Frost & Morrison
[2022] FedCFamC1F 1034
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Frost & Morrison [2022] FedCFamC1F 1034
File number: HBC 286 of 2021 Judgment of: MCGUIRE J Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – CHILDREN – Application by the father seeking orders to spend graduated time with the child of the relationship in circumstances where he has not seen the child since May 2020 – Application opposed by the mother who contends that the child is at risk of sexual harm in the father’s care – Consideration of unacceptable risk – Unable to make positive finding that the father intentionally sexually abused the child – Unable to make positive finding that the mother fabricated or manipulated a false allegation of sexual abuse – Finding of unacceptable risk of sexual and emotional abuse of the child in the care of the father – Consideration of tools to mitigate that risk – Order for no time between child and father – Dismissal of mother’s application for a change of the child’s surname to her own surname Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited: Blann v Kenny (2021) 64 Fam LR 120
Briginshaw v Briginshaw [1938] HCA 34
CDJ v VAJ [1998] HCA 67
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Galea v Galea (1990) 19 NSWLR 263
Isles & Nelissen (2022) FLC 94-092
Mazorski v Albright (2007) 37 Fam LR 518
N & S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Division: Division 1 First Instance Number of paragraphs: 296 Date of last submissions: 12 September 2022 Date of hearing: 19, 20, 21 and 22 April 2022 and 5 August 2022 Place: Hobart Counsel for the Applicant: Mr Kovacic Solicitor for the Applicant: Ogilvie Jennings Counsel for the Respondent: Mrs Mooney S.C. Solicitor for the Respondent: Legal Aid Commission of Tasmania Counsel for the Independent Children’s Lawyer: Mrs Ryan Solicitor for the Independent Children’s Lawyer: Butler McIntyre & Butler ORDERS
HBC 286 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FROST
Applicant
AND: MS MORRISON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
22 december 2022
THE COURT ORDERS THAT:
1.All previous parenting orders in respect of the child X (“X”) born 2015 be and are hereby discharged.
2.The mother have sole parental responsibility for X on the condition that she keep the father prudently advised of any serious medical issues in respect of X.
3.X live with the mother.
4.X spend no time with the father.
5.The father be permitted to communicate with X by way of cards and/or gifts on her birthday and at Christmas, such to be sent to an address or post office box to be provided by the mother to the Independent Children’s Lawyer within 14 days of the date of these orders and then advised to the father by the Independent Children’s Lawyer provided that the mother be able to scrutinise or edit the contents of any or all of such communication prior to receipt by X on the basis of the mother’s objective discretion as to inappropriate comment, and where the mother is to permit communication in respect of X to the father (if the child requests) such be sent by the mother to an address to be provided by the father to the Independent Children’s Lawyer within 14 days of the date of these orders.
6.The mother’s application to change X’s surname is dismissed.
7.All extant applications, except for costs, be otherwise dismissed and the matter be removed from the list.
8.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Frost & Morrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child namely X born 2015 (aged seven years) (‘X’).
The father, Mr Frost, is the applicant. In circumstances where he concedes not having spent time with X since May 2020, and where there are issues of alleged child sexual abuse/unacceptable risk, the father concedes that X should live primarily with the mother. He proposes an order for equal shared parental responsibility. He suggests a sympathetic and staged reintroduction of his relationship with X including, if necessary, a period of supervised time and the assistance of Family Therapy.
The mother, Ms Morrison, asks for an order for sole parental responsibility for X. Coupled with this she proposes a specific order changing X’s surname from “Frost” to “Morrison”. This is in circumstances where the mother argues that X has been sexually abused by the father and where there is no current relationship between father and child. The mother does not propose any orders for the time between X and the father.
The Independent Children’s Lawyer (‘ICL’) supports the mother’s case.
THE FATHER’S CASE
The father denies all allegations that he has sexually assaulted X. He concedes that he has bathed naked with X. He concedes that he may have cleaned her genital area. The implication of the father's argument is that the mother has either manipulated the child and/or coached the child to make false allegations for her own agenda thwarting his relationship with X.
The father says that prior to 2020 he spent frequent time with X and that they enjoyed a happy and meaningful relationship.
The father says that he would accept any restraint on bathing and/or showering with X. He would accept a period of supervision to give comfort to the child in re-establishing their relationship. Similarly, his says that he would accept a regime of Family Therapy in order to resurrect that relationship.
The father says that he has re-partnered and there is a young child of that relationship where X would benefit, therefore, in being a part of the father’s family unit.
The father says that the mother is motivated in thwarting a relationship between he and his daughter by her personal animosity towards him and including hostility towards his religious beliefs and affiliations.
The father also denies each and all of the mother’s allegations of family violence asserted to be perpetrated by him against her including allegations of sexual violence.
THE MOTHER’S CASE
The mother alleges that X has made a number of statements over a period of time consistent with the having been sexually abused by her father. The mother says that X’s disclosures are voluntary and have not been manipulated, coached or enticed by leading questions.
The mother says that the unacceptable risk for X in the care of the father is compounded and corroborated by her own experiences of sexual and other violence at his hands during the course of their relationship.
The mother argues that the unacceptable risk posed by the father to X cannot be mitigated by way of supervision where the evidence is that X’s emotional and psychological health would be further damaged by direct contact with the father.
The mother asserts that her own emotional well-being and parenting capacity will be compromised by further time between X and the father given her own past history with the father and her conviction that time between X and the father is not safe for the child.
The mother says that X is expressing a clear wish not to have contact with her father. Whilst X is just seven years of age, the mother argues that X’s statements are consistent with her fear of the father and her uncomfortable experiences in his care.
In circumstances where the mother argues for sole parental responsibility and no time for X with the father she says that X’s best interests are attended by her sharing a surname with her mother. She says that X is young and just starting school and would not experience any embarrassment or confusion in a name change, but where she currently bears the surname of her father who she does not want to see and about whom she harbours negative memories.
THE ICL’S CASE
The ICL argues that on the evidence the Court should find an unacceptable risk to X being in the care of the father. Like the mother, the ICL argues that supervised time would potentially be psychologically damaging to the child. The tenor of the ICL’s submissions is that the Court should make findings that the father is of violent disposition including a propensity for sexual violence inflicted on the mother.
Despite the assertive nature and tenor of the ICL’s final submissions in respect of the evidence and where she urges no orders for time between the father and X, the ICL, perhaps oddly, does not urge the Court to make any positive findings of fact in respect of the allegations against the father. When challenged in this respect during final submissions, the ICL responded that “it was not necessary” where the Court could simply make a finding of unacceptable risk. It is the task of these Courts to make findings of fact where available and possible. The consideration of “unacceptable risk” is in no way a default process available to a court but rather a separate and independent consideration and one perhaps with a different evidentiary standard where the Court looks prospectively to the notion of “risk” and whether such risk can be mitigated so as to relieve it of the adjective “unacceptable”. Primarily, however, the Court retains a fact-finding role.
