Fletcher & Haley - [2021] FamCA 402

FAMILY COURT OF AUSTRALIA
Fletcher & Haley [2021] FamCA 402

File number(s): BRC8086 of 2017

Judgment of: HOWARD J

Date of judgment: 18 June 2021

Catchwords: FAMILY LAW – PARENTING – competing ‘live with’ applications in respect of a nine year old boy – where the child has lived with the father for the past four years and seven months – where the mother and the maternal grandparents each seek that the child live with them – risk issues – capacity of the mother to parent – ability of mother and maternal family to facilitate a relationship with the father – intractable conflict between the parties – allegations of sexual abuse in the father’s care – where the allegations are unfounded – consideration of unacceptable risk.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 140

Evidence Act 1977 (Qld) s 93A

Cases cited:
Baghti & Baghti & Ors [2015] FamCAFC 71

Banks v Banks (2015) FLC 93-637

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1894) 6 R 67

Cox v Pedrana (2013) 48 Fam LR 651

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Fitzwater and 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) 19 Fam LR 837

Johnson v Page (2007) FLC 93-344

LC and TC (1998) 23 Fam LR 75
M v M (1988) 166 CLR 69
Napier v Hepburn (2006) 36 Fam LR 395.
Qantas Airways Ltd v Gama (2008) 167 FCR 537.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Number of paragraphs: 129

Date of last submission/s: 26 May 2021

Date of hearing: 24, 25 and 26 May 2021

Place heard: Hervey Bay

Place delivered: Brisbane

Counsel for the Applicant: Ms Chekirova

The Respondent attended as a self-represented litigant

The First Intervenor attended as a self-represented litigant

The Second Intervenor attended as a self-represented litigant

Counsel for the Independent Children's Lawyer: Ms Firth

Solicitor for the Independent Children's Lawyer: ELR Law
ORDERS

BRC8086 of 2017

BETWEEN:
MR FLETCHER

Applicant

AND:
MS HALEY

Respondent

AND:
MS ARNOLD

First Intervenor

MR ARNOLD

Second Intervenor

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

18 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders be discharged.

Parental Responsibility
2.That the father have sole parental responsibility for the major long term decisions concerning X, born …, 2012 (“X”).

Lives With
3.That X shall live with his father.

Time
4.That X shall spend time and communicate with his mother during the times X is spending time with the maternal grandparents, provided:
(a)It is at times agreed to by them; and
(b)It occurs in the presence of one or both of the maternal grandparents.

5.That X shall spend time with the Mother, in the presence of one or both of the maternal grandparents, on Mother’s Day, from 9:00am to 5:00pm.
6.That X shall spend time and communicate with his maternal grandparents at all times as agreed between the mother, father and maternal grandparents and failing agreement as follows:
(a)Each Tuesday from after school or 3:00pm until 7:30pm;
(b)Each alternate weekend on either Saturday or Sunday from 9:00am to 5:00pm;
(c)This time to continue throughout the school holiday periods save that for one (1) week in each of the Term 1, 2 and 3 holidays and for a two (2) week block in the Term 4 school holidays the time will be suspended and X shall spend time with his father.

7.That no party shall denigrate or speak negatively of any of the parties or their family members in the presence of, or within hearing of X, nor permit any other person to do so.
8.That each of the parties are to attend upon D Service to obtain information and undertake and complete any education and courses recommended by D Service.
9.That the father shall engage with D Service to ascertain any additional supports they may be able to provide to assist X.
10.That the Independent Children’s Lawyer be discharged.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher & Haley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background

The applicant father in this matter is Mr Fletcher. He was born in 1985.
The respondent mother is Ms Haley. She was born in 1989.
The parties commenced a relationship in or about November 2010. They married in 2011. The parties separated in October 2015. A divorce order was made by a Registrar of the Federal Circuit Court of Australia (‘the Federal Circuit Court’) on 10 January 2017 and took effect from 11 February 2017.
The parties have one child together – X born in 2012. The parties have not been able to reach a final agreement in relation to the parenting arrangements for X.
An Initiating Application was filed by the father in the Federal Circuit Court on 4 August 2017 pursuant to Part VII of the Family Law Act 1975 (Cth) (‘the Act’). At that time the father’s application was supported by the Department of Communities, Child Safety and Disability Services (‘the Department’).[1] The Department was at that time named as the Second Respondent in these proceedings.
[1] ‘The Department’ is a Queensland State Government department and is now known as the Department of Children, Youth Justice and Multicultural Affairs.
By Order of Judge Turner of the Federal Circuit Court on 6 December 2017, the maternal grandparents were granted leave to intervene in these proceedings and designated by the Court as the First and Second Intervenors respectively. The Department was also granted leave to withdraw from the proceedings on that day. The First Intervenor, Ms Arnold, was born in 1963. She is the maternal grandmother. The Second Intervenor, Mr Arnold, was born in 1947. He is the maternal grandfather.
When the matter was before the Federal Circuit Court on 14 June 2018 an order was made for the child to live with the father and spend supervised time with the mother. That order was made by consent.
The parties were able to reach a further interim agreement as to time and the Court made an Order with the consent of the parties in Chambers on 6 December 2019. That order relevantly provided that the child would spend time with the parties as follows:-
…
9. That child live with the father and spend time with the with the first and second intervenors as follows:
a. From after school each Tuesday until before school each Wednesday; and
b. Every second weekend from after school Friday until 4pm each Sunday.
10. That the child will spend time with the mother unsupervised (during the times the child is spending time with the first and second intervenors and as agreed between the mother and intervenors) as follows:
a. During the usual weekend time as per Order 9 above, for a period of 4 hours for 3 visits.
b. Thereafter, during the usual weekend time as per Order 9 above, for a period of 8 hours for 3 visits.
c. Thereafter, during the usual weekend time as per Order 9 above, from 9am Saturday to 4pm Sunday.
11. That the child will also spend time with the first and second intervenors from after school Friday 6 December 2019 until 4pm Sunday 8 December 2019 and that the child will be at liberty to spend make up time with the father from after school Friday 13 December 2019 until 4pm Sunday 15 December 2019.
12. That Order 9 be suspended during the 2019/2020 Christmas school holidays and the child spend time with the first and second intervenors as follows:
a. From 4pm Sunday 15 December 2019 to 4pm 27 December 2019 with the mother to spend time with the child during this time unsupervised for 3 separate 4 hour periods and then 2 separate 6 hour periods as agreed between the mother and intervenors.
b. That notwithstanding the provisions of Order 12(a) above, that the child be at liberty to spend time with the father on Christmas day from 10am until 3pm.
c. From 4pm 10 January 2020 to 4pm 19 January 2020 with the mother to spend time with the child during this time unsupervised for 4 separate 6 hour periods as agreed between the mother and intervenors.
d. From 10am to 2pm on the 1st of January 2020.
13. That should the father be unable to finish work on time of an afternoon, that the mother be given first right to care for the child until such time as the father is available to collect the child.
…
That Order remained the current operative parenting Order in this matter until the conclusion of the final hearing in this matter on 26 May 2021. On that day, the Court made a further interim Order which varied the 9 December 2019 order by suspending paragraphs 10 b) and c) and removing the words “for 3 visits” from paragraph 10 a) – leaving paragraph 10 a) as the operative Order for the mother’s time with the child. This reflected the time that the mother had been spending with the child prior to the final hearing of the matter. The mother had been under a misapprehension in respect of the Orders which had led to mother not progressing her time with the child as contemplated by paragraphs 10 b) and c) of the Orders made 9 December 2019. At the conclusion of the final hearing, the Court’s view was that until the making of final orders, it was appropriate for the time that had been occurring between the mother and the child (a period of 4 hours every second weekend) to continue.
Unfortunately, due to the global COVID-19 pandemic, the matter was delayed from reaching nominated final hearing dates in April 2020; later in 2020 and in early 2021.
It was apparent to the Court that the mother and the maternal grandparents had some significant difficulties in organising to be present in Brisbane for a final hearing. The mother and the maternal grandparents were unrepresented. There would have been, in my view, procedural fairness issues arising if the Court had proceeded with a final hearing by video-link. The maternal grandparents live in E Town, Queensland. The mother lives in Suburb F in City G, Queensland. The father lives in H Town, Queensland. The child attends the J School. V Town is a town close to E Town. Sitting as a Judge of the Federal Circuit Court I set the matter down for a special circuit sitting to prevent any further delay in the matter. I set the matter down for 4 days from Monday, 24 May 2021.
Because of the complexity of the matter, Her Honour Judge Spelleken of the Federal Circuit Court transferred the proceedings to the Family Court of Australia. Following my appointment as a Judge of the Family Court of Australia on 6 April 2021, I was able to hear the trial in in Hervey Bay.
Parenting
The trial proceeded in Hervey Bay over a 3 day period commencing on Monday, 24 May 2021 in the Family Court of Australia.
The applicant father seeks identical parenting orders to those sought by the Independent Children's Lawyer. In broad terms, those orders are that the father would have sole parental responsibility and that the child X should live with the father and spend time with the mother when the child is spending time with maternal grandparents. The father and the Independent Children’s Lawyer seek an order in the following terms in relation to the child’s time with the maternal grandparents:-
X shall spend time and communicate with his maternal grandparents at all times as agreed between the mother, father and maternal grandparents and failing agreement as follows:
Each Tuesday from after school or 3:00pm until 7.30pm;
Each alternate weekend on either Saturday or Sunday from 9:00am to 5:00pm;
This time to continue throughout the school holiday periods save that for one week in each of the Term 1, 2 and 3 holidays and for a 2 week block in the Term 4 school holidays the time will be suspended and X shall spend time with his father.
The father and the Independent Children’s Lawyer seek an order that X’s time with the mother occur “in the presence of one or both of the maternal grandparents”. The order sought is not, in strict terms, a supervision order.
The mother seeks an order that the child should live with her. In the alternative, the mother seeks an order that the child should live with the maternal grandparents. The mother seeks that both she and the father have equal shared personal responsibility. The mother also seeks that the child spend time with the father “on times suitable and agreed to between Myself and Mr Fletcher”.
The maternal grandparents, at the trial, sought an order that X live with them. During submissions on 26 May 2021, the Court directed the Independent Children’s Lawyer to forward to the other parties and to the Court a written draft order reflecting the oral submissions made in Court on 26 May 2021. The other parties were also given leave to forward proposed orders in writing. The father (through his counsel, Ms Chekirova) informed the Court on 26 May 2021 that he supported the orders sought by the Independent Children’s Lawyer. The Independent Children’s Lawyer forwarded draft orders to the Court on 28 May 2021. The mother forward draft orders to the Court on the same date, 28 May 2021. No email was received from the maternal grandparents. However, as noted, the maternal grandparents sought at the trial that X live with them. The maternal grandmother stated in evidence (page 168 of the Transcript on 25 May 2020) that she thought X should spend time with his mother and father on alternate weekends. During the week, X would live with the maternal grandparents. The maternal grandfather agreed in evidence with that proposal by the maternal grandmother (note pages 200 and 201 of the Transcript on 25 May 2021). The maternal grandparents also sought that they be granted sole parental responsibility in respect of the child.
For the reasons that follow, I have come to the conclusion that the orders sought by the father and the Independent Children's Lawyer are in the best interests of the child.
Part VII of Family Law Act 1975 (Cth) deals with applications for parenting orders.
The Court is not bound to consider the sections and subsections of Part VII in any particular order: Cox v Pedrana (2013) 48 Fam LR 651 at paragraph 29; Beckham v Desprez (2015) 55 Fam LR 310 at paragraph 31.
The Court is not required to make findings in relation to all those facts that may be in issue between the parties. As stated by the Full Court of the Family Court of Australia in Baghti & Baghti & Ors [2015] FamCAFC 71 at paragraph 63:-
…we also make the point that it is beyond doubt that a 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.
The Full Court cited Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, where Mahoney JA (in the Court of Appeal in New South Wales) stated at pages 385-386, inter-alia:-
… 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…
Further, I note what the Full Court had to say in Eagle & Scarlett (No.2) [2020] FamCAFC 291. At paragraph 103, the Full Court stated, inter-alia:-
…it is useful to state that it is not incumbent upon a trial judge to refer to every piece of evidence relied upon by the losing party, or to traverse every argument advanced by them
The Full Court in Eagle relied on a decision of the High Court of Australia in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62.
Section 60CA
Section 60CA of the Act states:
60CA Child’s best interests paramount consideration in making a parenting order
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.
In determining a child’s best interests, the Court must consider the matters set out in the primary considerations in section 60CC(2) and the additional considerations in section 60CC(3) of the Act. The obligation to “consider” the various matters in Section 60CC does not require a trial judge to specifically discuss each factor: Banks v Banks (2015) FLC 93-637 at paragraph 49. The primary considerations are as follows:
Primary considerations
(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.
(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)
Section 60CC(2)(b)
The maternal grandparents both filed trial affidavits on 22 January 2021. They relied upon those affidavits at the final hearing. In the affidavits of the maternal grandparents they annex a document which they have each called a “chronology”. In the maternal grandmother’s trial affidavit there is a document called an “Annexure Sheet”. It is also referred to as exhibit C. Using the numbering in the middle at the bottom of each page – I refer to page 6 of 32. In that annexure (which is in fact a document apparently sworn before a Justice of the Peace on 20 January 2021) – the maternal grandmother stated, inter-alia:-
…On 15th June 2016 during his bath time [X] made a disclosure and made a masturbation motion about His father to which I emailed the Department, On the 16th June. This is my duty of care to report any disclosures. I also informed out case worker – At [K Child Services] in [City L].
15. On the 16^th June 2016 The CSO supervised a home visit with mum, [X] had disclosed to the CSO that his father pulls on his “diddle” and that’s was secret [X] again made a masturbation Motion. All visits were now restricted.
…
In the same document (at paragraph 22 on page 7 of 32) the maternal grandmother states:-
22…I was preparing lunch when [Mr Arnold] informed me that [X] told him “Daddy Was still touching him” I need to go to the shop and [X] wanted to come and get an ice Cream for him and [Grandpa]. Before turning off the ignition [X] “[Grandma] my dad still touching me”…
The evidence indicates that the disclosures (in the last preceding paragraph) are said to have been made by X on 4 January 2017 to the maternal grandfather – who then passed it on to the maternal grandmother. Further, the quote indicates a disclosure made by X directly to the maternal grandmother. These disclosures are said (by the maternal grandmother) to have taken place on 4 January 2017 when the child was having a morning visit with the grandparents.
In the affidavit of the maternal grandfather in the paragraphs numbered 84 and 85 (on pages 27 of 32) – there is contained the following evidence contained in a document that is in the form of a sworn document before a Justice of the Peace dated 20 January 2021:-
84. On or about 16 June 2016 I had been in the shed. [Ms Arnold] told me she was going to bath [X]. When I came back into the house [Ms Arnold] said to me that when she was drying [X] around his groin, [X] said to her that his daddy used a masturbating motion on his penis. [Ms Arnold] told me that she was going to make a notification to the Department of Child Safety.
85. I was later advised by the Department that the notification was unsubstantiated and further, I later read that the Department formed a view that “…There is information to suggest that [X] may have been coached into making disclosures by the Kinship Carers who are demonstrating they are strongly opposed to reunification of [X] to [Mr Fletcher] care

