Frome and Frome (No. 2) - [2010] FamCA 1104

FAMILY COURT OF AUSTRALIA

FROME & FROME (NO. 2)

[2010] FamCA 1104

FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of child by father – Finding no sexual abuse – Allegation of unacceptable risk of sexual abuse – Finding no unacceptable risk – Child’s relationship with father fractured – Order made for family therapy to restore child’s relationship with father – Mother seeking to relocate children from southern Queensland to coastal Queensland – Interim order made that children live with mother in southern Queensland provided that mother chooses to live in southern Queensland on the interim basis pending family therapy and further listing – Children to live with father in southern Queensland pending further listing if mother relocates to coastal Queensland before further listing – Final parenting orders anticipated to be made within twelve months as to whether the children live with mother in coastal Queensland or father in southern Queensland

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA, 65DAA

AMS v AIF (1999) 199 CLR 160
B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
Lindsay & Baker (2007) FLC 93-347
Mazorski & Albright [2007] 37 FamLR 518
M and M (1988) 166 CLR 69
MRR and GR (2010) 240 CLR 461; [2010] HCA 4
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Reifek v McElroy (1965) 112 CLR 517
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) FLC 93-345
WK v SR (1997) FLC 92-787 at 84,694

APPLICANT:

Mr Frome

RESPONDENT:

Ms Frome

FILE NUMBER:

BRC

8078

2009

DATE DELIVERED:

6 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

16, 17, 18 and 19 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Best Wilson Family Law

COUNSEL FOR THE RESPONDENT:

Mr Green

SOLICITOR FOR THE RESPONDENT:

Anthony Black Family Law Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wiid
Lyrene Wiid Lawyer

Orders

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for H born … February 2001 and S born … January 2002 (the children) in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
In relation to such consultations:
a.the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it
b.the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it
c.if after such consultation on an issue a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
Despite orders 1-3, if the father proposes to the mother that the children attend upon a dentist at T for dental check and treatment and that he be responsible for payment the mother must ensure the children attend all dental appointments made by the father.
The parties each be responsible for the children’s day to day care while the children are with each of them.

Parties’ communication

Except in the case of any emergency, all written communications between the parties concerning the children, including in relation to parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or text message service number and give written notice of any change of such within 24 hours of any change.

Attendance on Mr O, psychologist

The father, the mother and the children attend on Mr O, psychologist, at T, at dates and times to be arranged by the independent children’s lawyer, for family therapy counselling for the period of 12 months from the date of S’s first attendance with a view to:
a.restoring S’s relationship with the father
b.encouraging in S and the mother the belief that the father has not sexually abused S and
c.encouraging in S confidence in feeling safe with the father as a person who will not harm her
such counselling to be confidential and non-reportable except as to the matters in order 25 below.
The father and the mother share equally the cost of all attendances on Mr O.

Reasons for judgment

The independent children’s lawyer provide a copy of these orders and reasons for judgment to:
a.the Director-General, Department of Community Services
b.Mr O.
The mother provide a copy of these orders and reasons for judgment to her private therapist Ms Y.
The father provide a copy of these orders and reasons for judgment to his private therapist Ms TR.

Family report and transcript oral evidence Ms L

The independent children’s lawyer provide a copy of the family report of Ms L, social worker, and the transcript of her evidence 19 August 2010 to Mr O.

Restraints

The parties must not cause or allow either of the children to attend on or come into contact with:
a.Dr H
b.Ms GA
c.Pastor N
d.the organisation known as V Organisation.
The parties must ensure that the children be called, known as and enrolled at school and all other places and bodies by the surname Frome and not any other surname.
The parties must not attend the children’s school other than for usual school events which parents attend such as parent teacher interviews, concerts, sports days and the like unless invited in writing by the school principal for some other specific purpose or notification by the school of some emergency and must ensure that the children’s grandparents similarly not attend at the children’s school other than on such occasions.

Information

The parties must notify each other of his and her residential address, landline and mobile telephone numbers and give written notice of any change within 24 hours of any change.
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense information or reports concerning the children provided that this order is sufficient authorisation to do so.
The parties must authorise the children’s school to provide to the other at his/her request and expense information, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.

AND IT IS ORDERED UNTIL FURTHER ORDER

The mother must not relocate the children from T, southern Queensland.
Provided that the mother chooses to live at T:
a.the children live with the mother at T
b.the children remain at the T State Primary School
c.H spend time with the father:
i.on alternate weekends from Saturday 1.00pm until Sunday 4.00pm including throughout the school holiday periods
ii.such further time as Mr O may recommend and/or the parties may agree.
d.changeover occur at McDonalds at T with the delivering party to deliver H to the playground door and the collecting party to collect H from the non-playground door such that the parties ensure they not come into contact with one another
e.S spend time with the father as may be recommended by Mr O, and if such be at the Contact Centre the mother and the father arrange intake as soon as possible, with H to attend if advised by Mr O, and if such be at the father’s home it coincide with all or part of the time H is to spend with the father pursuant to subparagraph c, with changeover in accordance with subparagraph d
f.on Christmas Day 2010 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 9am and 2pm
g.on each of the children’s birthdays on … January 2011 and … February 2011 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 4pm and 7pm
h.on Easter Sunday 2011 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 9am and 2pm.
If the mother should relocate from T:
a.the children live with the father at T;
b.the matter be relisted in relation to the children spending time with the mother.

AND IT IS FURTHER ORDERED

Independent children’s lawyer

The independent children’s lawyer not be discharged for 18 months.
The independent children’s lawyer no later than Friday 1 July 2011, but earlier if considered appropriate, seek a brief report from Mr O as to:
a.the dates and times of scheduled appointments
b.whether the father, the mother and the children have attended all scheduled appointments
c.whether the father and the mother meaningfully have participated in scheduled appointments
d.H’s and S’s response to therapy
e.Mr O’s recommendations to the Court as to H’s and S’s best interests in relation to their living arrangements, schooling and other matters as he may consider appropriate.

