decision Stott & Holger and Anor [2017] FamCAFC 152, the Full Court said:

   34       The ‘unacceptable risk’ test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

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

   35       The ‘unacceptable risk’ test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [89].

   36       In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as: the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   37       As an eminent former judge of this Court has said (emphasis added): ... unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’…

   38       We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn [2006] FamCA 1316; (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FamCA 350; (2007) FLC 93-326 at [124] and [125]; Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344 at [66] and [67]).’

   12.      It is not the function of the Court to determine the guilt or innocence of the accused perpetrator of sexual abuse1 or physical abuse.

   13.      The Court should refrain from making a positive finding that an allegation of sexual abuse or physical abuse is true unless it is:

   a.        impelled by the particular circumstances to do so; and

   b.        satisfied according to the civil standard of proof, having due regard to the factors mentioned in Briginshaw v Briginshaw.  The more serious the allegations and consequences of them being proven, the more convinced a Court needs to be that such allegations are proven, albeit on the balance of probabilities.

   14.      The Court’s function is to determine whether live with or time/communicate with Orders would expose the child to an unacceptable risk of family violence and/or abuse and to act accordingly.

   15.      As a result, if there is insufficient evidence to find as a fact that the abuse occurred, or did not occur, the Court must then consider what findings the Court can make about the facts, that could underpin an assessment of unacceptable risk.”

4. In addition, I again emphasise that this case raises issues other than alleged sexual abuse, and those issues will be dealt with at a later time either in a hearing or as a matter undefended by the father.  I also acknowledge that whilst the mother seeks, in her very comprehensive (yet at times repetitive) submissions filed on 24 May 2018, to rely upon academic research, such “evidence” is not evidence that is admissible in this Court in that form.  This is consistent with higher authority.

5. Also, to the extent that the unrepresented mother asserts (at paragraph 13) that the Court of its own volition must undertake some form of inquisitorial role, that is incorrect.  In this case, the mother is highly and, at times, inappropriately personally critical of the ICL’s Counsel, Ms Dart.  I am satisfied that this one disclosure and the evidence surrounding it is properly before the Court through the efforts by both the mother and the ICL.

The evidence available

1. Considering the report of Ms C was completed before the allegation made 25 January 2018, the untested opinions about the parties’ personalities etcetera, is not of significant assistance for this discrete issue.  Obviously, they will be issues of some moment at a trial.  The father’s position denying any inappropriate touching whilst admitting playful tickling on parts of the child’s body (but not her genitalia) is before the Court clearly through his police interview (Exhibit 5) on 5 February 2018.  That interview was viewed by the Court in open Court, as was the interview of the child by police on 25 January 2018 (Exhibit 4).

2. I accept that the mother or ICL have not cross-examined the father.  However, his consistent denial/explanations can be taken into account, in my view, and given some weight.  The mother’s trial affidavit filed 1 May 2018 deals with multiple issues – some going back to 2010.  I did not, in this discrete hearing, require her to be cross-examined about those matters, nor further explore those issues, in view of the care arrangements entered into as previously set out, that is, whether the parties consented, notwithstanding these difficulties, apparently, to very inclusive care arrangements for many years.

3. I accept at a final hearing (whether defended or undefended) issues since 2016 may well be relevant to what orders are in the best interests of the child now.  I found the mother’s cross-examination by the ICL in this context was fair and not based on some prejudgment by the ICL, as the mother asserts.  I accept the mother, as unrepresented, may not be experienced in understanding the way in which cross-examination proceeds.  I also accept that being cross-examined and, in effect challenged, can be uncomfortable for a witness.

4. The ICL’s submissions do not seek that I make any findings as to credit about the mother, and I do not do so.  From the limited focus of the discrete hearing, I regard it as unsafe to make such a finding.  As an example, I do not find that the mother went through a process of “coaching” or “rehearsing” with the child before the section 93A interview.  I am satisfied the mother, upset as she says she was with the disclosure, did discuss the allegation with the child, however on a number of occasions after the initial disclosure.  Again, I emphasise, this is the only disclosure made by the child to the mother of sexually inappropriate behaviour by the father, essentially, since the birth of the child and 25 January 2018, some nine years.  I acknowledge that there were suggestions of some conduct very early in the piece, but that has been usurped by many years of unsupervised substantial time where the child has either spent time with the father or, as I have already indicated, lived with the father.