In the paragraph numbered 97 on page 29 of 32 of the same annexure – the maternal grandfather states:-
97. We then had [X] again for 2 hours on 4 January 2017, which was organized by the Department of Child Safety. On that day l recall that [X] was sick and had a temperature. I thought he was feeling a bit "down in the dumps". I asked him if he was okay and he said to me "[Grandpa], daddy's still touching me”. I did not react, but I did go into the kitchen and speak to [Ms Arnold] and told her what [X] had said. We both agreed it was pointless talking to the Department of Child Safety as they would not take us seriously anyhow.
It is unusual to find such serious allegations tucked away in an annexure to a trial affidavit. I do note that the maternal grandparents are self-represented litigants. During the conduct of the trial the maternal grandparents had an opportunity to cross-examine the father. The father was not initially questioned in any way in relation to the content of the disclosures made by X to the maternal grandparents. Furthermore, the mother (who was also self-represented) did not cross-examine the father in relation to any of the disclosures that had been made by X to the maternal grandparents.
It seemed, therefore, that the historical allegations contained in disclosures made by X in 2016 and 2017 were no longer live issues at the final hearing. However, when Ms Firth of counsel (on behalf of the Independent Children’s Lawyer) was cross-examining the mother, the maternal grandmother and the maternal grandfather – it became apparent that all three parties maintained the view that X had been sexually abused by the father. The mother and the maternal grandmother both gave evidence that they were of the view that the child remained at risk of sexual abuse in the care of the father. In this regard, I note the mother’s evidence at page 71 of the Transcript from lines 4-8 of 24 May 2021. I also note the evidence of the maternal grandmother at page 173 of the Transcript from lines 26-31 of 25 May 2021.
I note the evidence given by the maternal grandmother (Ms Arnold) on 25 May 2021. The evidence appears from page 175 of the Transcript on that day. I note the following:-
MS FIRTH: …I want you to tell me, then, each time – to be clear then – that [X] has spoken to you about allegations of sexual abuse by the father. I want you to be very specific as to a date, if you can recall it, or a close date?
[MS ARNOLD]: Yes.
….
MS FIRTH: And what exactly X said to you on those occasions?
[MS ARNOLD]: Okay, that’s fine. Okay, the first time he made a disclosure was on 15 June '16.
….
MS FIRTH: And he spoke directly to you?
[MS ARNOLD]: Yes.
MS FIRTH: Right. What did he tell you on that day?
[MS ARNOLD]: I was drying – I have a bath. He was standing on that, and I was drying him from the bath to get him into his pyjamas. And I was drying his legs and around his groin and that, and he goes, “My dad touches me, [Grandma].”
….
MS FIRTH: Right. All he said was, “My dad touches me.” Did he motion anywhere?
[MS ARNOLD]: … I said, “What do you mean?” “My dad does this.” With his hand, he went…
MS FIRTH: Right. Okay?
[MS ARNOLD]: Okay? A motion.
MS FIRTH: So you’re motioning a pulling-type motion, right?
[MS ARNOLD]: Yes.
MS FIRTH: Did he indicate to you where he does this?
[MS ARNOLD]: He did it – he held his hand there.
MS FIRTH: Right, okay. Did you ask any other questions of him?
[MS ARNOLD]: Yes, I did, unfortunately.
MS FIRTH: And what did you ask him then?
[MS ARNOLD]: I said, “Where does this happen?” He said, “At Dad’s place.” “When does this happen? Are you home alone?” And he goes, “Yes.” “And where does it happen?” And he said, “In the bedroom.”
MS FIRTH: Right. And did you ask anything else about what he was doing in the bedroom, or how it happened, or anything of that nature?
[MS ARNOLD]: No, I was just shocked.
MS FIRTH: Right. Can you think of any innocent explanation as to why something like that could happen?
[MS ARNOLD]: No. No.
MS FIRTH: And did you ask whether it happened on the outside or inside of his clothing?
[MS ARNOLD]: No. No.
MS FIRTH: Do you consider it could be something such as towelling him dry or something of that nature?
[MS ARNOLD]: No.
….
MS FIRTH: No. So from that conversation, what did you understand [X] to be telling you?
[MS ARNOLD: That he father was interfering with him, yes.
….
MS FIRTH: And by “interfering”, what do you mean?
[MS ARNOLD]: Masturbating him.
MS FIRTH: Right. So you were – your evidence is that he told you that in June 2016?
[MS ARNOLD]: Yes.
MS FIRTH: All right. 15 June, I think you said?
[MS ARNOLD]: 15 June.
The maternal grandmother then gave evidence of a further disclosure having been made by X in September or October 2016. This disclosure is not mentioned by the maternal grandmother in the annexure to her trial affidavit – where she had documented in a methodical way events relevant to this issue. There is no explanation from the maternal grandmother as to why the trial affidavit did not contain any reference to the September/October 2016 disclosure. In her evidence given on 25 May 2021 the grandmother stated from page 177 line 31 of the Transcript as follows:-
MS FIRTH: Right. Okay. So I want to know the next time he said something to you directly. That’s what I’m trying to focus on?
[MS ARNOLD]: In the September or October, I took [X] myself away from what was happening around us by putting him in the car and went to my parents.
MS FIRTH: September/October ’16?
[MS ARNOLD]: Yes.
MS FIRTH: Right?
[MS ARNOLD]: Yes.
MS FIRTH: And what happened on that occasion?
[MS ARNOLD]: We were spending time with his great-grandparents. And on this particular day, my mum and I were sitting outside, and [X] wanted to go to the water park. So I said, “Okay, let’s go. You need to go to the toilet.” And so he ran off into the toilet and I walked inside with his wetsuit sort of thing – you know, long sleeved. And anyway he came out of the toilet holding himself – hiding himself from my dad. And he looked at my dad, while I was sitting there, and he goes, “You know my dad touches me, [Grandpa].” And I just hung my head, and I just didn’t say a word. I got [X] dressed. He was all excited to go to the water park, and as he ran outside, my dad looked at me and yelled at me. He said, “Deal with that.” And my dad’s from the military so he’s very straight.
MS FIRTH: So what he said to you in September/October ’16 was, “Dad touches me”?
MS ARNOLD: Yes.
The maternal grandmother also gave evidence in relation to the disclosure made by the child on 4 January 2017. From page 174 of the Transcript line 7 I note the following evidence:-
MS FIRTH: When was the last time that [X] raised the sexual abuse allegations with you?
[MS ARNOLD]: He didn’t speak – well, he did. He spoke to [Grandpa] on 4 January ’17.
MS FIRTH: Okay. Were you a party to that conversation?
[MS ARNOLD]: I was not.
FIRTH: Okay. So I want to know when he has spoken you directly?
[MS ARNOLD]: Okay.
….
MS FIRTH: Yes. I want to know when you’ve heard it directly?
[MS ARNOLD]: I had to go to the shop. [X] said, “Can I come?”
MS FIRTH: Right?
[MS ARNOLD]: He got in the car with me, buckled up, and I’m just about to turn the ignition on. [X] said, “My Dad is still touching me, [Grandma].”
MS FIRTH: Right. What did you say?
[MS ARNOLD]: I went, “[X].” I put my head down and I said, “You should have told the police that when they asked you.”
MS FIRTH: What did you – but – so his exact words were, “My dad is still touching me now”?
[MS ARNOLD]: No. “My dad is still touching me, [Grandma].”
MS FIRTH: Yes. So did you ask him what he means by “touching” him?
[MS ARNOLD]: No. No.
The maternal grandfather, Mr Arnold, gave evidence at the trial. At page 207 of the Transcript (25 May 2021) from approximately line 38, the maternal grandfather was asked about any disclosures made to him by the child, X. The grandfather referred to “the 2017 one” (line 30, page 207 of the Transcript). From line 38 on page 207 of the Transcript, the maternal grandfather gave the following evidence as to what occurred when he was talking to the child in 2017. It seemed undisputed that the date was in January 2017. The evidence is as follows:-
[MR ARNOLD]: He was sitting beside me, and I’ve put my arm around him. And I said, “What’s up, mate? You seem a bit down.” And his words to me, “My dad is still touching me.” I said nothing back to [X]. I just more or less ignored it. And when I went out to the kitchen several minutes later, I told [Ms Arnold] what X had just said to me.
Section 93A interview
At the time of the first disclosure made by the child to the maternal grandmother the police conducted an interview with the child pursuant to section 93A of the Evidence Act 1977 (Qld). The section 93A interview was played in the courtroom during the course of this trial. The child was interviewed by two police officers. The child did not make any disclosures to the police.
The police concluded (exhibit 9) that the report was unfounded. The narrative (contained in the last paragraph of page 3 of 4 in exhibit 9) contains the following from the police:-
Unfound the report… The matter has been finalised as: Evidence indicates the offence did not occur – Cleared Date: 22/06/2016. There is sufficient evidence to indicate the offence did not occur because: on 22 June 2016 the victim child attended [City G] Police Station and provided a section 93A statement. The victim child did not have any idea as to why he was at the police station. Two CPIU officers were present whilst obtaining the 93A statement which was started by using open questioning before having to ask direct questions to the victim child. The victim child did state that when he was at his dad's house, he played naughty games on the Xbox. The victim child clarified that naughty games was about killing people. The victim child also made reference to “F” games, however he could not clarify what "F" games was. Closed questions.
Police Officer:…I heard daddy touched you somewhere. Did daddy touch you somewhere?