Liberty to apply on short notice

The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email:
a.if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification or if any machinery or s65L orders are sought to be made
b.if any urgent or other listing is sought, including for final orders.

Further listing

Otherwise the matter be listed at 10.00am on Monday 1 August 2011 before the Honourable Justice O’Reilly for further evidence and argument as to final parenting orders in particular whether the children should live with the mother at B on the Queensland coast or the father at T in southern Queensland.
For the purpose of that listing, no later than 4.00pm on Friday 15 July 2011:
a.the independent children’s lawyer file and serve an affidavit of Mr O annexing his report
b.the father and the mother file and serve one affidavit each confined to any relevant incidents or matters occurring after August 2010
c.the independent children’s lawyer arrange for Ms L, the family report writer engaged in the matter, to read such material and be available at Court for the further listing of the matter to give oral evidence as to her recommendations in the matter.

IT IS NOTED that publication of this judgment under the pseudonym Frome & Frome is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8078 of 2009

MR FROME

Applicant

And

MS FROME

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern H born in February 2001 now 9 years and S born in January 2002 now 8 years (the children) whose parents are Mr Frome (the father) and Ms Frome (the mother).
They were commenced by the father on 10 September 2009 and entered on the Magellan List on 7 December 2009.
The parties’ proposals concerning the children have changed several times during the proceedings. Ultimately, the father seeks a final order that the children live with him at T in southern Queensland and the mother seeks a final order that the children live with her at B on the southern Queensland coast.
At the conclusion of the trial the mother maintained her proposal, whereas the father submitted that interim orders only be made at this stage, encompassing that on the interim basis the children live with the mother at T, provided that she chooses in the interim to live there with the children; the mother, the father and the children undergo family therapy with Mr O, psychologist, at T for the period of 12 months; H spend time with the father on alternate weekends from 1pm Saturday overnight until 4pm Sunday including throughout the school holidays and such other times as may be recommended by Mr O and/or which the parties may agree; and that S spend such time with the father as may be recommended by Mr O such that the matter then be the subject of a report by Mr O in 12 months time with a view to final orders then being made.
The independent children’s lawyer supported the father’s proposal in many respects, however, in draft proposed orders provided after the conclusion of the trial favoured on the interim basis that H spend time with the father from 9am Saturday until 5pm Sunday on alternate weekends increasing to after school Thursday until before school Monday if recommended by Mr O, and half of the school holiday periods if recommended by Mr O, as well as telephone communication and other orders.
All of the proposals included several ancillary orders to which presently I need not refer in detail save for a proposal by the independent children’s lawyer that the mother be restrained from allowing the children to have any overnight time with the maternal grandparents for the period at least of the first 6 months of the 12 months family therapy with Mr O.

Background matters including in relation to the children since the parties’ separation

The father is 29 years and the mother 30 years.
They met through the Church at T in late August 1998, when the father was 17 years and the mother 18 years, and commenced a relationship soon after. They were married at T in the Church in1999.
The children were born in February 2001 (H) and January 2002 (S).
The parties separated on about 14 October 2008.
To their credit, the parties agreed a parenting plan dated 29 April 2009, by which the children would live with the mother and spend time with the father from after school Thursday until before school Monday in one week and from after school Thursday until before school Friday in the alternate week and half of the school holidays.
Although there were difficulties, matters progressed reasonably well until 15 August 2009 when S commenced to make disclosures concerning the father following a visit to the Brisbane Exhibition on 9 August 2009 at which S had come into contact with a display by Queensland Police Service which had included material by an organisation known as V Organisation. I will deal in more detail below with the circumstances surrounding S’s initial disclosures and disclosures which followed it.
The mother ceased the children’s time with the father such that between 15 August 2009 and 13 November 2009 neither child spent time with the father. Between 13 November 2009 and the time of the trial H has spent time with the father pursuant to interim orders made in the Federal Magistrates Court on that date. S however refuses to see or spend time with the father with effect that she has not spent time with him since August 2009, that is, for more than 1 year.
The father is employed in Sales with D Group at T, having worked with that organisation for 11 years. Its business is machinery. The father earns about $85 000 per year. The father has re-partnered with Ms E, who presently is not in employment as she is considering other career avenues. They live in a rented premises in T. The father’s parents, the paternal grandparents, live a town between Brisbane and T.
Mr D, a director of the D Group, is very supportive of the father despite an incident of fraudulent dishonesty by the father some years ago which the father himself revealed to his employer and sought to make financial amends.
The mother since the separation has been primarily responsible for the children. She is a student, who hopes to become a counsellor upon the completion of her studies in a few years time. She is in receipt of Centrelink benefits, child support from the father of about $1258 per month and financial support from her parents, the maternal grandparents.
The naternal grandfather is a pastor. His ministry for several years was at T, at premises owned by the Church, where he and the maternal grandmother, together with the mother and the children, recently have lived. However, in April 2010 the maternal grandfather undertook to relocate his ministry to B, and is to take up work there imminently. B, it is common ground, is about 1½ hours drive from T. The maternal grandparents were required to relinquish the premises at T in August 2010. A new premises, also owned by the Church, has been arranged for the maternal grandparents at B. Hence, the mother’s proposal is that she and the children relocate to B to continue to live with the maternal grandparents and that the children attend the B State School. In the meantime, the Church has arranged the lease of a house premises in T for the nominal rent of $10 per week into which the mother and the children are moving pending the outcome of these proceedings.
The mother was in a relationship between January and May 2009 with a person with whom she has remained friendly, however, at the time of the trial the mother had not re-partnered.