5. The other evidence of relevance additional to the police interviews is:

   (a)the mother’s trial affidavit and oral testimony under cross-examination;

   (b)the Magellan report;

   (c)the Notice of Risk filed 6 February 2018;

   (d)exhibit 1 (police statements); and

   (e)evidence of Dr D.

   The fact that I do not mention or record every submission made by the parties, which were lengthy and, as I have said already, in the mother’s case somewhat repetitive, is not to be construed as failing to consider such submissions.

Discussion of evidence

Nature of disclosure

1. As is often the case, there is hardly any corroborating evidence that supports or provides a context to what the mother says the child said to her on 25 January 2018.  In circumstances where the mother does not assert anything similar being said by the child about the father’s behaviour previously, the words on that occasion have significance.  The words said to be used are now repeated or, the ICL suggests, altered inconsistently include:

   (a)the mother says the child said that the father has been touching her “rude area” and explained that the father would create a game out of “tickling” her and that it has happened for “a long time” (mother’s Notice of Risk filed 6 February 2018);

   (b)the mother’s oral testimony was that the child told her the father had “been touching me down there”, although the mother was, under cross-examination, unable to recall whether she said “rude area” or “private parts”.  Certainly, the mother agreed that she continued to question the child after the initial disclosure because she wanted to get “some details”.  She was quite worried, and although she accepts she can be “paranoid” (her words) she did not (and still does not) believe the touching could be innocently explained (that is, mere tickling).  She further spoke with the child after the police interviews because she felt that they were still “investigating” and denies any further discussion with the child after the evening of 25 January 2018.  The mother was informed by police on or about 5 February 2018 that there would be no further investigating of the allegation because of lack of corroboration.

   (c)the child’s interview on 25 January 2018 has been viewed by the Court.  It is shown to have begun at 10.43am with police, which means that the mother took almost immediate steps after the disclosure to her to take the child to police.  The child did almost immediately, and with little prompting, according to what I saw, say that her “dad was being rude with my private parts” and that he called it “tickling”.  When she said she did not like it, she said that he did not stop initially.  She said he was tickling with his “finger”.  The child described being held down by the father.  The father “tickled the open part with his pointy finger”, the child said.  The father said he was going to tickle her and did on her neck, under her armpits – the father “got his pointy finger on the outside of my clothes on the private parts” and did not try to put his hand “under my shorts”.  The older sibling Y came in before the father “played with my private parts”, according to the child’s statement to the police.  She said it happened after that.  She described how the father had purchased groceries for lunch with her.  When further questioned she said it had happened “13 times before”, but then she could not remember when but that it was always at day time and she was always fully clothed.  There is no information as to why she chose the figure of 13.  She said she never felt pain.  On one occasion she says her father said “don’t tell mum”.  She says the father called it tickling and he has also tickled her “on my tummy”;

   (d)in exploring why the child said to the mother that she did not want to go to the father’s home, the child told police in the interview that her father’s house is “boring” and if the father is asleep “there is nothing to do in my room”, whilst at the mother’s home she gets to play with her little brother.  I regard these comments by the child as significant because it is my view that the mother has taken the view that the child expressing a wish not to go to the father’s home is connected in some way with her disclosure said to be of sexual abuse, whereas it seems more likely to me that it was her nine year old expression of being bored.  She also said to police that she told her mother “that dad touched me in my private part areas and I don’t want to go back to him.”  I can see why the mother may have misinterpreted the connection between these factors.  She said to the police that the mother said it is called “child abuse” and we will call the police, which is what she did immediately;

   (e)I have viewed the father’s police interview on 5 February 2018.  He chose to undertake the interview voluntarily.  He did not have a lawyer with him.  He maintained composure at all times, although he was clearly upset that such heinous allegations had been made against him in respect of his daughter.  He said in effect that:

   i)he was only tickling her;

   ii)the last time (three or four weeks ago) took place in his bedroom and she was being cheeky.  He said she enjoys the tickling.  He acknowledges that he pinned her down on her tummy and tickled her feet, and she is most ticklish on her feet;

   iii)he ever touched her anywhere else.;

   iv)the child usually calls her vagina “pussy”; and

   v)he described his daughter as a ball of energy.