Victim child: Daddy did not.
Police officer: has anyone touched you on your dilly?
Victim child: [Grandma] and [Grandpa].
Police officer: Has daddy touch you on your dilly?
Victim child: No.
The police document goes on to state:-
… after the 93A statement was completed, investigating officer spoke with the victim child’s grandmother/informant about the outcome of the statement. The informant was able to clarify that when the victim child was talking about "F" games, it is Xbox games with swearing in it. The informant was very disappointed when she was advised that the victim child did not make any disclosures and that Police would not be taking any further action. Police attempted to explain what police require when conducting investigations like this. However, the informant was not pleased when she left the station. Police believe that it is highly doubtful that any offence has occurred as there is no evidence to indicate otherwise.
There is a supplementary report contained on page 4 of 4 of exhibit 9. The police document states:-
On 12 October 2016 an email was forwarded to the [City L] CPIU concerning information from the informant in relation to concerns that she has about the police investigation in this matter. This email and its contents have been added to this file.
The father was asked about the so-called "F" games. He didn't know what it meant but he said in Court X had subsequently told him that he meant "M" games – referring to “M” level video games.
The maternal grandmother did not volunteer to the Court during the course of this trial that she had told the police that the reference to "F" games was an Xbox game with swearing in it. There is no explanation for this failure to clarify by the maternal grandmother.
The police also investigated the disclosure made by the child to the paternal grandfather in January 2017. Again, the police came to the conclusion that there was “sufficient evidence to indicate the offence did not occur”. The police conducted an interview with the child although it was not an interview conducted pursuant to section 93A of the Evidence Act 1977 (Qld). In the interview with the child no evidence was obtained "which would substantiate an offence". On page 3 of 5 in exhibit 9 the police documents indicate, inter alia:-
Police attended… and took up with the victim child and suspect. Father and suspect [Mr Fletcher] was unsurprised to see police, stating that he believed that the informant would make a complaint against him in an attempt to have custody of the victim child returned to her and that he had attended [City G] Station in recent days with a letter from DCCS. [Mr Fletcher] was happy with police speaking to VC [X]. PCSC…spoke with the VC in the kitchen – while PCSC [BB] remained outside with parent [Mr Fletcher]. [X] spoke with police, with R/O using open question of "I heard something happen to you did something happen?" [X] said something did happen, but he couldn't remember right now. Further questioning used: "I heard someone touched you, did someone touch you? To which [X] stated, "Daddy touched me". [X] used a hand motion, grabbing at his penis. Further information was extracted establishing that had occurred in the shower, and that daddy had got in the shower with him. VC was difficult to keep on track and made statements that were clearly unrelated to the track of the conversation. Further attempts to obtain information to establish the context of the touching was unsuccessful. [X] stated that this had also happened a few minutes before police arrived. On a number of occasions, when asked for further details [X] stated that he couldn’t remember right now. Police spoke with suspect in relation to the statements made by the VC. Suspect stated that on occasion he has assisted the VC to clean his penis and foreskin to make sure that the VC was cleaning properly. [MR FLETCHER] stated that he and the VC would occasionally shower together. Suspect denied ever touch VC in an indecent manner. In the context explained by the suspect [MR FLETCHER], the touching disclosed by the VC appears to be as part of normal hygiene and a parent teaching how to ensure that his genitals are clean. Without further disclosure from the child to establish that the touching was in an indecent manner or context, there is no evidence to support that any offence has occurred. [MR FLETCHER] stated that since he became aware of the previous compliant to the police, he has noticed that VC has made a number of statements that his grandparents have encouraged him to say. He believes that his is because the grandparents (informants) have rewarded VC for saying things about touching and VC now associates making these statements with obtaining a reward.
Documents subpoenaed from the Department
Exhibit 7 contains notes from an interview with the child conducted on 20 July 2016 with officers from the Department. The interview was conducted by Mr M and Mr P. The interview took place at the City L Child Services. On page 3 of 8 there are the following notes contained in Exhibit 7:
…
·     CSO [Mr M][ asked who puts the soap on his body. [X] stated that he does;
·     CSO [Mr M] asked who cleans [X’s] bottom. [X] stated that Dad does; and
·     CSO [Mr M] asked who cleans [X’s] penis. [X] sated that Dad does but he doesn’t touch it. [X] stated that his Dad always cleans [X’s] penis and then said “he does that” and indicated on his pants a pulling motion. [X] then stated “I don’t like him anymore. Dad says rude things. Rips my toys. That’s not a good idea.”
Sexual abuse
·CSO [Mr M] asked [X] in which room does Dad touch his penis (after [X] stated that he does). [X] stated “in Daddy’s room”;
·CSO [Mr M] asked X if Dad says anything when he touches his penis. [X] stated “F words”;
·…At night time. At Daddy’s in the room.” [X] then stated that his clothes were on when his Dad touched his penis, and that Dad’s clothes were on too;
·[X] stated that he wouldn’t let anyone touch his penis;
·CSO [Mr M] asked [X] if he felt safe at his Dad’s. [X] stated “yeah”. CSO [Mr M] asked [X] what “safe” meant. [X] stated “Daddy’s not going to hurt you at home”.
I note the submission made by counsel for the ICL in relation to this interview conducted by the Department. I agree with the submission made by Ms Firth. In the third dot point contained in the above quotation, the child clearly says that the father cleans the child’s penis, “but he doesn't touch it”. Then, under the heading “Sexual abuse” the note indicates that Mr M “asked [X] in which room does dad touch his penis (after [X] stated that he does).”
The notes are problematic and, frankly, unhelpful. The child had just stated that the father does not touch the child’s penis. I agree that the next question is a leading question. In terms of the use of the words “touch his penis” – the child after denying that the father does this – is then asked, “in which room does dad touch his penis”.
I also note the evidence of the family report writer Mr N, who has experience with autistic children – noting that they are, essentially, suggestible or easily influenced. In those circumstances, the kind of questioning referred to above (by the Departmental officers) is not helpful.
The same officers from the Department (Mr M and Mr P) interviewed the father on 10 August 2016. The notes from that interview are contained in Exhibit 7 – page 5 of 8 (also known as page 139). Those notes contain, in part, the following points:-
Content of interview with parent/other (Detail facts, observations and assessment)
Concerns
• CSO [Mr M] explained that the concerns involved the following:
[Mr Fletcher] inappropriately touching [X]; and
[Mr Fletcher] masturbating [X's] penis.
• [Mr Fletcher] was observed to appear shocked by these accusations.
Sexual Abuse
• [Mr Fletcher] stated that he shows [X] how to clean properly because [X] still has his foreskin;
• [Mr Fletcher] stated that he doesn't want [X] to have a penile infection;
• [Mr Fletcher] stated that [X] was complaining about his penis, and [Mr Fletcher] observed there to be “white stuff” around it so he took [X] into the bathroom and showed him how to clean it;
• [Mr Fletcher] stated that he has shown [X] how to clean other body parts;
• [Mr Fletcher] stated that he is unaware of what words [X] would use for his penis, but it’s possible he calls it a "doodle" . CSO [Mr M] asked about the word "diddle" to which [Mr Fletcher] responded "ah. He'd have learned that from [Grandpa]"; and
• CSO [Mr M] stated that [X] talked about the inappropriate touching as a "secret". [Mr Fletcher] stated that [X] has said that certain things at [Grandpa’s] house are a secret, and when he asks further [X] states "nothing is a secret".
Behavioural Issues
• [Mr Fletcher] stated that [X] hasn't shown any aggressive behaviours while in his care, but [X] "does get tired";
• [Mr Fletcher] stated that [X] gets tired when they have Family Contact at the park, because "two (2) hours at the park is a long time for anybody" but that [Mr Fletcher] changes the activities in order to meet [X's] energy level. "If he gets tired we just sit down and play something in the shade";
• [Mr Fletcher] stated that when [X] gets tired, he does not get aggressive;
• [Mr Fletcher] stated that [X] listens to him, and that his discipline involved using counting to three (3) but that as soon · as he starts counting, [X] listens. [Mr Fletcher] stated that if he reaches three (3), then he has to follow through and put [X] in time-out, which [X] doesn't like, and that he has observed others not doing this which [X] picks up on and doesn't listen to them;
• [Mr Fletcher] stated that when [X] is in time out he has to sit quietly or the timer gets reset; and
• [Mr Fletcher] stated that he is aware people have been saying that he is letting [X] play violent videogames but that this is not the case. [Mr Fletcher] stated that the only person who plays on the Xbox is [Q], and that he only has games such as Lego and Minecraft. [Mr Fletcher] stated that [Q] and [X] are only allowed to watch 'G Rated' movies when [X] visits.