BACKGROUND
The ICL provided a very helpful and comprehensive chronology of events in the case summary document. That chronology was repeated by the father in his case summary with the addition of his specific denials to particular allegations. It is helpful, therefore, for the context of these Reasons for me to borrow from that chronology.
The father was born in 1988 and is 34 years of age. The mother was born in 1994. She is 28 years.
The parties commenced a relationship in 2014. They do not agree as to the status or commitment of the relationship.
In about 2015/2016 the mother was diagnosed with depression and anxiety.
X was born in 2015.
The mother alleges sexual assaults on her by the father in early 2015 and specifically in late 2015. The father denies both allegations.
The mother alleges sexual assault by the father on the number of occasions in early 2016 including a specific occasion in about early 2016 at the home of the paternal grandparents. The father denies the allegations.
The mother alleges that the parties separated in about June 2016 but continued a casual relationship until late 2017. During this period the mother asserts that the father spent time with X about once a week for six months and always in the mother’s presence. The mother alleges that the father expressed suicidal ideation at this time. The father asserts that he spent “regular time” with X during the period up until late 2017.
The mother alleges that the father bathed naked on occasions with X until she was of crawling age and that she observed the father in the bath with X and that his penis was erect.
The mother alleges that in mid-2016 the father “smacked [X] hard” whilst at a restaurant causing the child to cry hysterically and vomit. The father admits to “smacking [X]” but denies using any force or that the child had any significant negative reaction.
In mid-2016 the parties travelled together to Queensland. The mother says that she discovered the father’s Tinder communications with other women. She alleges that the father then shoved her causing her to fall and that she hit a chair whilst she was holding X.
The mother asserts that during the second half of 2016 the father spent only ad hoc time with X.
In late 2016 a Family Violence Order issued in favour of the mother but not restricting the father’s time with X. This resulted from an argument between the parties in respect of religious differences where the father is or was an adherent to the W Religion.
In mid-2017 the mother began therapy with Dr B, psychologist.
A short time later, in 2017, the parents again travelled together to Queensland for a holiday and the mother alleges the father was again using Tinder. At this time the mother says the father commenced a consistent regime of seeing X for one day per week such continuing until X was three years old.
In late 2017 the parties drafted a parenting plan with the assistance of Relationships Australia.
On or about late 2017 the mother alleges that the father attended her home uninvited and demanded sex. She further says that the father threatened to kill her with a knife. The father alleges that the mother was violent towards him and threatened to punch him in the head.
At that time, a further Family Violence Order was made in favour of the mother. The father asserts that the relationship ended at that time.
In late 2017/early 2018 the mother alleges that the parties were “socialising” at her home where the mother says that the father sexually assaulted her resulting in a pregnancy which she later terminated. The father denies the alleged assault.
In early 2018 the father cared for X for three consecutive days whilst the mother was hospitalised for surgery.
The mother alleges that the father forced his entry into the maternal grandmother’s home and assaulted a male person present on that occasion. The father says that he arrived at the home to find the mother drunk and a male person present where an altercation developed with this person. Police attended. The father was charged with assault in breach of the Family Violence Order.
The mother alleges that in mid-2018 the father sent her 22 text messages between the hours of 2:42 pm and 9:16 pm. Further, the mother alleges that in mid-2018 the father called her on a number of occasions wanting to attend at her home whereupon the mother refused the request and the father threatened to remove X from her care.
It is agreed that the father met his new partner, Ms C, in early 2019.
From early to mid-2019 the mother asserts that X no longer liked to wear underpants and consistently returned from her father's care wearing a dress but no underpants. The mother says that the father did not respond to her enquiries in respect of these issues.
The parties agree that the mother commenced a relationship with Mr E in early 2019. The father says that upon meeting Mr E he noticed to him to be suffering a black eye. The father alleges that the mother and Mr E were involved in a car accident where the mother was driving, speeding and rolled the car on a gravel road during a time that X was in his care.
As of mid-2019 the parties agree that X was consistently spending one day a week in the care of the father. The parties also agree that the father was co–sleeping with X which she later describes as “spooning”.
In late 2019 the father asserts there to have been difficulties between the parties in respect of child support.
In late 2019 the father married Ms C. The father and his wife, Ms C, moved into a home that they had purchased at Suburb D, City F. At this time X commenced spending weekend time with the father from Friday to Sunday.
In late 2019 the mother alleges that X disclosed that the father had been bathing with her whilst naked. X also talked about “big hair” and referred to the groin area. The mother asserts that X also claimed Ms C to have showered naked whilst the father and X were in the bath. The mother raised the issue with the father and alleges that the father responded it to be “natural”. The mother further asserts that X made statements of concern to her in respect of “a mushroom growing in the bath”.
In late 2019 the mother was charged with an assault following an incident at AA Precinct and in circumstances not related to these proceedings.
In early 2020 the mother and X were at a neighbour’s home which was the subject of a home invasion. The mother was assaulted. X did not witness the assault as she was in another room.
As from early 2020 the mother asserts that X stated that she no longer wanted to spend time with the father and became tearful on expectation of visiting the father.
In early 2020 X commenced spending full alternate weekends with the father and on occasions for one night during the off-week.
In early 2020 the mother says that she recorded conversations with X on Snapchat resulting in an a number of relatively short recordings including for instance:
Mother: tell me about what happened in the bath with your daddy?
[X]: Well sometimes he touches my vagina
Mother: say what else does he do?
[X]: (looking at camera) well sometimes he pokes his finger in the little hole
Mother: MMMM
[X]: yeh (continues to smile and look at camera)
(Emphasis added)
The father specifically denies having sexually assaulted X and denies inserting a finger into her vagina.
In 2020 X commenced school at G School.
Early/mid-2020 the mother asserts that X began making comments such as:
•Talking about a corner and saying when dad puts his tongue in the corner it is a secret.
•X said Mr Frost had a nut in his bum: and she has to get it out. She said that he gets it and gives it to her and sometimes gives it to Ms C.
The mother video recorded X and contemporaneously spoke with her friend Ms J.
In early 2020 the mother alleges that X began to wet the bed around twice a week.
Early 2020 the father alleges that the mother raised concern about X attending the H Venue.
In mid-2020 X returned from spending time with the father and Ms C. The mother alleges:
·X refused to have a bath, screamed and went red and continued to cry;
·Later that night the mother alleges that X said “I don't really want to have a bath with dad anymore because it really hurts when he cleans my vagina”. The mother responded “what?” and X is alleged to have said: “I don’t like it when he puts his finger in, it hurts”. The mother alleges that X asked her mother not to tell anyone “as she would get into big trouble”; and
·The mother alleges that X made further disclosures over the coming days that the father had touched her vagina when he was washing it and that he put his finger in it and it hurt.
The father denies having sexually assaulted X and denies inserting his finger into her vagina. The father does, however, concede bathing naked with child at around the relevant time and volunteers that he felt required to cleanse the child’s genital area.