   The father asserted the mother is making these allegations up for ulterior motives.  That is reflected also in his affidavit to the Court.

   (f)after the father’s interview, the police decided not to take further action;

   (g)the Magellan report about this incident records the following:

   On 25 January 2018 [E] Regional Intake Service received the following information from Notifier 1:

   ·The Notifier is aware that [Ms Fletcher] and [Mr Littlemore] are embroiled in a "volatile and ugly" Family Law ordeal in relation to the child;

   ·The Notifier is aware that today, the child was saying that she did not want to go to [Mr Littlemore’s] house, as per Family Law Orders;

   ·The Notifier is aware that the child stated to her mother, "but he touches me”;

   ·The Notifier is aware that today, as a result of the allegation, [Ms Fletcher] has taken the child into the local Child Protection Investigation Unit (CPIU) and they have formally interviewed the child. The Notifier is aware that CPIU have advised there is not sufficient evidence to progress with charging [Mr Littlemore];

   ·The Notifier is aware that [Ms Fletcher] has engaged the child with appropriate counselling to address these issues;

   ·The Notifier is aware that Child B has also propositioned the child "for sex" in the past;

   ·The Notifier is aware that the child has referred to [Mr Littlemore] playing the "tickle game", whereby they will both lie on the bed, and [Mr Littlemore] will tickle the child "down there" and that it has been happening for a long time. [Mr Littlemore] will tickle the child on her vagina area, above the clothes. The Notifier is aware that [Mr Littlemore] would use his "pointer finger" and will try to wiggle the finger to "open her vagina", only on top of clothing and only for two minutes;

   ·The Notifier is aware that they have known the child to display very sexualised behaviours, well beyond her years for a long period of time. The Notifier is aware that the child has been allegedly accessing pornographic material;

   ·The Notifier is aware that [Ms Fletcher] is not allowing the child to return to [Mr Littlemore]'s care today and will vary the Family Law Order.

   …

   Child Safety is worried about the physical, emotional and psychological well being of the child based on the allegations of sexual abuse. At this time, there is no tangible evidence of harm. It appears [Ms Fletcher] has taken the child down to the local CPIU, immediately after being in receipt of these concerns. Reporter has articulated that the child was interviewed by CPIU, but CPIU felt like they had no grounds to proceed with any criminal prosecutions. Allegations of sexual abuse have been raised against both parents, of which have never resulted in a substantiated notification nor criminal prosecutions. As the reporter stated, the parents are engaging in a "volatile and ugly" family law court ordeal, therefore one would have to question the intentions of the reporter. However, the history does suggest the child is engaging in sexualised behaviours, well beyond her years, and this has also been clearly articulated in the history, this needs to be acknowledged as a concern. [Ms Fletcher] at this time has refused to return the child to her father and is proceeding in varying the FLC Orders.

Dr D and the ICL, Mr Dooley

1. The mother engaged with a psychologist quickly.  Dr D provided reports to the ICL and was cross-examined before me by telephone.  The ICL (at the time Mr Dooley) filed an affidavit on 15 February 2018, which deposed to exchanges of emails with the mother, beginning with an email at 1.41pm on 25 January 2018, in which the first paragraph said “the allegations are of a long term (years) tickling game, whereby the child is tickled and touched on her vagina, through her clothing.”  This was the mother’s view then and remains the mother’s view, it seems from her evidence before me.

2. Mr Dooley is no longer the ICL.  Ms Rayment is now the ICL.  The email was sent by the mother after the child had been interviewed by police, and includes a statement that “the sergeant in this case told me that the touching was considered ‘inappropriate’ and may be deemed as ‘common assault.’”  There is nothing in the police records to indicate this was the view taken by the police, but I cannot say, of course, that a sergeant may not have said words to that effect to the mother.