Ms Firth of counsel questioned the father about the contents of the interview that was conducted with the Departmental officers on 10 August 2016. The father confirmed that the contents of that interview were correct. I accept the father’s evidence that the contents of that interview were correct and I also accept that the father gave truthful answers to the officers from the Department. I also accept that the father gave truthful answers to the police.
The father’s evidence
The father was recalled as a witness and Ms Firth questioned the father specifically about the allegations made by the maternal grandparents. The father gave the following evidence from page 220 of the Transcript (26 May 2021).
“MS FIRTH: I want to ask you some questions about the sexual abuse allegations that you’ve heard?
[MR FLETCHER]: Yes.
…
MS FIRTH: I will take you through them step by step. So the first one from the evidence of [Ms Arnold] yesterday?
[MR FLETCHER]: Yes.
MS FIRTH: --occurred on, she says, 15 June 2016?
[MR FLETCHER]: Yes.
MS FIRTH: She was told by [X], “My dad touches me”?
[MR FLETCHER]: Yes.
MS FIRTH: And it seems as though that allegation is that you touched him on the penis, and there was a masturbating-type motion in terms of that?
[MR FLETCHER]: That was what as alleged, yes.
MS FIRTH: Right. So that’s what the allegation is?
[MR FLETCHER]: Correct.
MS FIRTH: So in terms of that---?
[MR FLETCHER]: Yes.
MS FIRTH:--in or around June 2016 did you touch [X] on the penis?
[MR FLETCHER]: Yes, I did because he came over. He had – obviously, that was a sleepover, and so I had to bath him.
MS FIRTH: Yes, and when is – do you recall – is this around June?
[MR FLETCHER]:   Absolutely --- it was around – around that time, yes.
MS FIRTH: Right. Okay?
[MR FLETCHER]: Yes, and, yes, I had to wash him correctly, so he did the most part by himself well, but he didn’t pull back the skin properly to wash because he is uncircumcised.
MS FIRTH: Right. Okay?
[MR FLETCHER]: Yes.
MS FIRTH: So what did you do to assist him with that?
[MR FLETCHER]: I help him – him pull back his skin and I held the skin back whilst he washed his doodle and proceeded to rinse him off after that and dry him and then get him dressed, yes.
MS FIRTH: Okay. All right?
[MR FLETCHER]:   Yes.
…
HIS HONOUR:   So when you say his skin you mean his foreskin?
[MR FLETCHER]: Foreskin. Correct.
HIS HONOUR: All right. Thank you.
MS FIRTH:   There is a further allegation made around September or October 2016?
[MR FLETCHER]: Yes.
MS FIRTH: ---that – the words were, “You know my dad touches me, [Grandpa]”, and that was said to [X’s] great-grandfather when [Ms Arnold] was there – was the evidence that she gave yesterday?
[MR FLETCHER]: Yes.
MS FIRTH: Do you have any explanation as to why [X] may have been saying that you were touching him around September/October 2016?
[MR FLETCHER]: Well, he had – he had ..... sorry. He had continued to have some more sleepovers.
MS FIRTH: Right?
[MR FLETCHER]: Most of them were stopped when the allegations started and the investigation started.
MS FIRTH: Right?
[MR FLETCHER]: But, yes, he – up until – I can’t remember exactly when it all stopped. I was still helping him bath and all that sort of stuff. Prior to that the – the only contact was with – I believe it was with the social worker supervised.”
I accept this evidence from the father. I accept that the father is telling the Court the truth in relation to what occurred. I accept that the father was appropriately cleaning the child’s penis. I accept that the father was teaching X how to pull back his foreskin and clean his penis properly.
I also note and accept the father’s evidence (referred to earlier in these reasons) concerning use of the words “F games” and “M games”.
As to the comments made by the child to the maternal grandmother in September/October 2016, the father made it clear that he was still helping the child have a bath and was still showing the child how to clean and dry his foreskin and the father stated at page 223 of the Transcript at line 10, at line 10:-
[MR FLETCHER]: …he wasn't doing it correctly, and I know the risks of having foreskin at a younger age and not cleaning properly.
I also note (and accept) the father’s evidence that he was at that time living in a house at W Town and sharing the house with the grandson of the owner. The grandson is the father’s. The father’s housemate is named Mr O. Mr O’s son, Q, who was then aged approximately six or seven, was there during contact visits with his own father. I do note that Mr O worked away on occasions.
The father confirmed that he would give X a bath at night.   I also note the following evidence from the father from page 227 (26 May 2021) of the Transcript were it is stated, inter-alia:-
MS FIRTH:   Thank you. Now, the last allegation is in relation to January 2017?
[MR FLETCHER]: Yes.
MS FIRTH:   And the allegation at that time was, “Dad is still touching me”?
[MR FLETCHER]: Yes.
MS FIRTH: Do you have any explanation as to why in January 2017 [X] was saying that you’re still touching him?
[MR FLETCHER]: I was still assisting him with bathing and drying and stuff like that.
MS FIRTH: When did you stop assisting him with bathing?
[MR FLETCHER] It would have been near the – probably around September that year.
MS FIRTH: Right. Okay?
[MR FLETCHER]: Yes.
MS FIRTH: So September 2017 he was, essentially---?
[MR FLETCHER]:   Cleaning himself
MS FIRTH:--- independent and     ?
[MR FLETCHER]:--- properly, yes.
MS FIRTH: Yes, in---?
[MR FLETCHER]:   Yes.
MS FIRTH: --- terms of that.
HIS HONOUR: Hang on a minute. So what the father actually said was he was “cleaning himself properly” – were the words you used?
[MR FLETCHER]: Correct, yes.
HIS HONOUR: By September 2017?
[MR FLETCHER]: That’s right.
MS FIRTH: What made you form the opinion that he wasn’t cleaning himself properly?
[MR FLETCHER]: I watched him to see how he was bathing himself, so he wasn’t pulling back his skin, and, well, I asked him why he doesn’t do it, and he said he doesn’t need to, so I tried to explain to him that he does, and then, yes, as you saw probably in the statement, I did pull back his skin and showed him that there is white stuff around his penis
MS FIRTH: Right?
[MR FLETCHER]: --- that that needs to be washed every night so absolutely.
Again, I accept this evidence from the father. He gave truthful and convincing evidence in relation to his care of the child and in particular the way that he taught the child how to clean the child’s own genitals.
The father was then asked about the police note from early 2017 when the police visited the father and the child at the father’s residence. There was nothing contained in that evidence that was of concern to the Court. I accept the father’s denials that he acted inappropriately or indecently towards the child. I note that the father was asked a specific question by Ms Firth at page 229 of the Transcript from line 16:-
MS FIRTH: Have you at any time masturbated X’s penis?
[MR FLETCHER]: No.
I accept the father’s evidence.
After being recalled, the father was then cross-examined by the mother. From page 229 of the Transcript, I note the following questions and answers:-
MS HALEY:   Just a couple of questions?
[MR FLETCHER]: Yes.
MS HALEY: You verified just before that – that accusations or allegations come across on 16.6.2016; however, the police record was just mentioned in 2017, so you were continuing to even shower naked with X a year after the accusations had been made?
[MR FLETCHER]: … at that time I was going to make sure my son was clean, yes. I mean--
MS HALEY: Okay?
[MR FLETCHER]: The allegations were that I was doing something inappropriate.
MS HALEY: Yes?
[MR FLETCHER]: I’m not going to, basically, disregard and neglect [X] over allegations in his---
MS HALEY: So there was no concern---
HIS HONOUR:   Okay. No, let him finish giving his answer.
MS HALEY:   Yes.
…
HIS HONOUR:   You said you’re not going to disregard [X] over allegations?
[MR FLETCHER]: That’s correct. So, I mean, his health and safety will always come first, so if I have to clean him properly I will continue to clean him properly regardless of what allegations come through so
…
MS HALEY: Can you verify that in the interview with Child Safety dated 10 August 2016 with CSO [Mr M] and CSO [Mr P] you stated that:
[X] was complaining about his penis, and [Mr Fletcher] observed there was white stuff around it, so he took [X] into the bathroom and showed him how to clean it.
MS SLIVERTHORNE: Is that correct?
[MR FLETCHER]: Yes.
Once again, I accept this evidence from the father.
The mother’s trial affidavit was filed on 10 May 2021. In her affidavit, she states on page 2 that in 2011, “found underage porn on [Mr Fletcher] phone while in Brisbane dealing with court matter.”
Again, on page 2, the mother also stated that in 2012:-
“found underage porn on [Mr Fletcher's] portable PlayStation”
Days later found affairs sites ‘[website]?’ the site was for married people seeking to find affairs.”
Was admitted to hospital at 34 weeks due to hind waters breaking due to stress. was flown to Brisbane immediately.…
The mother’s trial affidavit was filed only two weeks before the final hearing. The father’s affidavit was filed before that time. The allegations relating to “underage porn” were not put to the father. I must say, the mother’s evidence overall was very unimpressive. The mother was an unreliable witness who lacked insight. In the mother's affidavit, filed 10 May 2021 I note that the affidavit is difficult to follow. There are a large number of annexures. On page number 34, the mother, when referring to the year 2010, stated that she had opened the father’s telephone and saw that he had been watching something called “Porn & ‘… Girls Being f*cked’ I immediately became distressed.”
There is a further allegation contained on that page of the mother seeing on the portable PlayStation the image of a cartoon which the mother said, "looked like a small child on all fours with her vagina showing".
The mother made another mention to “porn” on page 52 – but no mention of "underage porn".
In the mother’s own affidavit, she has also annexed some pages from documents that she obtained from the Department of Child Safety. One part of the mother’s affidavit includes an annexure sheet which seems to be from an earlier affidavit of the father’s. In any event, on a page which is recorded at the bottom in handwriting as “p 14 of 18” the mother includes part of an interview between a Department of Child Safety officer and the father from 1 May 2014. The father was asked various questions and the father’s version to the Department was:-
[Ms Haley] saw porn sites on [Mr Fletcher’s] phone whilst she was pregnant. She started throwing things around in the car. Her waters started leaking.
At “p 17 of 18” in the same document, the father stated the following to the Departmental officers:-
[Mr Fletcher] stated that [Ms Haley] was looking through his phone and that [Mr Fletcher] had a number of pop-up sites for pornographic and affair related websites, of which [Ms Haley] saw. [Ms Haley] was attempting to leave [Mr Fletcher] at this time and was putting her bags in the car when her waters broke.
I would add that none of this evidence was drawn to my attention during the course of the trial. There was no cross-examination of the father in relation to these issues. The father volunteered to the Department that he had been looking at pornographic websites on his telephone. But there is no reference in those documents, nor any allegation put to the father, that the websites were in respect of underage children.
Given that the issue was not put to the father, the only evidence is those comments contained in the mother’s affidavit. In my view, this not the sort of evidence in which there would be any exception to the rule in Browne v Dunn (1894) 6 R 67 – as explained in the decision of the Full Court in LC and TC (1998) 23 Fam LR 75. The allegation appears to be a serious one – namely, that the father was a person who had looked at underage pornography. But as the Full Court said in LC and TC – “the exception to the rule should only operate where the issue is a fairly clear and obvious one…” (note page 83 of the decision in LC and TC). In this instance, it cannot be said that “the issue” was either clear or obvious. It was tucked away in the complex series of documents which comprise the mother’s trial affidavit. It was not “clear and obvious” to anyone. No doubt that explains why it was not drawn to my attention during the course of the hearing.
In any event, I have come to the conclusion that the mother is an unreliable witness. The father’s version to the officers of the Department of Child Safety is very likely to be correct. I accept that what the father told the Departmental officers was correct – that he was looking at pornographic websites. There is no reference whatsoever to underage pornography. I hasten to add that the father was not in any way under any suspicion by the Department for looking at underage pornography. I would have thought that, if the mother’s version was true, she would have passed that information onto the Department and the Department would have questioned the father about it. Nothing of that sort has been drawn to my attention in the evidence. In fact, the father was being questioned by the Department in 2014 because there were serious concerns that the mother was threatening to kill the child. I highlight the following notes from certain parts of the Departmental documents. These can be found from “p 15 of 18” in the annexures to the mother’s trial affidavit. The Departmental documents state that the notes are on page 126 of 250 and page 184 of 250. The notes are obviously taken from the interview with the father conducted by Departmental officers on 1 May 2014. The notes contain the following, inter-alia:-
CSO asked [Mr Fletcher] about an incident whereby [Ms Haley] attempted to smother [X] when he was a baby. He stated “she did tell me she put a pillow over his face, but she just sat it on him and didn’t push down, not sure for how long. She regrets it now. [X] was teething at the time. We were staying at her parents, but they weren’t helping.”
…
CSO asked [Mr Fletcher] about the pool incident he stated “[X] had a floaty on. He kept trying to get in and jump in. [Ms Haley] told him to stop. He jumped in and went under and came up, it was her way to get him to stop. [Ms Haley] did go to him, the way it looked to bystanders was that she just left him, but she did go to him.” [Mr Fletcher] tried to go to him also, but he was on the other side of the pool. CSO expressed concerned over the way [Ms Haley] “teaches [X] a lesson”: [Mr Fletcher] stated since the medication change this has settled. The pool incident occurred last year.
CSO asked [Mr Fletcher] about [Ms Haley] taking [X] out of the car to walk up the driveway. He stated “was the pills, she did go back and get him”. That was around the time that she put him in the bin. She broke down afterwards and cuddled him. When she’s unable to cope now, [Ms Haley] goes to see people.
There is no evidence that the mother is continuing to threaten harm to the child X.
I do note that between May and October 2014, the mother and the father agreed to work voluntarily with the Department in relation to X. Between 4 November 2014 and 21 November 2016, the maternal grandparents were the approved kinship carers for X. My impression from listening to the evidence of the maternal grandparents is that they are terribly upset that the child was returned to the father by the Department on 21 November 2016. The grandparents wanted to keep the child in their care.
The Court's conclusion in relation to the allegation of sexual abuse
Ms Firth (counsel for the for the Independent Children’s Lawyer) asked the mother whether the child X had ever made any disclosure to her of an allegation of sexual abuse by the father. The mother confirmed that X had never made such a disclosure to her. Nonetheless, the mother is convinced that X had been sexually abused by the father. I will return to that evidence, later in these reasons.
I note what was stated by the High Court in M v M (1988) 166 CLR 69. From paragraph 76, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ stated inter-alia:-
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds[12]; McKee v. McKee[13]. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke[14].
Viewed in this setting, 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.
(Emphasis added)