The mother denied the father time with X on or about mid-2020. The mother attended a Telehealth appointment in mid-2020 with K Health Centre whose records state:
Father is sexually abusing her [child], is taking baths with her Dad, he sticks his finger inside and she must keep a secret and not tell. She is wetting bed, refuses to get in bath.
In mid-2020 X was interviewed by two female Senior Constables at the mother's home with the mother in an adjacent room. X did not repeat the disclosures and when asked directly by the Police Officers about bathing at her father’s home X responded “we just relax, sit down… nothing more”. It is reported that X became upset and ran to her mother for comfort. The interview was brought to a close.
A short time later, in 2020, X consulted with Dr L, GP and in order to “establish a rapport”. X repeated no disclosures.
The mother refused the father time with X the following day in 2020.
In mid-2020 Dr L messaged the mother to make a further appointment with X.
A short time later, in 2020, the father contacted the mother apparently in respect of seeing X. The mother responded negatively and specifically saying “[X] doesn’t want to see you”. The father asserts that he went to X’s primary school and that “[X] was happy to see him and asked to stay the night”.
In mid-2020 the father sought advice from the City F Community Legal Service and says that a letter was sent to the mother dated mid-2020. The father, his wife Ms C and the paternal grandmother attended the mother's home and asked if X could come to dinner. The father says that the mother dragged X away from him.
In mid-2020 the father was telephoned by Tasmania Police regarding allegations of sexual abuse of X. The father did not engage in a police interview on advice from his lawyer. At around this time the father contacted X’s primary school in an attempt to arrange a visit her, but was told then that the mother had applied for a Family Violence Order.
Some days later, in 2020, X attended for a further consultation with Dr L and disclosed:
·On closer questioning X said “daddy puts things in my vagina in the bath”.
·He uses his hand and sponges to wash vagina and she doesn’t like it.
·On specific question questioning she says that it hurts.
·She also says that Daddy sometimes goes into her bed when she is sleeping but doesn’t touch her vagina.
·She says that she sometimes goes into daddy’s bed at night and he sometimes touches her vagina with his hand and it hurts. She says that he does not touch her vagina with his penis.
In mid-2020 the mother says X attended three sessions at M Service but did not the engage and that the counsellor suggested that the process discontinue.
In mid-2020 the mother says that that the father attended a Sports Centre and intimidated and harassed her friend Ms J. The father says that he attended only for a scheduled game and did not engage in inappropriate behaviour. He says that he questioned Ms J as to whether she knew why the mother was not allowing X to visit him. He says that the conversation was brief and in public.
In mid-2020 the mother obtained an interim Family Violence Order against the father alleging stalking behaviour.
A short time later, in 2020, X was further interviewed by a Tasmanian Police Officer, Ms N and made the following disclosures:
·sometimes Daddy touches my vagina (at seven minutes into interview);
·the officer says “you just told me your daddy sometimes touches your vagina. Tell me all about that” and X responds “he just does it to clean my vagina. It just happens in my bath and in my bed. That’s all. He keeps touching my vagina”; and
·when asked by the Officer below, “tell me everything that happened” X responds “I don’t want to talk about it”.
In mid-2020 the mother failed to attend pre–arranged mediation.
In mid-2020 X attended a further medical appointment. The mother says she has had suffered two weeks of a medical condition and “some stinging and itching after voiding”. No internal examination was undertaken but a urine sample was taken. X was not questioned on this occasion in respect of previous disclosures and volunteered no disclosures. The urine sample was tested and no urinary tract infection was shown.
In late 2020 the father posted a gift to X. Mr E returned the gift by attending the father’s home and climbing the fence to return the gift.
In early 2021 a final Family Violence Order was made to expire mid- 2021.
In early 2021 the father commenced these proceedings seeking interim orders for supervised time and final orders for time with X on a traditional regime of each alternate weekend, Wednesday nights and time during school holidays. The father sought equal shared parental responsibility.
In early 2021 the mother transferred X’s enrolment from a suburban primary school to O School being some distance from City F Central Business District.
On 10 May 2021 an ICL was appointed.
On 24 May 2021 the mother filed a response seeking sole parental responsibility and that X spend no time with the father.
On 29 June 2021 a report pursuant to s 69ZA of the Family Law Act 1975 (Cth) (“the Act”) (Child Safety Report) was released.
On 30 June 2021 an unsuccessful Child Dispute Conference was held.
In mid-2021 a child was born to the father and his wife Ms C being P.
On 9 July 2021 interim orders were made following a defended hearing and providing inter-alia:
·that the parties were ordered to engage with the Children’s Contact Service and for supervised visits to commence after 1 October 2021;
·that supervised visits were to be suspended should the single expert recommend against them; and
·a single expert be appointed (Dr Q).
In September 2021 the parties and X attended for interviews with Dr Q.
On 23 September 2021 Dr Q reported by letter to the ICL that she considered there to be a number of risk factors present in the case which needed further consideration and that the nature of the disclosures needed to be examined carefully. Dr Q advised “I do not support supervised access continuing at this stage”. Dr Q’s letter was distributed to the parties by the ICL on 24 September 2021.
On 26 October 2021 the Single Expert Report of Dr Q was released.
On 2 December 2021 an order was made pursuant to s 102NA of the Act for the father to be represented where there were issues of family violence.
On 4 February 2022 the final hearing anticipated to commence 7 February 2022 was adjourned. The trial commenced on 19 April 2022 and occupied six court days.
In early 2022 the father consulted psychologist Mr R and engaged with a service for what he says was a relapse into the use of a prohibited substance.
THE ISSUES
The obvious and major issue in this matter is the allegation by the mother that X has been sexually abused by the father. The task for the Court is to consider whether it is available on the evidence for the Court to make a finding of fact either that the child X has been abused in the particulars alleged or that the child X has not been abused.
The arguments of the mother and the ICL here are focused towards the Court finding an unacceptable risk for the child spending time with the father. Issues then arise as to, if such a risk is evident and prima facie unacceptable then can the risk be mitigated by tools available to the Court and most prominently by supervision?
There is then raised an issue as to the emotional or psychological impact on the child of supervised time with the father even if such provides physical protection. Similarly there is an issue as to the impact on the mother emotionally and hence on her parenting capacity should time be ordered between X and the father.
The father raises an issue as to the veracity of the child’s statements in circumstances where they are exposed by way of Snapchat interviews with the mother and where the implication of the father’s argument is that the mother has coached or manipulated the child to make such statements and for ulterior motive.
There is, therefore, essentially a major issue of credit between the parties where the mother and the ICL, point to factors which they say compromise the credit of the father such as inconsistencies in his evidence. Where Judges in this Court assume the role of “juror” in being the determiner of facts, issues of credit between the parties often assume a critical importance in the fact–finding process, but where all too often the process is complicated by being virtually “word on word” without probative corroborative evidence in proper form and often without contemporaneous complaint but where the nature of the subject matter is such that courts should be alert to there commonly being a lack of corroboration or contemporaneous complaint. Judges do, however, have the distinct advantage of being able to see and hear each of the parties and their witnesses together with independent witnesses give evidence and be cross-examined.