Notice of Child Abuse or Family Violence

The mother filed a Notice of Child Abuse or Family Violence on 19 October 2009, Part E of which records:
1.On 15 August 2009, [Mr Frome], the Applicant father named in these proceedings, physically assaulted the child, [S] who was born [in] January 2002 and who is 7 years old, when he grabbed her by the right shoulder in an attempt to remove her from the mother and in doing so injured the child’s shoulder causing redness and pain.
2.On dates unknown between November 2008 and 15 August 2009, the father is alleged to have sexually and indecently assaulted the child [S] by touching her (undeveloped) breasts and her genitals with his bare hand and rubbing her pubic area with the palm of his hand. Details of he child’s disclosures of the alleged sexual assault are as follows:
a.      On 15 August 2009, [S] disclosed to [Pastor N] that the Applicant Father entered the bathroom when she finished showering her and dried her, that she didn’t like it and she had asked him not to.
b.      On 18 August 2009, [S] disclosed to the maternal grandmother and the mother, “Daddy touches my private parts” and, “I hate Daddy… because he touches my private parts.” I asked her “Where does he touch you?” She said “my tongue and here (she pointed to her chest) and my fanny.”
c.      On 21 August 2009 [S] made disclosures to CPIU and DOCS.
d.      On 26 August 2009 Dr. [SC] told the mother that she (the Doctor) couldn’t be 100% sure that [S] hadn’t experienced vaginal interference or penetration.
e.      On 1 September 2009 [S] disclosed to [Ms GA] and demonstrated to her how her father touched her body.
f.      On 4 September 2009, [S] made detailed disclosures to Dr [GI] of inappropriate sexual contact by her father following showering. Her disclosures included a description of how her father placed his fingers between her legs and then rubbed the front of her pubic area with the palm of his hand. She stated that this hurt her.
g.      September 16 & 30- [S] attended upon Dr [H] for therapeutic counselling and maintained disclosures of sexual abuse reported elsewhere.

At Part F the notice records:
1.The behaviour of the applicant father, [Mr Frome] as described at item 6 is considered to be consistent with the grooming and desensitisation phase of child sexual abuse. It is considered that the child [S] is at an unacceptable risk of harm, namely further sexual abuse, if placed in the care of the applicant father.
At Part G the notice records:
1.On 15 August 2009, [Mr Frome], the Applicant father named in these proceedings, physically assaulted the child, [S] who was born [in] January 2002 and who is 7 years old, when he grabbed her by the right shoulder in an attempt to remove her from the mother and in doing so injured the child’s shoulder causing redness and pain.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

Principles relevant to relocation proposals

In AMS v AIF (1999) 199 CLR 160 Hayne J made clear that an important, probably essential, step in the inquiry as to which parent should have custody of a child (to be read now as to with which parent a child should live) is to identify where the custodial parent intends to live, that being a decision for the parent not the Court; and that the question is not whether a parent has shown a good enough reason for wanting to move, which focuses attention on the parent, but which is better for the child, which focuses on the child, that question requiring attention to what benefits the child would have and what detriments the child would suffer from living with one parent in place A compared with the other parent in place B:
216. Any important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin…. .
A relocation proposal needs to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the s60CC matters and also in the context of s65DAA: Taylor v Barker (2007) FLC 93-345 at [60]. In McCall & Clark (2009) FLC 93-405 at [57]-[62] the Full Court referred to this necessity at [59]; and to the following analysis in Sealey & Archer [2008] FamCAFC 142 at [60]:
66.Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
67.In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings. On the contrary, the majority in Taylor & Barker said (emphasis added):
60. …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA…
62. … given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests. (Original emphasis)
Their Honours continued, in McCall & Clark (above):
61. No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
62. In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
In Starr & Duggan [2009] FamCAFC 115 the Full Court at [33] –[37] referred to the “interplay” between the paramountcy principle and the “framework” of the legislation emphasising that inevitably there will be dual consideration of some matters in particular because the consideration of the s 60CC factors “does not take place in a vacuum” but in the context of the competing proposals. The Full Court said further, despite Taylor & Barker at [81]-[83], which seemed to set out a formulaic approach, that such is not intended, as not mandated, such that:
38.…[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In Hepburn & Noble (2010) FLC 93-438 at [100] and [103] the Full Court re-affirmed these matters.

Principles relevant to findings of sexual abuse

In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
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.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

Approach to the analysis of evidence relating to sexual abuse disclosures

In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.

Principles relating to unacceptable risk of sexual abuse

In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“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.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“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.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC 92-271.

The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. …
and said (82,713-4):
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.
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

The evidence

The father relied upon evidence by himself, the paternal grandfather, Mr D, a director of his employer and Ms E, his partner.
The mother relied on evidence by herself, the maternal grandfather, the maternal grandmother, Dr H, clinical psychologist, Dr GI, general practitioner, Pastor N, Minister and Ms GA, journalist.
The independent children’s lawyer relied upon reports by Dr M, psychiatrist, and Ms L, social worker, who prepared the family report.
In addition the parties relied upon documentary evidence, exhibits 1-16, including the Magellan Report prepared by the Department of Communities (ex 1), an agreed bundle of documents selected from the documents provided pursuant to subpoenae (ex 7), an interview with S by Ms GA, journalist (DVD and transcript ex 2), other electronic recordings concerning Ms GA and accompanying transcripts (exs 4, 5 and 6), two electronic presentations made by V Organisation which were provided to the children concerning “Ditto the Lion”, being a DVD (ex 15) and CD-Rom (ex 16), and a book given to the mother by the Department of Communities called “Everyone’s Got a Bottom” (ex 14) apparently a publication of Family Planning Queensland.
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.