3. I again note that the police have taken no action in respect of the father.  By 3.31pm on 25 January 2018, the mother informed the ICL Mr Dooley that she had “enrolled the child into the [F Group] Centre at [Suburb G] for weekly counselling regarding the allegations this morning”.  Whilst that counselling did not occur, commencing on 31 January 2018, the child had the first appointment (and ultimately only appointment) with Dr D.

4. By 13 February 2018, the ICL had formed a view that the mother’s case application (to suspend time) should be dismissed, and he gives evidence that Dr D, the Psychologist, telephoned him on 13 February 2018 expressing some concerns (as set out at paragraph 7 of Mr Dooley’s affidavit).

5. Not surprisingly, the mother was concerned by the evidence given by the ICL and purportedly Dr D, and emailed Mr Dooley’s affidavit to Dr D who provided a detailed response dated 16 February 2018 (see Exhibit 2) in which he said he would not provide an opinion as to the veracity of claims made, but was prepared to provide the child with therapeutic support.

6. In his cross-examination, I accept Dr D’s further evidence that from the one consultation he had with the child that:

   (a)the mother was present and gave him information about the child, telling her she made been ‘touched inappropriately’ involving tickling and touching her private parts.  It appears from the evidence of Dr D that these comments were made in the presence of the child by the mother;

   (b)the child seemed “keen to talk to” him, and said she felt better now that she had had somebody to listen to her (noting she had already spoken to police within the last week);

   (c)the child said her dad was tickling her and also in her private parts and that she tried to stop him but “he wouldn’t” and that it has happened for a long time.  She seemed sincere, Dr D said, in what she was telling him, but he had no “immediate impression that she was in an acute traumatised state”’ and

   (d)After speaking to the ICL, he was troubled by the complexity of the situation and history, which is why he made the comments he did, he said, to Mr Dooley.  I accept Dr D’s evidence as he recorded it; that is that the comments were made to him.

The mother’s evidence

1. The mother presses for a finding that the child is at an unacceptable risk of sexual abuse in the care of the father.  Whilst she also seeks such a finding in respect of Y, the evidence in this discrete hearing and the investigations related primarily to the father.  I accept that if this matter proceeds to a further hearing, the allegations about:

   (a)Y finding the child performing oral sex on a boy;

   (b)Y asking the child for “sex”; and

   (c)other alleged discussions,

   may need further exploration.

2. The father says, and I accept, that Y being aware of what seems to have been suggested as heinous sexual abuse of his little sister, is himself disgusted by and hurt by such allegations being made.  I again make the observation that both parties acknowledge that this child has demonstrated overly sexual behaviour for many years, well before the disclosure on 25 January 2018.  The reasons for that are unclear, yet both parties I think in a sense blame the other.

3. The mother says essentially:

   (a)that the disclosure on 22 January 2018 came without any prompting by her and was both a surprise and, I accept, very distressing to her;

   (b)that she acknowledges she discussed with the child before 23 January 2018, the date before Judge Howard, that she was going to help her reduce time with the father, and that after Judge Howard maintained the order, she was disappointed and told the child so the night of 23 January 2018;

   (c)she acted extremely quickly after the disclosure was made and arranged an appointment for the child to be interviewed by police within hours.  She contacted the ICL, as was appropriate.  I accept she was concerned (in view of the history of litigation) that she was not likely to be in contravention of orders of the Court without a reasonable excuse;

   (d)although she says she is 100 per cent facilitative of the child having a relationship with the father, at the time of the hearing before me in May 2018, the child had no physical or telephone contact with the father or Y since January 2018.  The court is not aware whether that is still the situation; and

   (e)she believes sexual abuse of the child has occurred, and that the father is a risk to her.