In Galea & Galea[1] Kirby ACJ noted the advantages available to the trial judge including the following:
(a)Hearing the evidence in its entirety;
(b)Hearing and seeing all evidence in context, chronologically and logically advanced;
(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh against all other evidence whilst fresh;
(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony, including during the important process of cross-examination; and
(e)Observing body language, demeanour, and attitude of the witness sometimes important for interpreting communication.
[1] (1990) 19 NSWLR 263.
Whilst the consideration of credit is significant to the veracity of the evidence and of the parties and hence the fact finding process, Judges must, however, always be cognisant of the pitfalls of giving too much credence solely to demeanour and other indicators when considering the credit of the witness.
The Court should be aware that parties and witnesses are likely to be nervous and in an unfamiliar environment when giving evidence specifically, as is the case in the matter now before me, where a parent faces serious allegations of perpetrating sexual abuse on his child and where the other parent also faces serious allegations of manipulation of the child to make false allegations of the sexual abuse which in itself is an abuse of the highest type.
THE RELEVANT LAW
Section 60CA of the Act mandates that I am to have X’s best interest as my paramount consideration in determining her living and parenting arrangements.
I determine those best interests by referencing the parties’ proposals and the probative evidence to the numerous factors set out s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out in s 60B which provides as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In this matter the mother asks for an order for sole parental responsibility for X. The father argues for equal shared parental responsibility.
Section 61DA of the Act offers a presumption that it be in the best interests of children for their parents to have equal shared parental responsibility. Section 61B defines this “responsibility” as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, this normally manifests as the decision-making process for long-term or important decisions as opposed to the more mundane day-to-day decisions that parents habitually make for their children. Matters of education, religious affiliation, and medical procedure are often cited as examples of the obligations of “parental responsibility”.
The presumption at s 61DA does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. The allegations made by the mother in this case both in respect of violence to her and the sexual abuse of X are obviously relevant here. Alternatively, the presumption at s 61DA may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility.
The legislative significance of the presumption at s 61DA applying or the Court making an order for equal shared parental responsibility is that the Court is then mandated to enter into a pathway of statutory consideration in respect of the child’s best interests where, firstly, the Court is to consider whether it be both in X’s best interests and reasonably practicable for her to live in an equal time arrangement between the parents. In this matter, the father does not propose equal time but delegates primary care to the mother. Nevertheless, if the answer to either of those questions is in the negative then the Court turns to consider whether it be both in X’s best interests and reasonably practicable for her to live in an arrangement of “substantial and significant time” between her parents.
“Substantial and significant time” is defined at s 65DAA(3) of the Act as follows:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The ultimate orders that the father seeks involve time with X on weekends and weekdays and therefore fits with the definition of “substantial and significant time”. The position of the mother and the ICL is that there be no time between X and the father.
The nature of the consideration before this Court is at large in the sense that the Court is not constrained simply to a choice between the options presented by the parties. As the High Court observed in CDJ v VAJ:[2]
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G[3], Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[2] [1998] HCA 67.
[3] [1985] FLR 894 at 897-898.
Whereas the considerations at s 60CC(2) and (3) are designated as “primary” and then “additional”, there is no hierarchical importance as to questions of weight to be allocated by the Court although recent amendments to the Act at s 60CC(2A) dictate that the Court must give “greater weight” to the protective considerations at s 60CC(2)(b) over the consideration of making orders which benefit children in having meaningful relationships with parents at s 60CC(2)(a).
Whilst the Court is to reference each of the mandatory considerations at s 60CC (2), in practical terms, some factors achieve greater relevance and significance than others. Not unusually in parenting matters, there is a focus on the balance between the two primary considerations at s 60CC(2)(a) and (b) where in this case the father focuses on subsection (a) urging the Court to make orders which will benefit and resurrect a meaningful relationship between he and X in circumstances where there has been no direct relationship since about mid-2020. The mother and the ICL emphasise the protective considerations at s 60CC(2)(b) where they allege a propensity in the father for family violence and that there is an unacceptable risk that he has sexually abuse X.
THE RELEVANT PRINCIPLES IN RESPECT OF CHILD ABUSE AND UNACCEPTABLE RISK
The Full Court in Isles &Nelissen[4] has recently revisited the jurisprudence in respect of matters dealing with the unacceptable risk for a child being in the care of a particular parent. The Reasons and Orders in this matter have been held in abeyance pending a special leave application in Isles by the father which has now been refused.
[4] (2022) FLC 94-092, “Isles”.
Where the focus of consideration of the Full Court in Isles was in respect of the standard of proof when considering unacceptable risk as opposed to the objective fact finding task for the Court, the decision in Isles still helpfully provides trial judges with a comprehensive background to the jurisprudence.
Again, the crux of the arguments of the mother and the ICL is that it is the father has perpetrated sexual abuse on X and that he presents as an unacceptable risk to the child into the future.
Whilst the fundamental consideration for this Court is the best interests of the child it is trite to observe that a party making as assertion of fact has an onus to prove that allegation or assertion. That is, it is not usually for the recipient to prove his or her “innocence” where, in a practical sense, to prove a negative may be, at the very least, extremely difficult if not impossible. As such, the standard of proof in the fact-finding exercise is that set out at s140 of the Evidence Act 1995 (Cth) (‘Evidence Act') which provides as follows:
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.
Section 140 enshrines the common law requirement most frequently referenced in the decision of the High Court in Briginshaw v Briginshaw[5] where Dixon J said at [361]-[362]:
… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.
[5] [1938] HCA 34.
Suffice to say that the ramifications of the consideration and determination of the Court in matters such as that now before me are of such gravity, namely the risk of sexual abuse to a child as against the cessation of a relationship of a child with a parent, that the consideration should be made to the upper end of the standard of proof provided at s140 of the Evidence Act.
The High Court in M &M[6] considered the broad perspective of the Court’s consideration in child abuse matters in what has become the focus for trial judges’ consideration of the these complex issues and where their Honours said:
But 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 (emphasis added) in the ordinary sense of that expression … 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 … (footnotes omitted).
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 (1938) 60 CLR 336 at 362. …
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, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing 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. …
…. 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.
[6] (1988) 166 CLR 69.
It follows, therefore, that the process for the these Courts goes further than that of the Criminal Courts of simply making a finding of “guilty” or “not guilty”, but where there remains an overall consideration as to the child’s best interests within a consideration of “unacceptable risk”. The latter, importantly, it is, however, not simply a form of “default finding” but must be a separate consideration based on an independent weighing of the evidence.