The disclosures made by S

Ms Lyons of Counsel, for the independent children’s lawyer, helpfully provided a schedule showing, chronologically, the disclosures made by S, the schedule being agreed to by Mr Selfridge of Counsel for the father and Mr Green of Counsel for the mother. Although lengthy, it is useful to set out the schedule in full. The abbreviations used in it are self-explanatory.

Summary of disclosures by [S]

Date	Particulars
14 May 2009	[S] allegedly tells her teacher “When I do tell him I don’t want to go, he makes me and takes me by the hand and makes me go with him but I can’t say no again.”
Thursday 04/06/09 (commences 4 days with father)	MGM states: “ [school Chaplain] took the children away and spoke with them. When he came back he told [the maternal grandfather] and I, [S] said she did not feel safe going with her dad. [H[ said he did not feel safe going without [S], that his father might do something to him (he did not say what).”
Monday 15/06/09	MGM states: “[S] told me that “[her] dad wipes [her] dry, he comes in when he hears the water stop.” Note that the extract from the MGM’s Diary as acknowledged by MGM in oral evidence states “wraps” not “wipes”. However the MGM gave oral evidence that the inclusion of the word “wraps” was an error and it should have read “wipes” as this was what she recalled [S] had said.
Monday 27/07/09	MGM states: “After school I heard the children talking again about not feeling safe.”
01/08/09	MGM speaks of [S] coming and asking MGM to turn the water on for her to have a shower, which she did. Later MGM went to check on [S] and found her with a towel around her and [S] asked MGM to assist her to get dressed. While passing [S] her clothes [S] said to MGM: “I feel uncomfortable when daddy wipes me.” MGM replied “does he wipe your hair?” [S] replied “he wipes my hair and all over my body and I ask him not to wipe me but he does.” MGM speaks of telling [S] it’s ok to say no.
Early August 2009	MGM says that [S] told MGM she doesn’t like him kissing her on the lips.
Saturday 15/08/09	M and MGM say that after returning home from a football match (where there was an altercation between the father, mother and maternal grandparents) [S] said she wanted to speak to a police lady but didn’t want to go to the police station.
Saturday 15/08/09	MGM says that [S] said she wanted to speak to [Pastor N]. After speaking with [Pastor N], [S] spoke with “[ON]” from Kids Helpline. MGM states “after she spoke with him [Pastor N], [Pastor N] put us in touch with ‘[ON]’ from Kids Help Line. [S] spoke with her but said she felt a bit scared, while she was talking to her. She said she tells her dad “no! I’m a big girl now, I’m not a baby, but he still says, I don’t care.” M records that during the conversation [S] had with [ON], she “heard [S] say that her dad had entered the bathroom when he heard the shower turn off and had wiped her dry.” [S] told [ON], that she tells her father that she is “a big girl and isn’t a baby and can wipe [herself] and that she doesn’t like it.” When [S] got off the phone she said she “was a bit scared talking to her.” [Pastor N] states that he had a telephone conversation with [S] who told him: “that when she visits with her father and the water stops after she has a shower, he comes in and wipes her dry. She told me that she doesn’t like it and that she tells him she’s ‘a big girl now, I’m not a baby’ but he tells her that he doesn’t care. She told me that she would like to talk to me in person and asked if I could go to [T].”
Sunday 16/08/09	[Pastor N] travels to [T] and states that he spoke with [S] and recorded their conversation (and conversation between [S] and [ON] from [V Organisation]). [Pastor N]: (8.18 sec) I have heard a story that you might want to tell me because I am not sure exactly what goes on, but I was told that when you have a shower, you get really worried when Dad comes in. Can you tell me what goes on there? How do you feel about that? [S]: When I am having a shower, Daddy comes in and says ‘hurry up’ and then I hop out.... I tell him that I don’t need him to wipe me and he comes in and says ‘no, I’m wiping you’ and when that happens, I say ‘Dad, I don’t need you to wipe me, I’m a big girl now and I’m not little’ he... still does it. [Pastor N]: How does that make you feel? [S]: I don’t like it. On the phone to [ON] immediately following: [Pastor N]: Tell her about your shower. [S]: When I have a shower, when he hears the water stopping, he comes in and he says, ‘do you want me to dry you?’ and I say, ‘no’ and he says, ‘well I am’ and I say, ‘Dad, I don’t need you to, I’m a big girl and not a little baby’. … [Pastor N]: Does Daddy still dry you to tell him not to? [S]: Daddy always dries me when I tell him not to and one time when we were at aunty […’s], I was playing with [H] I was pretending it was the first time I had ever met him, and I was shaking his hand and he was laughing... and then I just went a little bit harder and he was still laughing and then I just kept him on my hand and he fell onto the ground and all I did was tap him and uncle […] yelled at me … Umm I don’t like it, but sometimes when I’ve got a sore arm or my .... I let him, but most of the time, he always comes in and says, ‘no [S], I am drying you’ [Pastor N]: Do you feel safe at their house?And I don’t feel safe at their house Yeah He yells at me a lot To [S] – I just need to ask you a question dahl. We talked about the shower and how you feel uncomfortable with that. Is there any other times when you feel that your body is not safe? [S]: Hmmmmmm, no He states: “[S] again told me details about how her father insists on drying her hair after showering and other information which I found disturbing. I then telephoned [ON] at [V Organisation] who spoke with [S] as previously arranged.”
16/8/09 at 16.49 hrs	[Officer LO] spoke to someone on mobile (names blacked out) and was informed that the person had spoken with [S] on Sunday night and again on Monday morning when she disclosed that when her father was drying her, he used a brown/maroon towel with holes in it. Child was asked if there was any significance to the towel and “does he put anything through it” to which [S] said “no”. Child then asked “What happens next” and she said that she goes to her room and gets dressed and her father watches her and does not help her.
Tuesday 18/08/09	[Pastor N] states: “[S] spoke with me on the phone and told me that her father touches her ‘private parts’ ”.
Tuesday 18/08/09	MGM states that whilst at McDonalds, [S] came from the children’s playground up to her and said: “Granny, daddy touches my private parts.”
Tuesday 18/08/09	Mother recalls that after having a conversation with MGM later that day she asked [S], “can you tell mummy what you told granny this morning?” [S] ... said, ‘I hate daddy...because he touches my private parts’. I asked her ‘where does he touch you?’ She said, ‘my tongue and here (she pointed to her chest) and my fanny.’ ... As I went to hug her, she asked me, ‘what do you want me to do mummy? Do you want me to come home and tell you every time that Daddy touches me and what he does?’ I said, ‘darlin’ what we are going to do is talk to the right people and work out what we need to do to help you, Ok?”