I note the reference in M v M to Dixon J's judgment in Briginshaw v Briginshaw (1938) 60 CLR 336. Section 140 of the Evidence Act 1995 (Cth) (“the 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
The gravity of the matters alleged by the maternal grandparents (and, indeed, the mother) is a factor to be taken into account by the Court. When considering the standard of proof required in this case, I am indeed mindful of what Dixon J had to say in Briginshaw and I also note what was stated by the Full Court of the Federal Court in Qantas Airways Ltd v Gama (2008) 167 FCR 537. Branson J stated at paragraph 128 (of the Qantas Airways decision) that section 140(2) of the 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.”
I have had close regard to the words used by the child. I have, indeed, thought deeply about the statements made by the child to the maternal grandparents. I accept the maternal grandparent’s evidence that the child made those statements as they have sworn. The child stated that the father had touched his penis and made a motion – which was interpreted by the maternal grandmother as a masturbating motion. This is all consistent with the father’s evidence that he had to teach the child how to pull back the child’s foreskin and clean it properly. It is true that the father had touched the child’s penis.
The father was interviewed by officers from the Department and the father was also, one stage, questioned by the police. The father explained to the Departmental officers and to the police what had happened. Both the Department and the police were satisfied that the father had not acted inappropriately. The Department placed the child (X) with the father on a full-time basis from late 2016. The child has therefore been living on a full-time basis with the father for approximately four years and seven months.
I had the opportunity to observe the father in the witness box and to listen to his answers during cross-examination. I accept the father’s evidence that he has not in any way inappropriately or indecently touched the child’s penis. I find that the father has not in any way sexually abused the child. I had a chance to observe the father in the witness box for a considerable period of time. I gained a very favourable impression of the father as a witness. The father was responsive; the father showed insight; the father showed a willingness to do whatever is necessary in order to foster the child’s relationships with the maternal grandparents and the mother. Further, the father (I conclude) will do whatever is necessary to obtain the necessary training and education to assist the child with the child’s challenges. The child has now been diagnosed with autism. There was already a diagnosis of ADHD. The father (once alerted by Mr N during evidence) has contacted D Service in order to gain further knowledge in relation to ASD and what this means for X’s future.
This is one of those cases in which the Court “has no hesitation in rejecting the allegation as groundless” (note the words of the High Court in M v M as quoted above).
I have concluded that the father has not in any way sexually abused child. The child is not at risk of sexual abuse in the care of the father. I note what was stated by the High Court further in M v M from page 77:-
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. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. (17)), "an element of risk" or "an appreciable risk" (Marriage of M. (18)), "a real possibility" (B. v. B. (Access) (19)), a "real risk" (Leveque v. Leveque (20)), and an "unacceptable risk": In re G. (A minor) (21). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. 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. In the present case Gun J. was not satisfied that the husband
(Emphasis added)
To use the wording preferred by the High Court – it follows from what I have already stated that X is not at “an unacceptable risk of sexual abuse” in the care of the father.
In reaching this conclusion, I am very mindful of the line of authorities relevant in this area following the High Court's decision in M v M. In the dissenting decision of Fogarty J in the In the Marriage of N and S (1995) 19 Fam LR 837, I note that at page 860, 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?
(Emphasis added)
The comments made by Fogarty J in his dissenting judgment in N and S have been supported by subsequent Full Courts in cases such as Napier v Hepburn (2006) 36 Fam LR 395 (at paragraph 56) and Johnson v Page (2007) FLC 93-344 (at paragraphs 66 and 95) and Fitzwater and Fitzwater (2019) 60 Fam LR 212 (at paragraphs 14 to 16).
I have indeed given “real and substantial consideration to the facts of the case”. The facts, as found, do not give rise to an unacceptable risk of harm to the child. I have already made my conclusion in that regard clear. The questions posed by Fogarty J have already been considered by me here in these reasons for judgment. Very importantly, within the context of this case – there are indeed satisfactory explanations in respect of the allegations made. The father explained the situation (of the necessity of teaching X how to properly clean his foreskin and penis) to the Departmental officers and to the police. The father’s explanations to the Department, to the police, and indeed to the Court, have been clear and consistent. There are satisfactory and innocent explanations in respect of the events that occurred.
It is the case that the child X has been somewhat troubled in relation to his schooling. There has been a significant improvement in that regard since the child has been diagnosed with both ADHD and ASD. These diagnoses have led to extra help being provided to X in the classroom at his school – the J School. To the extent that the maternal grandparents (or the mother) were putting forward a position that the child’s conduct was somehow the fault of the father – I reject that notion. The child’s conduct is more than adequately explained by the diagnoses he has received. This was generally the view of the family report writer also.
In undertaking the “balancing or weighing exercise as to the implications of the child’s statements” (note the decision of the Full Court in Fitzwater v Fitzwater at paragraph 12) – it will be apparent at the conclusion I have reached is that the child did make the statements to the maternal grandparents (as outlined herein) but that the father’s clear and satisfactory explanations – which he provided from a very early point in time – combined with the very favourable impression I formed of the father as a witness, lead the Court to conclude (as I have already stated) that the child is not at unacceptable risk of harm of sexual abuse in the care of the father. Indeed, as I have noted, I have reached the conclusion that the child is not any risk of sexual abuse in the care of the father.
The evidence of the mother
I have already indicated in these reasons for judgment – the mother was an unimpressive witness. The mother was not candid with the Court. In 2016, the mother became engaged to her former husband Mr Haley. The mother married Mr Haley in 2017. In 2019, the mother gave birth to twins, Y and Z. They are the children of Mr Haley. It transpires that Mr Haley had a significant history of mental illness. In Exhibit 1 (the Independent Children’s Lawyer tender bundle) there are contained notes from the R Hospital. I note from page 63 of Exhibit 1 that on 8 November 2017. Mr Haley was taken to the hospital by his wife (the mother in this present case before the Court), “with symptoms of psychosis”. The hospital notes indicate that Mr Haley had been “off regular antipsychotic medications since June…”. The mother did not volunteer any of these risk issues to the Court. The mental health history of Mr Haley was only uncovered by service of a subpoena instigated by the Independent Children's Lawyer.
The question of the mental health of Mr Haley is acutely relevant considering the events that occurred on 30 April 2019. On that date, there was a significant domestic violence incident. The mother’s twins were approximately nine weeks old at the time. The mother maintains that Mr Haley bashed one of the twins and choked the mother during the incident. The even more disturbing evidence from the mother (so far as the Court is concerned) was that following the incident (which occurred at the town of S Town in Queensland) Mr Haley left the premises (the house where the mother and Mr Haley were then living) and was walking up the street. The mother then got into a motor vehicle and put one of the twins into the baby seat and drove up the road trying to reason with Mr Haley. The mother’s explanation to the Court in that regard was to the effect that she did not want to give up on her marriage to Mr Haley. This shows a lack of insight on the part of the mother. She had just been subjected to a violent and dangerous attack by Mr Haley. Since that day (30 April 2019), the mother’s evidence is that Mr Haley has not seen the twins and nor has (I infer) Mr Haley seen the mother.
With that evidence in mind – I found it particularly worrying and concerning that the mother refused to provide to the Court details in respect of her current partner. The mother told the Court that his first name is, “[T]”. It was only during her oral submissions at the end of the trial that the mother told the Court that Mr T’s surname is “[T]”. The mother, it was revealed during the course of the trial, is seven months pregnant to Mr T. The mother told the Court that Mr T is a driver. The mother’s explanation to the Court was that she did not want to pass on the surname (or the date of birth because that was also mentioned by the Court) to the Independent Children's Lawyer because – I infer from the mother’s evidence – that she considered that the Independent Children's Lawyer (and the father) had harassed her and had been responsible for the breakdown of her relationship with Mr Haley. That was the general thrust of the mother’s position as I understand it. That was an incredible position to take having regard to the violent end to the relationship between the mother and Mr Haley. The mother did indicate to the Court that she was willing to tell the Court Mr T's surname. The mother stated this during her own evidence. However, the Court made it clear that there was no use passing information to the Court in a private way. The Court cannot gather evidence. It is a matter for the Independent Children’s Lawyer to gather evidence relevant to the proceedings.
The mother’s lack of insight in relation to the relevance of Mr T's surname; Mr T's date of birth; whether or not Mr T has a criminal history; whether or not Mr T has a history of domestic violence; whether or not Mr T has a history of mental illness – the mother’s inability to understand that these are all relevant factors which could impact upon the best interests of X was of significant concern to the Court.
I also note that in relation to Mr Haley, neither the maternal grandmother nor the maternal grandfather volunteered to the Court the serious nature of Mr Haley’s mental illness. That was not helpful and it shows a lack of insight on the part of the maternal grandparents.
Risk of harm
I agree with and accept the submissions made on behalf of the Independent Children’s Lawyer by Ms Firth of counsel in her oral submissions made to the Court on 26 May 2021. Neither the maternal grandparents nor the mother are willing to accept that there were indeed innocent explanations in relation to the comments made by the child. The father gave those explanations from a very early point in time. Those explanations were accepted by the Department (who placed the child with the father) and those explanations were accepted by the police. The maternal grandparents and the mother remain unconvinced.
The maternal grandparents and the mother hold very strong negative views about the father. That much was clear was from the oral testimony. In this regard I note in particular the evidence of the maternal grandmother at page 167 of the Transcript (25 May 2021) from line 36 where I note the following evidence:
MS FIRTH: Do you think he has done a good job in the past four and a half years of raising X?
[MS ARNOLD]: No.
MS FIRTH: Not at all?
[MS ARNOLD]: No.
MS FIRTH: Do you think there’s anything positive as to his care of X?
[MS ARNOLD]: I see that little boy going backwards. I have watched him deteriorate over the years and, yes, it hasn’t been good.
The maternal grandmother was not even prepared to accept that having a full-time helper of X inside the classroom was a positive step. In this regard I note the Transcript (25 May 2021) page 182, line 33.
The negative views expressed by the maternal grandmother concerning the father – are similar to the negative views held by the maternal grandfather and the mother (so far as the father is concerned).
During oral submissions, the maternal grandparents (in particular the maternal grandmother) maintained that neither she nor her husband express negative views about the father in their household. I am not confident that this is correct. The strongly held negative views towards the father and the nature of the allegations raised by the maternal grandparents against the father are such that I do not think it is likely that the child is shielded or can be shielded from the negative views of the maternal grandparents and the mother. Neither the maternal grandparents nor the mother seemed to be able to concede (in a way that I was willing to accept) that the father has actually done a good job in the last 4 and a half years in respect of the child. The evidence of Mr N makes it clear that this nine-year-old autistic child is impressionable and suggestible and, being on the cusp of puberty, I can foresee that permitting the child to have overnight time with the maternal grandparents is likely to lead to ongoing issues arising. This is as a result of a combination of things including the strongly held negative views held by the grandparents which will make an impression upon this child, whether such views be verbalised or are expressed or obvious in other ways. The longer the period of contact (as explained by Mr N), the more likely it is that the negative views (on any range of issues) will detrimentally impact the child X and not be in his best interests.
These matters were put before Mr N (the family report writer) when he gave evidence. Mr N gave evidence on 26 May 2021. He had provided three family reports in this case, dated May 2018, November 2018 and April 2019. He has not seen the family since April 2019. At that stage he recommended that X live primarily with the maternal grandparents. The Independent Children’s Lawyer forwarded to Mr N, a copy of the affidavits of the parties and also forwarded Exhibit 1 (the tender bundle) to Mr N. As a result of reading the trial material and Exhibit 1 – Mr N came to the conclusion that the child should remain living with the father primarily. Mr N noted that since he had seen this family (April 2019) the child had been diagnosed with autism. This was a very significant piece of evidence so far as Mr N was concerned. Mr N stated from page 248 line 5 of the Transcript (26 May 2021) inter-alia, as follows:-
MS FIRTH: And can you please tell the court, then, what your recommendations are as to the living arrangements for [X]?
[MR N]: On the material that I’ve read, that I’ve been supplied and giving the change in [X’s] situation and his diagnosis, my recommendations would be that he stay with his dad ---given the stability that he now has. He has been in his father’s care now for five years. From what I can recall from the last report to the material that I’ve already read, dad has maintained stable accommodation. He has maintained the contact, which I’ve commended him for in the 2019 report. The added diagnosis of autism .... 2020, which is understandable, has made a significant change in this matter, as [X] had only be diagnosed with ADHD prior to that. So, on those – on those changes, along with some other things that I’ve read in the material, I recommend that he stay with his dad. He needs that structure and stability, as all autistic children do. I note his absences from school from being suspended, but that is understandable, given the autistic nature of his diagnosis. I note ..... things I have noted in here is that mum now is separated from her partner, from – and, from the ..... material, quite a violent domestic violence relationship, that I could ascertain out of that. She now has twins – well, she had twins back then, but she’s living by herself with twins.