Conclusion

1. I have taken all of this evidence into account.  The standard of proof required to be applied by the Court is on the balance of probabilities.  In respect of all of this evidence, I make these findings:

   (a)It is likely the father did engage, as he says to police, in a tickling game with the child that included tickling her feet and other parts of her body.  Although the father said he did not touch any other parts, I think it likely that he did;

   (b)Tickling the child, and perhaps other children of the father, has been an activity that the father has engaged in often, and is like a game;

   (c)The “tickling game” occurs when the child has her clothes on, and there is no reliable evidence to suggest contact between the father and the child has occurred on her bare flesh to her genitalia or when she is naked;

   (d)It is possible, in my view, that during the course of the “tickling game” that the father may have come into contact with the child’s “private parts” but I am not satisfied that if it occurred, it was other than accidental.  I do not find that the father obtained some sexual gratification from the tickling game;

   (e)The ongoing “toxic” conflict between the mother and father has been longstanding and has created an enormously difficult environment for this otherwise delightful little girl to manage and navigate.  It is likely the child is aware of the conflict between her parents.  At the very least, the mother acknowledges she discussed with the child her intention to seek to reduce the father’s time.  That was the application she made to Judge Howard - to reduce time, not to stop it;

   (f)Whether the mother, as the father asserts, has coached or influenced the child about these allegations or other allegations and does so because of mental illness challenges, as the father asserts, I am not prepared to find at this stage.  Certainly, the mother and father give plenty of evidence of past issues and context in respect of these issues, and that could be important in the final trial.  This discrete hearing was not the opportunity to seek to unpack those issues; and

   (g)It is a very serious matter for a child to believe a parent has sexually abused them.  I do not know, of course, what the child thinks at this time, some nearly 12 months after the disclosure on 25 January 2018.  I do not know what other issues the mother may have discussed with her since then, as she admits she has in the past.  When all these factors and the evidence has been considered on the evidence available, I make a finding that the child is not at an unacceptable risk of sexual harm or sexual abuse in the care of the father.

2. I accept this is not the end of the matter.  The mother, apart from the allegations raised on 25 January 2018, raises other concerns about the father’s parenting capacity and attitude.  The father in response, and by seeking that the child live with him, raises concerns about the mother’s parenting capacity and attitude, together with her, what he claims, erratic mental health condition.  The mother says that the father has been denigrating of her to and in the presence of the child.  All these are factual issues to be determined at a later date.

3. Whether they are issues that now need to be examined by way of a further family report are not certain.  However, I think it would be helpful if Ms C had the opportunity to update her family report by at least an interview with the child.  Whether or not it is necessary, considering the parties have already been interviewed, to speak to the parents I shall leave to the ICL and Ms C to determine.  I believe the issues as to what long-term orders should apply could be dealt with by these parties on their current evidence with any brief updating evidence within a two day hearing period.

4. I note that the father has appeared before the Court today, which I think is good.  The mother is also here.  She may not agree with my finding.  Nonetheless, both parties, I think, should have a chance to reflect on the reasons I have given today, which are given orally as we approach Christmas in less than a week and which will be published in a written form for the parties, both unrepresented, to properly consider.

5. I note that the father has expressed a view that the Court is biased against fathers in general.  Even if that is his view (which of course I do not accept) he will need to indicate, after he has read these Reasons, whether he intends to participate in a trial of all these other issues which ultimately are distilled into orders which the Court believes, after all evidence is tested, are in the child’ best interests.  It does not seem that this couple have ever had a trial.  They have had a number of final orders.  They have had a number of interim orders.  They have had family reports, but they have not, to date, been exposed to the cross-examination that witnesses are generally exposed to when a trial proceeds.

6. Clearly, if the father does not intend to participate, noting that there is nothing to suggest that the mother would in any way not wish to participate, then I agree with the ICL that the matter could then proceed to an undefended hearing.  Of course, it is worth noting that even if undefended, that is, with the father not participating, the Court must be satisfied that the orders it makes ultimately are in the best interests of the child.  As I have indicated, I will cause these oral Reasons to be published and made available to the parties in the week of 7 January 2019.

7. I will list the matter for further directions at 10.00am on 21 January 2019.  The parties are directed to attend.  If the father fails to attend, then the Court will take his failure as an indication, having read these Reasons, that he does not wish to participate in any further hearing.  If that is the case, the Court will list the matter for an undefended hearing and the matter will proceed in the father’s absence at a later date and hopefully shortly thereafter.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 December 2018.

Associate: 

Date:  11 January 2019