21/08/09	· Record of interview between [S] and [Ms ST] (DOCS) and [Officer LO] (QPOL) at [T] Police Station at 11.52am · [S] stated · When she has a shower dad tells her to hurry up. When he hears the water stop he comes in and asks her if she wants him to dry her – she says no I am a big girl, not a baby and dad says well I am drying you anyway. · that she does not need help to be dried “not even when I have a sore arm” · this last occurred last week and occurs every time she has a shower at daddy’s · she has asked dad could he not come in after the water stops and daddy said OK but he came in anyway · dad says you should dry front and then back, but I like back and then front to be dried · daddy dries her legs and then goes up and up and dries her hair last. [S] stated that she asks to please do my hair first. · He does my legs first, front of legs then hair. · Daddy dries her roughly and not soft · Demonstrated with a hard and fast rubbing motion on her leg. · daddy uses a towel that is falling apart to dry her. · that it is mostly the towel that touches her body but sometimes its daddy’s hands. · [S] was asked how he touches you with his hands to which she stated she does not know “but he uses his hands a lot”. · he uses a towel to dry my legs up to my stomach and then his hands and then a towel to dry my hair. · it was a big towel for her legs, a hand towel for her middle and the big towel again for her hair. · daddy uses his hands to see if she is dry and described again the same rubbing motions she demonstrated earlier in the interview. · sometimes he touches her with his hands by accident and sometimes it is deliberate. · [S] was told to tell us about the times it is an accident, to which she replied, she could not remember. · [S] was asked about the times daddy touched her with his hands deliberately to which she replied that is to make sure she is dry. · daddy gets his hands and “touches me all over”. · [S] elaborated to say that daddy touches her with his hands on her stomach and legs and around her chest. · daddy touched her deliberately a couple of weeks ago but she could not remember it. · that the drying happens every week. · that when daddy dries her, it feels not nice and she does not like it. · Ditto the Lion teaches her lots of stuff about [V Organisation] like to tell the truth and not lie. [S] stated that she has three certificates that you get at the end of the Keep Safe game. · [S] was asked what Ditto teaches about parts of the body and [S] stated that he teaches you should not touch other peoples private parts · [S] stated that her private parts are her tongue, chest, around her legs and around her stomach. · stated that Ditto calls them private parts: face, chest, legs and belly · was asked what she calls her private parts – to which she replied: “I don’t know” · [S] was asked if she has ever told anyone that daddy touched her private parts – [S] stated yes, daddy does all the time when he dries me. · It goes big towel, hand towel, hands and then big towel, hand towel and hands. · Big towel for her legs, the hand towel for her tummy and then his hands to see if he has dried properly around those places. · [S] was asked if daddy says anything while she is being dried – to which she replied “he tells me to turn” · she told people about daddy touching her on her vagina and stated that she knows that is the part you use to wee. · he touches her there when he tries to dry her and then [S] explained again the drying motion of the towel rubbing her skin · stated that she has told daddy to stop touching her but he does not stop.
Sunday 22/08/09	MGM states that when crossing [a street in T] at a point where pedestrians give way to cars, [S] removed her hand from MGM. When MGM warned [S] that she could get run over [S] stated, “if I got run over I wouldn’t have to go to daddy’s again.”
26/08/09	Dr [SC’s] notes include the following entries: Child says her “fanny is sore many times” but is reluctant to talk about details, especially does not want to talk about relationship with her father. Examination: vaginal introitus erythematous and mildly swollen tissue previous vaginal penetration cannot be excluded with confidence.
26/8/09	[S] discloses to MGM “later in the afternoon” after the Dr [SC] appointment that “daddy does this”. MGM describes that child “went with her hand flat between her legs moving her hands backwards and forwards in a reasonably fast motion. Her face was screwed up.
1/9/09	[S] is interviewed by [Ms GA] and the interview is video-taped. Transcript p20 lines 17 to p 21 lines 1 to 9 MS [GA]: Now, does that mean you don't want to go away from Mummy, or does it mean that you don't want to go to Daddy? [S]: I don't want to go away from Mummy, and I don't like going to Daddy's. MS [GA]: So it's both? [S]: Mm. MS [GA]: And which one is bigger? [S]: Don't want to go to Daddy's because I like to stay with Mummy. MS [GA]: Well, what we need to talk about is why you don't like to go to Daddy's? What happens when you go there that you don't like? [S]: He yells at me, mostly MS [GA]: Has he ever hurt you? [S]: No. MS [GA]: No? Okay. So why would you be afraid of him hurting you if he's never - - - [S]: Actually, he has. At football one day, he grabbed onto my shoulder and tried to rip me off Mummy - - - MS [GA]: Right. Transcript p26 lines 26 to 41 MS [GA]: You're a bit of a night owl, are you? Okay. What about when it comes to bath time at Daddy's house? [S]: He comes in and dries me and I say I don't need him to. MS [GA]: Does the bathroom have a lock on it that you can lock? [S]: Yes, but he stays in there until I hop in the shower. And then I hop out and he comes in. So whenever he - - - MS [GA]: Why does he stay - why does he come in at the beginning of you having a shower? [S]: He turns on the shower for me because I can't do it. MS [G]: Right. Transcript p29 lines 17 to 39 MS [GA]: And that was okay with Daddy, or you just say this is - "[H] will help me. I don't need you to help me, Daddy; [H] going to do it." [S]: Yes. MS [GA]: Would that make it okay for you then? [S]: Sort of. MS [GA]: Better? [S]: Yes. MS [GA]: Manageable? [S]: Manageable. MS [GA]: The butterflies wouldn't go mad. [S]: No, not near as mad, but a little. Transcript p30 lines 21 to page 31 line 44 MS [GA]: Okay. So you know this - how many times has Daddy come into the bathroom when you've come out of the - - - [S]: Every time. MS [GA]: Every time. And does he do the same thing every time? [S]: Yes. MS [GA]: Yes. [S]: He uses the big towel for my legs and then he uses the little hand towel for here and here and on my back. And then he uses his hands to check all those places are dry and then he goes back to the big towel and then the little – the hand towel on - - - MS [GA]: Big towel? [S]: Big towel. MS [GA]: Why does he go back to the big towel? [S]: I have no idea. MS [GA]: To wrap you up or something? [S]: No. To do the rest of my head with. But I only want my head done with the - I don't want my head dried. I only want my hair dried with the big towel. MS [GA]: Big towel. [S]: Yes. MS [GA]: So do you ask him to use the little one, do you? [S]: No, he just gets it. MS [GA]: Why do you think he uses a little towel? [S]: I have no idea. MS [GA]: Right. [S]: And it's crazy. MS [GA]: Right. And when he does that, does he - what does he touch you with? [S]: His hands. MS [GA]: Just his hands. [S]: His fingers, too. MS [GA]: What do you mean, "his fingers, too"? This part of his fingers? [S]: Yes. Here and his palm. MS [GA]: And his palms of his hands. [S]: Yes. MS [GA]: Okay. And have you asked him not to do it if you don't like it? [S]: Mm. MS [GA]: Yes? [S]: He would say, "I don't