I note that Mr N has significant experience in dealing with autism and autistic children. I particularly note his emphasis on the importance of stability for the child X. The child has been in the father’s care for something approaching five years. I accept this evidence from Mr N.
Mr N was also asked about the sexual abuse allegations. He was aware of the allegations from 2016 and 2017 when he prepared his previous family reports. I note the following evidence in this regard from page 249 of the Transcript onwards:-
MS FIRTH: …Now, one of the other things I want to raise with you that has come up throughout the trial is allegations in terms of sexual abuse. Those allegations were made by – well, disclosures were made by the child, on the evidence of the maternal grandparents in 2016 and 2017. Were you aware of those allegations when you prepared your reports?
[MR N]: Yes ..... – sorry – yes, I was. But I---I’m at a loss on that one.
MS FIRTH:… So it seems as though they are continuing concerns, from the way that the trial has progressed.
HIS HONOUR:   Although make clear to the witness that there’s no further allegations or disclosure.
MS FIRTH:   Certainly, yes.
So that is the extent of the allegations. There have been no further disclosures by the child since 2017, but can I say, in terms of this, the evidence before the court and the evidence given by the mother, the maternal grandfather and the maternal grandmother is that they still believe the child is at risk of sexual abuse in the father’s household and they all believe that the child has been sexually abused by the father. The maternal grandmother was asked by me, specifically, whether there could be an innocent explanation for what [X] had told her and she gave evidence that there was not an innocent explanation for that. When I asked the maternal grandmother whether it could be something such as drying the child, she did not accept that that could be an explanation for it. The father has given evidence and been recalled to put the specific allegations from 2016 and 2017 to him for him to respond to those. His evidence during this trial accords with the information that he gave to child safety and to Queensland Police, being that the child, in 2016 and up until around September 2017, was assisted by the father in showering and bathing and, specifically, the father would assist him in cleaning – would assist the child, [X], in cleaning his penis, because he had identified that the child was not pulling back the foreskin to clean his penis properly. The child had indicated to him that it hurt, I believe he said, or something of that nature, so he had a look at it and there was some white--
HIS HONOUR:   Substance.
MS FIRTH: ---substance on his penis. So he explained and showed the child – between June 2016 and around September 2017, he would assist the child in cleaning his penis. That was the evidence of the father during the trial?
[MR N]: Okay. Yes.
So, now that I’ve given you all of that information, can I ask these questions. If the court finds that the father has sexually abused the child, what time do you say is in the best interests of the child, or I will put it this way. What do you say the living arrangements should be for X?
[MR N]: If the court finds that the child has been indecently dealt with, to not put a child at risk you would have to have supervised contact with that child. I will say that.
MS FIRTH: Right. So supervised time with the father. And, in terms of where [X] would then live, what would be your recommendation then?
[MR N]: In that terms, he ..... would live with the maternal grandmother.
MS FIRTH: If the court finds that there is insufficient evidence to support a finding the child has been sexually abused, with a background of the mother, the maternal grandmother and maternal grandfather’s views that I’ve expressed to you, what do you say should be the living arrangements for [X], or what’s your opinion as to that?
[MR N]: If the court finds that there – there wasn’t, and can I just say I find this hard because – and excuse me, your Honour. I will just explain it – is that we have a young boy here who, at that time, wasn’t diagnosed with autism. Now he has been – he has been diagnosed now; he was autistic then. His explaining of something would be different to a child that hasn’t been diagnosed with autism, so I feel for the grandparents in this matter, but is a need to take that into consideration. If the court finds that he wasn’t…if he wasn’t – if he wasn’t sexually assaulted…and he would live with his – my recommendation to the court ..... would live with his dad.   But then comes the hard bit – my perspective as a social scientist, is the contact with – with the grandparents, because he is an autistic child who was highly ..... the influence of the grandparents. He has a really good attachment to his mum. He has some really good attachment to his grandma and granddad. There’s no ..... about that. And ..... the grandparents, if the court finds that he hasn’t been, until the grandparents can come to terms with his behaviour being an autistic child, we would have to reduce that contact. I’m sorry – that’s how – that would be my recommendation to the court.
HIS HONOUR: And – it’s Justice Howard again – until the grandparents can come to terms with his behaviour as an autistic child, do you recommend completion of the courses with D Service?
[MR N]: Yes, I do, your Honour. That is the way we – that’s how we learn. We learn by education, and in Queensland’s case they’re very fortunate to have something like [D Service]. And there are various courses which ..... recommend to the court – to grandma and granddad that will actually explain behaviour with an autistic male, especially early child ..... adolescent period. And that would really help grandma and granddad – and, to extent, mum and dad as well .....
…
MS FIRTH:   Thank you. Now, you’ve spoken about behaviours of autistic children. Can you explain what you mean by that? Are there different behaviours that, from your experience, autistic children display that you say that these parties need to be aware of and understand in the current dynamic?
[MR N]:   Yes. Well, yes, there is. And that’s part of the learning process. Autism – autism is one of those neurodevelopmental disorders, so children experience things in different ways. And the thing with an autistic child is they aren’t quite black and white in what they do. They really don’t see outside the spectrum. They ..... structured. They don’t interpret things the same that a child would be of their same age that doesn’t have autism.
…
HIS HONOUR: So just hold on a moment, if you would. You say it can impact how he understands having a shower, being dried off and assisted by dad – this – an autistic child can understand this and explain it differently; is that what you’re getting at?
[MR N]: That’s correct, your Honour. His explanation of what happened would – could be completely ..... by the way, to a child of his same age.
I accept this evidence from Mr N.
I also accept Mr N's evidence that, in the event that the Court finds that the child has not been sexually abused (and that is indeed the finding of this Court) then Mr N was strongly of the view that there ought to be no “sexual abuse counselling” as sought by the maternal grandmother.
Mr N was also asked about the negative views expressed to the child in the household of the maternal grandparents:-
MS FIRTH: The other thing that I wanted to ask you about was negative views expressed to the child, or the child being in a household with negative views. If [X] was placed primarily in a household where those within the household express or hold nothing but negative views of the other parent – so, for instance, if the child was living with the maternal grandparents, who held nothing but negative views as to the father, what would be the impact on [X] of that?
[MR N]: It’s hard to predict the future. But from – well, from my experience, the impact is the relationship with that parent – is how that child views that relationship, because it’s how the child views that parent from the influence of that household. Now, that is more common than not. So what, basically, we’re saying is, if – if the child is in a household that has negative views that influence that child ....., then that child’s relationship with that person that has been negatively talked about will be affected deeply, and to the extent sometimes where it’s irreversible until the child is old enough to understand. With an autistic child, okay, you’ve got the added disadvantage because that child takes longer to understand. Does that make sense to the court?
MS FIRTH: When you say longer to understand, do you mean longer to repair the relationship; is that what you mean by longer     ?
[MR N]: Yes…it does. If you have a child that’s not autistic and this is happening, when they get to around 15, 16, 17, their middle – middle to later in adolescence, they understand what parents are doing. They – they get this understanding, they know the rights and wrongs, they learn about parents’ behaviour, all this kind of stuff, and they can sometimes pull it – a lot of times, pull it apart and say, well, this doesn’t make sense to what I’ve learned. An autistic child will take a lot, lot longer to do that, so that repairing will take a lot, lot longer to happen. Does that make more sense?
…
MS FIRTH: If the court was to find that there were strongly-held negative views of the father in the maternal grandparents’ household, can you give an opinion as to what the impact may be for [X] and what     ?
[MR N]: The impact may be…for his relationship with his father?
HIS HONOUR:   And what’s the recommendation on time?
MS FIRTH:   Sorry – and then the second part his Honour said is what would be your recommendation as to time, if those findings were made?
[MR N]: Okay. The first bit I’ve already answered is that it would affect the relationship of [X] with his father, but there’s no doubt about that. To what extent is something we can’t always put a fine point to. The higher the influence, unfortunately, my recommendation is the less time, until the person who is using influence actually learns about their own behaviour. So, in this case, we would reduce the time that that person was doing. So if this is the grandparents, then the only way we could do this is reduce the time until the parent – grandparent has a chance to understand their own behaviour and come to terms with what’s happening. If the grandparents don’t come to terms with it, they may find that, in [X’s] best interests, that that time is supervised, unfortunately, until they can come to terms with it. Does that answer the question?
The opinion of the family report writer is that “with negative views, it’s daytime contact.” I note page 256, line 32 of the Transcript.
Having regard to the documents and Exhibit 1 concerning Mr Haley and having regard to the affidavit material – the further recommendation from Mr N, is that the mother’s time needed to occur when the child is with the grandparents or alternately the mother's time needed to occur at a supervised contact centre. Mr N expanded on his opinion that the mother lacks insight on page 257 of the Transcript as follows:-
MS FIRTH: And does your concern as to lack of insight come from your reading of the notes as to [Mr Haley]?
[MR N]: My concern – two – two – couple of things. The reading of the notes, the QPS notes and ..... come with it, the degree of the previous violence, the understanding of it, the fact that – and don’t get me wrong – the fact that [Ms Haley] is pregnant and we don’t know who dad is so we don’t know any detail there, that’s a concern because we don’t know who’s going to be around [X]. …And, look, we have – she has twins and, god bless them, they’re – they’re two years of age and there’s a lot of work there for ..... person, and you then put another – an autistic child in on top of that, that’s a lot of work.
Mr N also stressed the importance of the parents and the maternal grandparents undertaking courses with D Service because as an autistic male going through puberty, there are particular challenges and these were highlighted by Mr N in his evidence. I accept the evidence and the opinion along with the recommendations of Mr N. Not only is the Court of the view that there is insufficient evidence to conclude that sexual abuse has occurred – the Court is prepared, in the circumstances of this case, to make a positive finding that sexual abuse did not occur. I have provided my reasons in that regard. In particular, I note the clear, satisfactory and innocent explanations provided by the father at an early stage. I also particularly note the fact that I found the father to be a very impressive witness.
It is worth noting at this stage that the views expressed by the maternal grandparents were along the lines of – the father did not need to teach the child how to clean himself properly (which, I infer, referred to the child, cleaning his own penis by pulling back his foreskin) because, so the grandparents said – they had already taught the child how to clean himself properly. However the grandparents do not seem to have considered that the young child might have needed to be reminded (for instance, by the father) to clean himself properly in that regard. The father was certainly of the view that the child needed to be reminded. I accept the father’s evidence that he continued to remind the child and to show the child how to pull back his foreskin and clean himself properly right up until September 2017. It was only after that date that the child remembered to clean himself properly in the manner described. I accept all of the father’s evidence in this regard. Furthermore, it seems to me that it could be noted that the maternal grandparents saw no issue with the fact that they taught the child how to clean his foreskin and his penis properly. There was, indeed, no issue in that regard. But the grandparents were unwilling and remain unwilling to accept that the father’s explanation as to what occurred is entirely plausible, appropriate, satisfactory and innocent.
To add to the unsatisfactory nature of the position taken by the maternal grandparents – I note that despite their strongly held belief that the father had sexually abused the child – they nonetheless seek an order from the Court that the child spend every second weekend with the father. They seek an order for the father’s time to be unsupervised.
The mother’s submission that the child spend time with the father at times agreed between the mother and the father again, showed the complete lack of insight on the part of the mother. The mother explained to the Court that she takes her medication and that her mental illness is under control. I certainly hope that is the case. I am far from certain that it is the case. The mother displayed a lack of insight on any range of issues – including her unwillingness to provide the Court the full name of her new partner (in a timely and appropriate manner) along with her inability to realise the relevance of giving the Independent Children’s Lawyer an opportunity to conduct background checks on her new partner. I consider that the mother attempted to mislead the Court in relation to her knowledge of Mr Haley’s mental illness. The mother downplayed the extent of Mr Haley’s mental illness and the mother sought to downplay the relevance of the family violence perpetrated against her by Mr Haley. The Independent Children’s Lawyer has sought an order that the mother’s time with the child occur “in the presence” of the maternal grandparents. This is reasonable. The alternative must be that the time be supervised at a contact centre.
I also accept the submission made by counsel for the Independent Children’s Lawyer concerning risk issues relating to the mother. This relates primarily to the fact that the child may be exposed to family violence. The mother was unwilling to candidly provide to the Court and to the Independent Children's Lawyer (in a timely manner) details in respect of her current partner. It was not until the mother was in the witness box that the mother even revealed that she was seven months pregnant, expecting the child of her new partner whose name was stated by the mother to the Court at that stage as “Mr T”. The risk issues identified (through the subpoena process) and explored in cross examination of the mother relating to Mr Haley were very significant issues relating to the exposure of children to family violence or the risk of family violence. It is the mother’s inability to understand the relevance and the importance of those risk issues, which is another reason that leads the Court to conclude that the mother’s time with the child needs to be in the presence of another adult – namely, one of her parents.
Whilst it is the case that Mr N took the view that the grandparents time needed to be reduced to daytime contact until the negativity towards the father was eliminated – given that this is a final hearing and there needs to be a final order, the only order that can be made in the best interests of the child is an order for daytime contact with the maternal grandparents along the lines sought by the Independent Children’s Lawyer.
Other aspects of section 60CC(2) and (3)
A significant part of the trial dealt with risk issues as outlined above. The risk issues fall squarely within the primary consideration stated in section 60CC(2)(b) of the Act. That is, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” I have made findings in relation to the allegations made and they have been set out above in these reasons.
As to the additional considerations listed in section 60CC(3) – the child is still quite young and immature. He has been the subject of certain diagnoses including ADHD and ASD. To the extent that he was ever asked for his views (in years gone by) such family report occurred some time ago. This particular aspect of section 60CC(3) does not loom large in this case. I apprehend that he is relatively immature for his age. In the context of this case – the child’s views could not be given much weight in any event.
There is no doubt that X has a close and loving relationship with his father, as well as with his maternal grandparents and the mother. I note section 60CC (2)(a) and section 60CC(3)(b).
The orders proposed by the Independent Children's Lawyer are appropriate. They are in the best interests of the child. They will enable the child to continue to foster his relationships with his father, the mother and the maternal grandparents. The conclusion I have reached is that the father has in the past and will continue to foster the child’s relationship with the mother and the maternal grandparents. The father does not denigrate the mother and nor does he denigrate the maternal grandparents. The father was very disappointed and remains very disappointed that the maternal grandparents and the mother continue to seek a finding that the father sexually abused the child. Whilst the father may be very disappointed – he does not let his disappointment impact upon the child’s relationships with the maternal grandparents and the mother.
I agree with the submissions made by Ms Firth, counsel on behalf of the Independent Children's Lawyer. If the child was living primarily within the maternal grandparents or the mother, I do consider that the strongly held negative views of the maternal grandparents and the mother towards the father would likely have a detrimental impact upon the child. This is particularly so noting the evidence of Mr N in relation to an autistic child being placed primarily in a household where negative views are held on are expressed about the father. The father has continued to take the opportunity to participate in making decisions about major long-term issues for the child and to spend time and communicate with the child. The mother is keen to spend time and communicate with the child. I do have to note here that I have very grave doubts about the mother's ability to participate meaningfully in making long-term decisions in the best interests of the child. The mother’s choices in relation to certain aspects of her relationship with Mr Haley (referred to above) and the mother's unwillingness to be candid with the Court in relation to her new partner (who is also the father of her unborn child) lead the Court to conclude that the mother has a limited capacity to appreciate and understand what exactly is in the best interests of the child. (I note section 60CC(3)(c) and 60CC(ca).