As Fogarty J commented in a dissenting judgment in N & S and the Separate Representative[7]
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of “unacceptable risk”. Though the purpose behind the notion is to assist a Court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to Courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
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. In S and S, supra, Thomas J addressed the difficulty involved here. At 670 his Honour said:
Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
[7] (1996) FLC 92–655 at p 82, 1,713.
Consequently, the consideration of an unacceptable risk is an evidence-based one but, at the same time a prospective one. This is not a two-step default approach but one requiring separate and independent consideration. As the Full Court in Napier v Hepburn[8] noted:
There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[8] Napier & Hepburn (2006) FLC 93-303 at 84.
The task for the Court is further complicated by the need to consider, within the wider best interests of the child, what, if any, factors might mitigate the risk and including tools available to the Court such as supervision. In essence, the consideration is “what might turn an unacceptable risk into an acceptable risk?”
Consequently, where the fact-finding exercises, in this case as to whether there has been sexual abuse of X and family violence perpetrated by the father or fabrication and manipulation by the mother, are conducted to the standard of proof of “on the balance of probabilities” pursuant to s140 of the Evidence Act, it is to the predictive and prospective consideration of unacceptable risk that the Full Court in Isles (supra) turned its mind. As their Honour’s noted at [7] :-
M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
The Full Court in Isles in its exposition of relevant authorities noted that some superior courts had hedged towards an understanding of a differential in the standard of proof between the finding of an historical fact and a determination of unacceptable risk, but unfortunately not made a definitive statement for the assistance of trial judges.[9]
[9] Partington & Cade (No 2) (2009) FLC 93-422, Bant & Clayton (2015) 53 Fam LR 62, per Tree J at [171] to [172]; Oswald & Karrington (2016) FLC 93-726.
The Full Court in Isles (supra) then considered a recent decision of Fitzwater v Fitzwater[10] in which the Court was split in respect of the question of standard of proof of a finding of unacceptable risk. At [47] of Isles the Full Court states in respect of the separate judgment of Austin J (dissenting) in Fitzwater the following:
Further, we accept that Austin J did not say s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged; only that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
[10] (2019) 60 Fam LR 212.
The dispute was taken up by a later Full Court in Blann & Kenny[11] as follows:
83.On the question of how the existence and magnitude of a risk of future sexual abuse is assessed, the primary judge (at [22]) adopted the discussion by Austin J as the dissentient in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”).
84.The conduct of this appeal necessitates some limited consideration of Fitzwater because, not only did the primary judge cite and apply Austin J’s dissenting judgment (at [22] and [172]), the mother also relied upon the dissenting judgment in aid of her appeal. So, in effect, the primary judge and both parties sought to use the legal principles described in the dissenting judgment, though the parties were at odds over the result dictated by the synthesis of those principles with the evidence.
85.We acknowledge the majority in Fitzwater (as did the Full Court in Johnson and Page (2007) FLC 93-344 at [68] and [71]) seem to assert the question of whether or not an unacceptable risk of harm is posed to a child is determined by application of the civil standard of proof under s 140 of the Evidence Act 1995 (Cth) but, since that particular issue occupied no attention in the appeal, now is not the occasion to do anything other than record our doubts about the correctness of the proposition. That is because we doubt an asserted risk of harm is capable of characterisation as a fact in issue – as distinct from merely an issue in dispute – and the civil onus of proof only applies to the determination of facts; not forecasts or hypotheses. As the High Court of Australia has said, the approach is different in the case of possible eventualities, as predictions and assumptions about the future are not susceptible of scientific demonstration or proof (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; CDJ v VAJ at [151]).
(Emphasis added)
[11] (2021) 64 Fam LR 120.
In Fitzwater (supra) Austin J (dissenting) stated:
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
Consequently, given that the decision of the Full Court in Isles currently represents good law, their Honours have adopted the commentary of the dissenting judgement of Austin J in Fitzwater that it is only a relevant historical fact which must be proved on the balance of probabilities pursuant to s140 of the Evidence Act but where that test does not, and should not, apply to the prospective issue of “possibility” inherent in the consideration of unacceptable risk.
THE EVIDENCE
THE FATHER
The father relied upon an affidavit affirmed 8 March 2022. He gave a comprehensive history of the relationship notably giving a positive view as to his relationship with X including some block periods of overnight time [23]. He deposes to issues of child support between the parties.
The father gives a detailed response to the single expert report of Dr Q [46]–[47]. He explains conflicts in his evidence and statements to Dr Q or the family consultant as being a result of the traumatic process and the allegations that he has faced. He denies any attempt to mislead.
The father’s affidavit is generally critical of the mother with a suggestion of either inherent or empirical psychological issues.
In respect of the allegations of sexual abuse of X, the father asserts that the mother has “blatantly lied” about this and says “I have never sexually abused anyone and not my daughter [X]” [82].
The father states that these proceedings have taken a significant toll on his mental health. He consults a psychologist. He concedes to seeking assistance for prohibited substance use and attending counselling [74]–[75].
Save for his denials, the father’s trial affidavit does not deal in any detail with the allegations of sexual abuse of X leading to the issue of unacceptable risk raised by the mother and the ICL. That is, his affidavit is silent to details of bathing with X in mid-2020 such as believing the child to have an infectionand a white discharge or ‘pus’ all of which were detailed to.
I had the benefit of seeing and hearing the father give evidence and be cross-examined. He was understandably nervous but presented as articulate and intelligent. He showed a self-confidence often to the stage of entitlement or empowerment in the giving of his evidence notably by his volunteered statement that he had not (for reasons that escape me) seen fit to read some of the affidavit material. My observations were of an entitlement consistent with the mother’s evidence of a power imbalance in and perhaps corroborative of family violence during the relationship.
The father was at times confusing or contradictory in his evidence with there being a sense of “choreography” in his presentation so as to give favourable reconstructions and impressions.
In cross-examination the father confirmed that the mother had asked him not to bathe with X. He responded that he had spoken to his current wife, Ms C, and that they agreed that it was not a problem. He confirmed that he thought bathing naked with his daughter to be “natural and age-appropriate”.
The father confirmed that he attended to the cleaning of X’s genitals despite Ms C being in the house and Ms C being a health professional where he says that he thought the child had a form of infection but that he did not advise Ms C until the following day.
The father confirmed that he co-slept with X on occasions, thereby corroborating X’s statements to the mother.
In cross-examination by the ICL, the father confirmed that he had advised Ms C the next morning of X’s infection. That is not corroborated by Ms C’s affidavit.
The father in his evidence continued to deny sexual assault or rape of the mother as alleged against him.
THE MOTHER
The mother relied on her affidavit affirmed 28 January 2022. She asserts a risk “both physically and psychologically” to X if there be contact with the father. At [12] she deposes:
The thought of [X] spending time with her father makes me feel extremely anxious and sick. I don’t think that I could hand her over to him as I would be constantly terrified that he would hurt her again
The mother gives a detailed history of X’s involvement with the father [23]–[34]. She suggests only an intermittent involvement as opposed to the father’s evidence of a more consistent relationship. The mother generally asserts that she was supportive and accommodating of X’s relationship with the father until X’s revelations which the mother interprets as sexual abuse.