care. I'm still doing it." I've asked him to do that once and that was the - that was what he said. Transcript p32 line 4 to page 34 line 17 MS [GA]: Can you show me how he dries you? [S]: With this one. MS [GA]: You be Daddy. [S]: He'll go like that and then with his palm he'll go really hard, which I have no idea why. So he's soft with his fingers and then hard with his palm. MS [GA]: Right. [S]: And this is the big towel. Now hand towel, now hands. Now big 15 towel to do his - my hands. And then little hand towel - no, and then hand towel, yeah, to do that, and And then back to - - - MS [GA]: Does he do your back at all? [S]: Yes. MS [GA]: Okay. [S]: With the hand towel. And rubs it. MS [GA]: And do you - when he's doing this thing with his hands and his palm - - - [S]: Yes. MS [GA]: - - - does he - are your legs together? [S]: Sometimes the legs is, sometimes they're open. MS [GA]: And does he do that or do you do that? [S]: He does that. He gets my legs and pulls them apart, and then I try to close them but he says, "Please, [S], keep your legs open." And then I say, "No, Daddy." MS [GA]: I what? [S]: I - he say - I say, "No, Dad, I don't need you to dry there," and yes. MS [GA]: Right. So can you show me what he does? Maybe if I use - if I have Humpty Dumpty that will be easier, and you can be Daddy. Can you just show what he does? [S]: Big Daddy. MS [GA]: Little [S]. [S]: Now, he goes soft and then he goes hard. MS [GA]: Like that? [S]: Yes. MS [GA]: When you're already dry? [S]: Yes. MS [GA]: Just with his bare hands? [S]: Mm. MS [GA]: And does that hurt you? [S]: Yes. MS [GA]: It hurts you. And do you tell him that that hurts? [S]: Yes, and he says, "I don't care." MS [GA]: Right. Okay. So what would you do if he did that again? [S]: I'd say, "No, Daddy, I don't need you to do that. I'm not a little baby; I'm a big girl." MS [GA]: As in drying yourself? You don't do that to yourself if you're drying yourself, anyway - - - [S]: No. MS [GA]: - - - to check you're dry, do you? [S]: No. MS [GA]: No. [S]: All I do is I look and if I seen drops I'd do it again with the big towel. MS [GA]: With the big towel? [S]: Yes. MS [GA]: Yes. [S]: And I wouldn't keep swapping towels. And then he has to wash two towels. MS [GA]: So how many times would he have done this to you? [S]: I have no idea. It's a lot. MS [GA]: Is it every time he dries you? [S]: Every time except one night that we're there for the Thursday, which - because we go there on the Thursday. It'll be only four Thursday, and then the next week we go for four days and starts on the Thursday. But when it was the second time of Origin we had to go on a Wednesday, and I said, "Dad, I want to come home early," and it was a school miss day on Monday, so we had to stay until Tuesday, which was really long. Transcript p 34 lines 23 to 26 MS [GA]: It is. So he's done this to you with the fingers and the palm every time that you can remember that you've had a shower at his house? [S]: Yes.
03/09/09	Queensland Police Service records show that [S] states to Father during telephone conversation “I don’t want to see you daddy” and “I just want to stay with mummy”.
03/09/09	[S] states: “Hello. It’s me, [Ms GA]. I rang up Daddy and he was – he said – and he was yelling at me, and he – he – I’m too scared to tell him that I don’t want to go. And he always upsets me. Bye.”
04/09/09	Mother takes [S] to Dr [GI] during which consultation [S] “made detailed disclosures to Dr [GI] of inappropriate sexual contact by her father following showering. Her disclosures included a description of how her father placed his fingers between her legs and then rubbed the front of her public area with the palm of his hand. She stated that this hurt her.” Dr [GI’s] notes: · “touching her “private area” – she pointed to her perineum. · Showering is an issue · He never used to dry her · since April · insisting on drying her after the shower – she doesn’t [sic] want him to · dries her with large towel, hand towel and with his hands · dries her · private “area with towel and then just with his hands” · with his fingers softly and with his palm very hard” · She said she doesn’t want him to do it · He says “he doesn’t care and keeps doing it”.
04/9/09	Notifier informs department that: · She didn’t want to be with her father · “He is mean to me and yells at me” · “He touches me in private areas” – she pointed to her perineum · When asked about what happens, she described that the problem is after having a shower. Her father dries her, at first with a large towel, then a hand towel and then touches her without a towel in the genital region. · He touched her softly with his fingers and then very hard with the palm of his hand. She told him that she didn’t want him doing this and that he said “I don’t care” and kept on doing it. · Reported that this happened on numerous occasions. · Reported that her father did not dry her after her shower when he was still living in the family home (pre October 2008) – not since she has been independent in ADLs (last 2-3 years). Mother does not dry her after showers. · When [S] was reporting the above, she appeared agitated when talking about being “touched in the private area” and describing what is happening · Reported that she has asked her Mother to protect her.
7/9/09	[S] attends her first appointment with Dr [H]. The following sets out the account of the disclosures by [H]. Given Dr [H’s] evidence (XXN Selfridge), the only actual quotes of [S’s] disclosures is contained in inverted commas. [S] reports that from this time of starting to sleep at her father’s house, her father would come into the bathroom when she was having a shower and insist on drying her. [S] states that the process of drying was “very long” with the same pattern each time. Her father would first dry the top half of her body. He would then touch her torso with his palm, then his fingers. His focus was her chest area. [S] reports her father would then use the towel to dry the bottom half of her body. Again he would touch the bottom half of her body with his palm. [S] reports that for her upper and lower body he used friction/pressure with his palm. She demonstrated this pressure to the author. Her demonstration suggests moderate/friction pressure to the skin. [S] stated it hurt when he would use his palm. [S] reports her father would then touch her lower body with his fingers ending up on her vagina. She illustrated with a drawing and explained with verbal description that it was in and around her vagina that he spent most of his time with his fingers. She states that he touched the outside and the inside of her vagina. She states that he did not digitally penetrate her vaginal canal. [S’s] consistent reports indicate her father touched her vaginal outer and inner lips and clitoral area. The client states it was not until her father had finished an extended period of time touching her vagina with his fingers that she was allowed to leave him and get dressed. During the drying/touching process [S] states that she was not allowed to keep her towel wrapped around her. [S] reports that she became very fearful of shower time and would try to tell her father that she could dry herself. She would routinely try to avoid having a shower at her father’s. [S] could recall no occasion when she was successful in avoiding having a shower at her father’s and therefore her father’s “drying” ritual. [S] reports her 8 year old brother was routinely kept entertained elsewhere