I note and accept the evidence of Mr N that stability for X is very important. This is especially the case having regard to the diagnosis of autism. Changing his circumstances – for instance by changing his primary residence – is therefore not in the best interests of the child within the context of this case. I note that Mr N has significant experience in dealing with autistic children. His expertise was not in any way challenged. Within the context of the proposed orders the child will continue to spend time with the mother and the maternal grandparents and there will be little or no practical difficulties and expenses in organising such time (Section 60CC (3)(d) and (e).
It will be apparent that I have come to the conclusion that the father has the much greater capacity to provide for the needs of the child, including his emotional and intellectual needs. The father has acted appropriately in relation to the child’s education. The father has a good relationship with the J School and X’s teachers. The father was well aware that the child is receiving the extra care and attention and tutoring that he needs as a result of the diagnosis of ASD. This is all provided within the framework of the Queensland State School system.
It will be apparent from these reasons for judgment that I do not consider that the mother has the capacity to provide for the needs of X in an emotional or an intellectual sense. The maternal grandparents probably do have that capacity however, there is a major stumbling block in their outlook – in particular, the strongly negative view they hold in respect of the father (note section 60CC(3)(f)).
I have already noted the particular diagnoses in respect child X and I have taken those into account in these reasons for judgment. (Section 60CC(3)(g)).
So far as I am aware – section 60CC(3)(h) is not relevant and no evidence in that regard was brought to my attention.
It will be apparent from these reasons that I have come to the conclusion that the father has a sensible attitude in relation to the child and to the responsibilities of parenthood. He has demonstrated this good attitude and his sense of responsibility over the course of the last 4 and a half years. The child has been primarily in the father’s care during that time. A further diagnosis in respect of the child has been obtained. The father remains in contact with the child’s doctors and is well aware of the medical appointments in respect of the child – including specialist appointments. The father has provided stability for the child. The father has had stable accommodation during that period. The father has fostered the child’s relationship with the maternal grandparents and the mother. The father has encouraged those relationships. Despite the fact that the mother has some significant social challenges (as referred to and outlined in these reasons) the father does not speak ill of her in any way. Even as long ago as 2014 when certain people were alleging that the mother had attempted to kill the child (X) – the father was sensitive in relation to his responses to Departmental officers. The father understood that the mother was suffering from mental illness and even then he was not denigrating the mother. I especially note the interview from 1 May 2014 in this regard. It is that attitude displayed by the father as long ago as 2014 that has impressed the Court. He is sensitive to other people's frailties and challenges (section 60CC(3)(i)).
I have made reference to various family violence issues. They particularly relate to the mother’s relationship with Mr Haley (section 60CC(3)(j) and (k)).
Given the opinion of Mr N (which I accept) and noting the findings made – the strongly negative view held by the maternal grandparents and the mother towards the father leads the Court to the conclusion that the recommendation of Mr N is appropriate. That is, there should only be daytime contact between the child and the mother and the maternal grandparents. Mr N did say that this situation could change in the future – but it would depend upon a change in attitude by the mother and the maternal grandparents. This Court has no way of monitoring the situation on an ongoing basis. This is a final hearing. The matter has been before the Courts for some considerable period of time. The matter needs to be finalised. It is in the best interests of the child that a final order be made. In those circumstances, daytime contact with the mother and the maternal grandparents is the appropriate order. I do consider that such an order will be the least likely to lead to the institution of further proceedings in relation to the child (section 60CC(3)(l)).
There was one rather confusing aspect to the matter. Neither the mother nor the maternal grandparents seemed to be aware that the previous parenting order (made 9 December 2019) made it clear that the child's time with the mother was to progress. The failure by the mother and the maternal grandparents to appreciate and comprehend the form of those orders is concerning to the Court. It reiterates in my own mind the correctness of the decision that I have made that the child should live primarily with the father. The impression I gained from the evidence was that it could not be said that the father in any way impeded the progression of the 9 December 2019 orders.
Parental responsibility
For the reasons outlined above, there is no doubt that the submission made by the Independent Children’s Lawyer concerning parental responsibility is correct. The only possible outcome is an order for sole parental responsibility to the father. The father is (I am satisfied) completely on top of the issues relating to the child’s medical diagnoses and in relation to the child’s education. The father struck me as a sensible and balanced person who is well-equipped to exercise sole parental responsibility. Given that the parents barely communicate – the orders sought by the mother again, confirm in my mind, the correctness of the decision that I have made. The mother had sought a final parenting order whereby the child spent time with the father as agreed between the parents. The parents have shown very little capacity to reach agreement. The impression that I have gained and the conclusion that I have reached is that it is the mother’s lack of insight and capacity which is the major stumbling block to parental cooperation and, indeed, to co-parenting generally. The mother informed the Court that she does have the assistance of a support person. That is good news for the mother. The mother is very busy raising the twins and is soon to give birth to another child. It is to be hoped that her new partner (Mr T) is able to provide good support to the mother in this regard. However, in respect of the best interests of X – the orders proposed by the Independent Children’s Lawyer are appropriate for the reasons stated. It will be apparent that I've come to the conclusion that the presumption in section 61DA (concerning parental responsibility) has been rebutted by the evidence that I have outlined. Such evidence leads the Court to conclude that it would not be in the best interests of X for the parents (or the maternal grandparents) to share parental responsibility in respect of the child. The order has to be for sole parental responsibility for the reasons outlined.
It is therefore not appropriate and not necessary for the Court to consider section 65DAA. For completeness, however, the view that I have formed is that even though the parents live quite close together and from the point of view of the geography in the Region U area – an equal time order or a substantial and significant time order would be manageable. Because of the issues outlined in these reasons, it is clearly not in the best interests of the child. The strongly held negative views by the mother and the maternal grandparents militates against any sort of order for equal time or substantial and significant time. Neither the mother nor the maternal grandparents have the current or future capacity to communicate to the extent necessary in relation to the kinds of orders contemplated by section 65DAA(1) and (2).
Conclusion
It will be apparent from these reasons for judgment that the Court has concluded that the orders proposed by the Independent Children's Lawyer are in the best interests of the child, X.