The mother’s affidavit at [38]–[74] gives a lengthy and detailed history of her allegations of being subjected to a serious assault, physical, sexual, verbal and coercive violence at the hands of the father.
At [75] and following the mother, provides significant detail as to X’s notifications in respect of the father. She confirms the father’s admission that he bathed with X and that he responded, “it's natural, it’s fine”.
The mother details X’s return to her in mid-2020 after a weekend with the father and that the child was reluctant to take a bath and became upset volunteering that it hurt when her father cleans her vagina stating “I don’t like it when he puts his finger in it hurts”. The mother confirms a response by consulting Dr L and reporting X’s comments to her friend Ms J and to her own mother. She also made a report to Tasmania Police.
The mother deposes:
98.Child safety services called me around the same week as the disclosures were made. They only spoke to me over the phone. They said that they had no concerns as long as [X] did not see her father. I have not spoken to them since.
At [99] and following the mother gives details of X’s behaviour at that time, as thus:
99. I had noticed some unusual behaviours in [X], including:-
(a)[X] started to wet the bed around twice a week in around [early] 2020 which was unusual for her as she didn’t have an issue with it before then. She was toilet trained and out of nappies around 18 months.
(b)[X] suddenly, in around mid 2019, didn’t want to wear underwear because her vagina was sore. I looked at her vagina in the bath and when she went toilet and I couldn’t see any chafing or redness. I tried to look in the normal course of her activities rather than do a specific examination of her.
(c)After around mid 2019, [X] always returned from [the father’s] house with no underpants on and mostly wearing a dress. I asked [the father] about this and he refused to answer me. I would pack underwear for her and I was very confused as to why [the father] refused to put them on her.
100. Since time with [the father] ceased [X] has:-
(a)stopped wetting the bed and I have not had any further issues with her not wanting to wear underpants.
(b)not had any ongoing medical issues, including vaginal infections, soreness, redness or itchiness in the vaginal region.
This all stopped around the same time that she ceased spending time with her father.
101.[X] is now very concerned about anyone seeing her body in the change room at swimming. She will not change in the changeroom (sic) and will wait for a toilet cubicle to get changed. She is Ok with me seeing her but not anyone else.
The mother was cross-examined extensively. She presented as a candid witness consistent in her evidence. My observations were of a young woman of some fragility, but forthright in her responses. She was able to explain with detail and to elaborate on her responses where necessary. I gleaned no indication of any ulterior motives or agenda in the mother’s evidence leading to at least subjective honesty.
The mother’s evidence did, however, suffer at times under cross-examination with some unsatisfactory responses such as her failure to advise Dr Q of some allegations she now puts before the Court despite specific questions from Dr Q.
MS C
Ms C is the current wife of the father. She is a health professional. She provided an affidavit affirmed 8 March 2022.
Ms C is generally positive, complimentary and supportive of the father’s relationship with X.
At [14] Ms C deposes to having overheard a conversation between the father and the mother about X having an irritation in her vaginal area. Her affidavit does not specifically corroborate the evidence of the father that he spoke to his wife the day following his claim to have cleaned X’s genitals in the bath. In cross-examination Ms C said that she was told of the genital cleansing only after the allegations had been made against her husband although she did think that she knew of X having an infection in her vaginal area.
MS J
Ms J was a witness for the mother. She affirmed an affidavit on 31 January 2022. She is a long-term friend of the mother. She confirms contemporaneous complaint by the mother as to X’s disclosures.
At [21]–[22] of her affidavit Ms J deposes:
21.In early to mid 2020 [the mother] sent me short videos of [X] via snap chat (sic) of [X] saying odd things about her dad, such as a tongue in a corner and nuts and bums. [The mother] told me that she was worried that [X] was saying weird things. [The mother] also told me that [X] told her that [the father] was taking a bath with [X] naked. One such conversation occurred when [the mother] was at my house and we were having coffee. [The mother] told me that [X] came home and said that daddy’s willy grows in the bath. We agreed that [the mother] should ask [the father] to stop. [The mother] told me that she did ask him but that he refused.
22In mid 2020 [the mother] called me on the phone and she sounded alarmed and angry. I don’t recall the exact words, but she was clear that [X] had told her that daddy was giving her a bath and that he touched her fanny. I asked [the mother] if she was sure that he wasn’t just washing her. [The mother] appeared open to the idea that could be the case but she was uncertain as [X] had said that he had put a finger in her.
MR E
Mr E is the mother’s partner. He affirmed an affidavit on 28 January 2022.
Mr E describes a positive and close relationship with X.
Mr E deposes that he has at times needed to step in during aggressive or demanding telephone conversations from the father to the mother. He corroborates the mother’s complaints of she been a victim of family violence, if only by her relating those allegations to him.
Mr E confirms the mother’s assertions that X began to wet the bed and have nightmares from when she was a little over four years of age. At [23]–[25] Mr E, deposes:
23.In early 2020 [the mother] told me that [X] had said some strange things at bedtime. [The mother] videoed this and I helped her save the videos as she didn’t know how to do it. [The mother] was concerned but didn’t know what to make of what [X] was saying.
24.I was at [the mother’s] in around [mid-2020] when [X] came back from her Dad’s. She came in the door and had ratty hair and looked grubby. She stood outside the bathroom and [the mother] asked her if she would like a bath, run for her. This was usual for when [X] returned from her father’s. [X] then screamed and said no no no like it was the worst thing in the world. [The mother] took [X] to her bedroom to calm her down. When [the mother] came out I said that it wasn’t right, as [X] usually loves baths. [The mother] spent some time calming [X] down and distracting her. Later that night [the mother] and [X] were having a quiet time before she went to sleep and I was in another room.
25.Around his time [the mother] sent me snap chats of videos of what [X] was telling her. The snap chat was along the lines that her father inserted a finger into [X]’s vagina when she was in the bath with him.
Mr E, deposes that X’s demeanour has improved since she has not been seeing her father.
MS S
Ms S affirmed an affidavit on 14 April 2022. She is the maternal grandmother. She deposes to a close relationship with her daughter spending time together once or twice a week and frequent telephone conversations. She also says that she is very close with X.
At [8] Ms S deposes that her daughter has been consistent in telling her that she wants X to spend time with her father (until mid-2020) and that she saw the mother become frustrated with the father’s ambivalence towards X.
Ms S confirms and corroborates the mother’s assertions of verbal and physical abuse perpetrated by the father.
Ms S confirms being told by the mother in early 2020 that she was concerned in respect of X bathing with the father and the father’s response that “its natural and its normal”. Ms S also confirms a telephone conversation with the mother, where she was advised that X informed her of the father cleaning “inside her vagina” and Ms S confirms her daughter’s “extreme upset and stress”.