during [S’s] shower time. Television and play station were used to keep him away from the bathroom. [S] recalls that there was only one occasion that her brother came into the bathroom. She states she felt extremely embarrassed and ashamed standing there naked with her father, when her brother came in. She reports she grabbed for her towel and ran out. She quickly got dressed when her father came to get her to finish “drying her”. She was able to say she was already dressed and therefore avoided the resumption of the “drying” process. [S] recalls feeling scared, embarrassed and confused. She reports routinely feeling sad and unsafe and feeling like she was going to vomit. “He makes me feel scared and yukky like I’m going to puke”. During the actual touching the nausea would escalate with the sensation that she felt she was going to vomit immediately. [S] reports knowing that what was happening was wrong and not understanding why her father was doing it. She describes feeling powerless as her father would override her protests and efforts to avoid his touching of her. [S] reports she would say “Daddy please don’t touch my private parts”… ”Does daddy touch my privates when he is being mean to me? Because he loves me?” She reports that she knew it “felt not right” and that her “private body parts should not be touched.” She felt embarrassed and therefore felt pressure to keep it a secret. “I was scared to tell people, I don’t know why” [S] reports her brother recalled having been kept away when [S] would have a shower at their father’s. [S] states her brother also recalled the occasion that he had walked into the bathroom with [S] standing naked in front of their father. [S] reports having “My Safe Place” in her mother’s attic when I could hide if Dad came and he wouldn’t find me
16/09/09	Transcript p3 line 2 to line 16 MS [GA]: Okay. Okay. Now, when you were talking you said that there was a hole – a towel with a hole in it. Is – do you remember anything happening with that towel or that hole? [S]: Um, no. MS [GA]: It’s just that you noticed that that was the colour of the towel, and that it has been holes in it. [S]: Mm-mm. MS [GA]: But nobody puts anything through these holes? [S]: Nn-nn. Transcript p3 line 29 to p4 line 9 MS [GA]: Can you – we know that one of his hands was doing that. Where was the other – where – do you know where his other hand was? [S]: Um, no. I don’t. MS [GA]: You don’t? No that’s okay, darling. That’s all right. And once that stops does Daddy – what happens then? [S]: Um, when I’m dry he does out and he – and I go into my bedroom and he comes in while I get dressed. MS [GA]: You go to your bedroom and what? [S]: He comes in while I’m getting dressed. MS [GA]: Right. Does he help you get dressed? [S]: No, he just stands there.
Sunday 04/10/09	MGM states that when discussing going to [H’s] footy presentation with [S], she stated, “if daddy comes I’m not going, he would touch my private parts again.” [S] then told MGM how she had told [H] in her tree house about what their dad does to her. [S] further stated to MGM: “‘I didn’t tell [H] all of it’, she paused, ‘he touches me gently with his fingers then rubs it hard with the palms of his hands’.”
20/10/09	[S] attends appointment with Dr [H] She disclosed contemplating hanging herself No intent or plan was disclosed
14/10/09	Mother reports that when in the classroom with [S] the children were asked to write the ending to a story where the children were supplied with the beginning. [S’s] ending was “the chook hung itself.” When M said to [S] you can’t write that, [S] burst into tears. M reports that later that night she spoke to [S] and asked her why she had written what she did and [S] said, “I sometimes think I should hang myself so I don’t have to see daddy anymore and I can’t feel like this.” M records that [S] has made comments about killing herself before.
16/10/09	Child interviewed by [Ms L] (Family Report Writer) and says: · “he touches my private parts and he yells at me” · what she meant by “private parts” and she explained as she pointed, “my chest area (pointing to her chest) and between my legs and my bottom”. · when asked where her daddy is when he does the touching, [S] said “at his house in the bathroom” · “he uses a big towel to dry me and he doesn’t need to, I don’t want him to. I’m not a baby and I’m a big girl and he says I don’t care and he uses a big towel and then a hand towel for my belly and for my back (pointing as she spoke) and then he uses his hands to check I am dry. He does it with his fingers, soft and his palm really hard on my vagina and everywhere he dries.” · “every time I have a shower when he hears the water stop he comes in” · when asked if her father did these things when he and her mummy were living together she definitively said ”no”. · when asked if he did these things when she and [H] visited but did not stay the night, she said “no”. · when asked if she had told the police about her dad touching her, [S] said “yea, only the little bit of the story and I don’t know why I only told them a little bit of the story.” · When asked if she was worried about seeing her daddy she said “yes I don’t want to see him because he yells at me and touches my private parts” … “yes and I don’t like it”. · When asked how he touches her she said “with his hand” · When asked specifically about whether or not she called her father to go into the bathroom after her shower to dry her, [S] definitively said “no”. She said “I wouldn’t, only when I was a little girl would I yell out daddy can you come and dry me when I was really little”. When asked specifically if she had called out to her daddy to dry her after she and [H] were staying overnight with him following mediation in 2009, [S] said “no” · When asked about seeing [Ms GA] and whether or not she was video taped when [S] spoke to her, [S] recalled this immediately and said “yes, and I think it was actually good I did that because then I can get more help to talk about what daddy is doing to me, like how he touches my private parts and how he is mean and he yells at me”
14/01/2010	[Ms C] notes that: “[S] told me she did not want to see her father but cited reasons such as, words to the effect of, ‘he sometimes says he will do things with us and he doesn’t do it’. She did not make any disclosures regarding the abuse. She did tell me that she talks with [Dr H] about such matters. At the conclusion of my sessions with [S] she told me this information. She said there was something she wanted to tell me and [H] quickly left the room.”
Saturday 27/03/2010	Mother reports that she and [S] had been watching a movie that included a storyline of a child losing her mother and being brought up by her father. After watching the movie the mother states: “[S] said she would not want to live with her father or to see him.” She said, ‘if I have to see him again I will kill myself.’ I think I just looked at her in disbelief before she went on to give me details of how she would do it. [S] explained that she would ‘get a rope from my dad’s shed, tie it to the big branch on the tree’ and she would jump off the fence and that would kill her. I remember saying what about all the people who would miss her and about all the good things in her life. I asked her what about her dreams for the future ‘to be a baby doctor and to have her own children’. She repeated ‘if I have to see him, I will kill myself.’ I was shocked, yet [S’s] demeanour was matter of fact.