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.
Associate:
Dated: 18 June 2021

File number(s):	BRC8086 of 2017
Judgment of:	HOWARD J
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW – PARENTING – competing ‘live with’ applications in respect of a nine year old boy – where the child has lived with the father for the past four years and seven months – where the mother and the maternal grandparents each seek that the child live with them – risk issues – capacity of the mother to parent – ability of mother and maternal family to facilitate a relationship with the father – intractable conflict between the parties – allegations of sexual abuse in the father’s care – where the allegations are unfounded – consideration of unacceptable risk.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) s 140 Evidence Act 1977 (Qld) s 93A
Cases cited:	Baghti & Baghti & Ors [2015] FamCAFC 71 Banks v Banks (2015) FLC 93-637 Beckham v Desprez (2015) 55 Fam LR 310 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1894) 6 R 67 Cox v Pedrana (2013) 48 Fam LR 651 Eagle & Scarlett (No.2) [2020] FamCAFC 291 Fitzwater and 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) 19 Fam LR 837 Johnson v Page (2007) FLC 93-344 LC and TC (1998) 23 Fam LR 75 M v M (1988) 166 CLR 69 Napier v Hepburn (2006) 36 Fam LR 395. Qantas Airways Ltd v Gama (2008) 167 FCR 537. Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Number of paragraphs:	129
Date of last submission/s:	26 May 2021
Date of hearing:	24, 25 and 26 May 2021
Place heard:	Hervey Bay
Place delivered:	Brisbane
Counsel for the Applicant:	Ms Chekirova
The Respondent attended as a self-represented litigant
The First Intervenor attended as a self-represented litigant
The Second Intervenor attended as a self-represented litigant
Counsel for the Independent Children's Lawyer:	Ms Firth
Solicitor for the Independent Children's Lawyer:	ELR Law

BRC8086 of 2017
BETWEEN:	MR FLETCHER Applicant
AND:	MS HALEY Respondent
AND:	MS ARNOLD First Intervenor MR ARNOLD Second Intervenor

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	18 JUNE 2021