DR B
Dr B provided an affidavit for the mother affirmed 31 January 2022.
Dr B is a clinical psychologist who has been consulted by the mother since mid-2017.
Dr B deposes to having no documented history of family violence between the mother and the father as that was not the focus of the her sessions with the mother, although she did confirm that:
[The mother] would also mention that she often felt unsafe and uncomfortable when [the father] would come to her house to collect/see [X]. [The mother] often spoken (sic) about establishing boundaries so that he did not spend time at her home or that he did not come unannounced as she did not feel safe.[12]
[12] At page 1 of Dr B’s report dated 24 January 2022.
Dr B confirms a referral from the mother’s general medical practitioner with a working diagnosis of Generalised Anxiety and confirmed features of anxiety to the mother’s presentation. She confirmed several traumatic and significant grief experiences for the mother and that she met the criteria for Post-traumatic Stress Disorder.
Dr B confirmed that the mother had been proactive in seeking assistance.
At page 2 of her report Dr B says:
In the past, [the mother] expressed concern when [X] was not in her care but recognised that [X’s] father was a part of her life and that she needed to support their relationship. To my knowledge, [the mother] did her best to allow [X] to have a good relationship with her father.
Since the disclosure she has been very fearful, anxious, and conflicted. She has often expressed confusion and distress in relation to what the future will look like and how to manage the relationship with [X’s] father.
A question was posed in writing to Dr B as to the genuineness of the mother’s concerns for X in the care of the father? She responded thus:[13]
In my opinion, [the mother] has always been very upfront and self–disclosing in relation to her feelings and coping. She has encountered many difficult situations in the past and has been able to question her own role in various circumstances and what she could have done differently. She has the capacity for self-reflection. In my opinion, her distress and fear in relation to [X’s] safety are genuine.
In the past, [the mother] has expressed reluctance and discomfort in relation to interactions with [the father] but has always put the needs of her daughter before her own and recognised the need for [X] to have contact with her father. It has only been since [X’s] disclosures that [the mother] has voiced to me that she does not feel that she is able to facilitate contact as she does not feel that it is safe.
…
During some communication from [the mother] on […] 2021 she expressed her distress and confusion regarding potential contact between [X] and her father. At the time she reported feeling overwhelmed and ‘that no one believes me or understands’. She stated at that time that she did not feel that she would be able to physically facilitate contact due to her level of distress.
[13] At pages 2 and 3 of Dr B’s report dated 24 January 2022.
In cross-examination Dr B confirmed that the mother had made no complaint of sexual violence at the hands of the father.
Dr B confirmed that the mother is responding well to therapy and is proactive in seeking assistance when she needs it and specifically in respect of the mother’s reaction to any order that X spend time with the father, she responded:
I would like to think that I could support her through this process… But we are dealing with a young woman with a troubled and traumatic history.
DETECTIVE SENIOR CONSTABLE MR T
Mr T was the investigating officer in regards to allegations relating to X. He provided an affidavit sworn 27 January 2022. He deposes to two interviews with X where no disclosures were made during the first interview in mid- 2020, but during the second interview of mid-2020 X made disclosures at the following junctures:
i. 7 minutes and 10 seconds – “sometimes my daddy touches my vagina”.
ii. 8 minutes and 8 seconds – “in bath and in bed”.
iii. 10 minutes and 15 seconds – “he keeps touching my vagina”.
Mr T confirms receiving and reviewing Snapchat messages recorded by the mother in early 2020, and two dates in mid-2020 the transcripts of which are annexed to his affidavit.
Mr T advises speaking to Dr L of K Health Centre and being advised of disclosures made by X during a consultation at the medical practice in mid-2020.
Mr T advises that the father declined to take part in a police interview and likewise Ms C declined to provide a statutory declaration.
Mr T confirms preparing a report submitted to the Director of Public Prosecutions.
Mr T’s investigation notes are annexed to his affidavit as is a statutory declaration of the 17 October 2020 of Detective Senior Constable Ms U who deposes to responding in mid-2020, to the mother’s report of “an alleged [serious assault] of a four year old child” and then meeting with the mother and X. Ms U was shown the Snapchat videos taken by the mother.
Mr T’s affidavit also annexes an email from Ms C dated mid-2020 in response to the police officers visit to her home some days earlier such email stating:
I am choosing not to make a statement at this time. However, I would like you to be aware that there is nothing I would or could say that will support the allegations that have been made. This is because I know that [the father] is innocent of any “inappropriate touching” or other sexual wrongdoing in regards to [X] (or any other person). If I was in any doubt of that being the case I would have reported him to the police myself.
Mr T gave evidence and was cross-examined.
DR L
Dr L affirmed an affidavit of 20 January 2022. She is a general medical practitioner who confirms seeing X in mid-2020 together with the mother following a telehealth, consult in mid-2020.
Dr L confirms taking a history from the mother, including that X had recently started wetting the bed at night despite being fully toilet trained and recently telling her mother that she bathed with the father consistent with X refusing to take a bath at home.
At [8] Dr L deposes to establishing a rapport with X but that the child was not willing to talk about her father or the bath and no disclosures were forthcoming.
Dr L confirms initiating contact with the mother in mid-2020 confirming that she was available to speak to X at any time on appointment. In mid- 2020 an appointment was made by the mother to again meet with X at the K Health Centre. Dr L transcribes her notes as follows:
On closer questioning, [X] says that ‘daddy puts things in my vagina in the bath’. She reports that he uses his hand and sponges to wash her vagina and that she doesn’t like it. On specific questioning, she says it hurts.
She also says, dad sometimes goes into her bed when she is sleeping but doesn’t touch her vagina there. She says that she sometimes goes into daddy’s bed at night and he sometimes touches her vagina with his hand and it hurts. She says he does not touch her vagina with his penis.
Dr L confirms that the she spoke with Mr T and Child Safety Services.
Dr L deposes that in mid-2020 the mother and X again attended her practice with the mother reporting X complaining of a medical condition over the previous two weekswith some stinging and itching after voiding. X was reluctant to talk about her symptoms. Dr L reassured the child that she would not be examining her. X made no further disclosures. In mid-2020 Dr L confirmed with the mother that X’s urine sample did not show any urinary tract infection.
Dr L gave evidence and was cross-examined. She stated that regression to incontinence in a child is a “red flag” for sexual abuse but not the only explanation.
Dr L was alerted to the father’s evidence that his immersion in a warm bath can cause a “semi-erection” and Dr L was asked for a medical opinion. She responded such would be “unusual but not unknown” for there to be a spontaneous erection in adult males in that situation.
Dr L was asked in respect of the father’s claim of a “discharge/pus/white discharge”. Dr L responded that such would be “extremely unusual”. She said that she had never seen a child of that age with pus in the vagina and if so then she was of the opinion that “medical intervention” would be required.