I would reiterate that I have no power to order the mother to live at T. If the parties wish ultimately to live in separate locations, that firmly is the choice of each, my function in such circumstance being ultimately to decide whether the children’s best interests would be met by living predominately with one parent at his or her preferred choice of location X or the other parent at his or her preferred choice of location Z, such preferred choices being matters to take into account: AMS v AIF (above) at [216], [218]; MRR v GR (above) at [5], [15], [19]. The interim order I propose to make thus does not have the effect of requiring the mother to live at T. Rather its effect is that, on the interim basis, the children live with her provided that she chooses to live at T until further order, to allow the process with Mr O to ensue. If the mother chooses not to do that, in the short term, she should notify the independent children’s lawyer immediately. It is however, in my view, in the children’s best interests that she do so, to enable the therapy with Mr O to continue with the father, the mother and the children involved. It is not an uncommon observation in this Court that children often may be traumatised initially by a specific circumstance, and then respond positively to change with appropriate support. Hopefully the mother will be able to put the children’s best interests ahead of her own, and agree to live with them at T pending the period of therapy with Mr O. If she is not prepared to do that, or for any reason cannot do that, to allow the therapy with Mr O to proceed to fruition, then at the next listing of the matter her reasons for such will need to be explored.
Finally, the independent children’s lawyer sought an order that the mother be restrained from engaging Dr H or any other like professional for any therapeutic counselling for the children. On 26 February 2010, the parties consented to an order that S not be taken to Dr H. In my view, the role or Dr H, Ms GA, Pastor N and the organisation known as V Organisation in this matter has effect that it is necessary in the children’s best interests that I restrain the parties from causing or allowing either of the children to attend on or come into contact with them.
Otherwise, the orders I propose to make are not controversial.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:

Date: 6 December 2010