DR Q
Dr Q is a clinical psychologist. She provided a single expert report dated 19 October 2021. She conducted interviews with the parties and X.
Dr Q reports the father becoming visibly agitated and angry when asked about the allegations of family violence during his relationship with the mother. In respect of the current matters, he is reported as responding that the mother had fabricated the allegations to prevent him seeing X, the suggestion from the father was that the mother was motivated by a dispute in respect of his reduced child support.
Dr Q asked the father about co-sleeping with X. He admitted to it being something she was “used to and it was a comfort thing”. He spoke about cuddling her in bed and “spoon her”.
At [12] of the report, [the father] was asked about his relationship with X. He volunteered that she had a urinary tract infection but said that he was never told (by the mother). He indicated that the mother stopped contact, and went to the authorities, without first raising issues with him. At [14]–[16] Dr Q reports her interview with the father in respect of the allegations as follows:
14.I then asked [the father] more specifically about the disclosures made by [X]. He said [X] and he had a bath together, but they did not have baths together at his mum and dad’s. He said they were in a new house, and they had a bath together which was a novelty. He said [X] was happy to have a bath together. [The father] said it happened previously at [the mother’s] place and [X] could remember the good and fun times. [The father] said it is a warm bonding time where they would splash around and be looking each other in the eye. He said the shower had mould and he didn’t want her in there.
15.I asked [the father] specifically about the incident [X] reported. [The father] said they had a bath and [X] had a rash around her vagina. He said it was “red and inflamed”. [The father] said his first reaction was to clean [X] with a washer and soap. [The father] said he did that, but it hurt her and was painful. He said after the visit [X] went home and told her mum, but her mum would have interrogated her. [The father] was asked when the bath occurred to which he said not long before she went to the GP. [The father] said [X’s] mother must have questioned her about it. [The father] said honestly [X] has said things that are lies. [The father] said she would have gone home and [the mother] would have said where else has dad touched you. He said he believes [the mother] has put it in [X’s] head or said it. [The father] said he never touched [X’s] vagina other than to clean it.
16.[The father] was asked to detail more specifically how he cleaned [X’s] vagina in the bath. He said he had to separate her to clean and said her vagina was white and had pus. [The father] said maybe [X] thought his finger was inside her. [The father] was asked what medical intervention he obtained for [X] given this to which he said it sounded like [the mother] talked to a GP. I stated to [the father] that he wasn’t aware that [the mother] had attended the GP and as such he wouldn’t have been aware of her obtaining medical intervention at the time. [The father] said he and [the mother] are not talking well, and he is not sure if he said something to her or not. When asked why he did not raise the concerns given the redness, inflammation, and pus he then said that maybe pusy is too strong a word. He said it did look infected and he knew there was an issue with her not wearing underpants. He said [the mother] is a bit of a hypochondriac, has no job, and has plenty of time to take her to the doctor.
At [18] the father was asked if there was any other reason for him to touch X’s vagina or groin area. He said she needed help on the toilet as she was wiping back the front. He said she would call out for help and he would pat her vagina down to dry and wipe her bottom. He said he had been doing that since she was a baby.
The father denied that he had ever violated his daughter or made her feel uncomfortable. He said that there was no truth to him inserting a finger into her. He said in relation to the “nut” that was referred to, that the mother would call testicles “bum nuts”.
At [22] Dr Q reports:
I then asked [the father] about concerns that he experienced an erection while in the bath with [X]. He said sometimes it grows and sometimes it shrinks. He initially said he did not experience a full erection, but his penis size might have changed. When questioned further about this [the father] said there is a “possibility yes” that he had an erection while in the bath with [X]. When asked about the reason for this [the father] said that it was not sexual and was due to “air pressure”. [The father] said it was a “once off I think” and then said it was also due to the warmer water. I asked how [X] reacted to him experiencing an erection to which she (sic) said she had no reaction at all but maybe she might tell her mum things.
At [23]-[24] Dr Q questioned [the father] about to co-sleeping with X as follows:
23.[The father] was then asked about the disclosures from [X] which referred to him touching her inappropriately while in bed. [The father] said nothing happened in bed. He said they read stories and would cuddle in bed. He said they would spoon. [The father] was asked if [X] was wearing clothing at the time to which he said yeah but sometimes she would take her clothes off as the house was warm. When asked for clarification [the father] said she would take off all clothing including underwear. [The father] said he was not happy about it, and it became a big thing in the end as she didn’t want underpants on during the day either. [The father] said maybe it was from a urinary tract infection, but she would cry. [The father] said she often would wear clothing including dresses with no underwear. [The father] said he was not happy about this, but she was under control and strict supervision when out in public without underwear.
24.[The father] was then redirected back to the questions regarding [X] and him sharing a bed. I asked whether [the father] would have touched [X] in any way while they were in bed to which he said he may have rubbed her back maybe. I asked whether [the father] would have ever experienced an erection while in bed with [X] to which he said “I don’t think so” but he always had clothes on. [The father] then said if he was slightly erect [X] wouldn’t have known it.
As mentioned above, a conclusion as to prospective unacceptable risk for a child is not a “default” position taken simply by an inability to make a positive finding of fact but where such a conclusion might be available from a cumulative consideration of facts where each individually might not be capable of proof to the requisite standard.
Section 60CC(3)(a) any views expressed by X and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight which would be given to her views.
The mother says that X is reluctant to go to the father.
X is still just seven years of age and has not spent time with the father for over two years. At such an age the Court should have consideration of X’s memory retention, her understanding of inappropriate sexual behaviour, her ability to independently form fear and reluctance in respect of an adult, and her ability to rationalise her own views and preferences.
X was just four years of age when she made the disclosures.
Dr Q describes X as communicating in an animated manner and able to voice her needs and wants in a confident manner. Specifically Dr Q observed X’s demeanour to change, becoming quiet and withdrawn, when conversation turned to her father.
Despite Dr Q sympathetic questioning, X did not repeat the specifics of the disclosures she made to others but was observed to show a reluctance and at times “visible distress” when asked about her father.
Section 60CC(3)(b) the nature of X’s relationship with each of her parents and any other relevant person.
By reason of her living arrangements, and particularly for the past two years, it is clear that X’s sense of support and dependency is her mother as her primary parent. Again, given X’s age, she will inevitably understand Mr E to be the primary male role model in her home.
The nature of X’s relationship with her father is impacted by there being no contact for more than two years. Dr Q’s report suggests that X has an entirely negative understanding of her father and one grounded on “fear”. It is difficult to understand, however, whether such emotions are independent and inherent being based on some empirical fact or event or, alternatively, influenced by others and most likely the mother’s entirely negative and suspicious view of the father.
Section 60CC(3)(c) and (ca) the extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about long–term issues in relation to X; to spend time with X; to communicate with X and to fulfil obligations to maintain X.
These issues are peripheral to the more fundamental considerations for the Court but remain relevant. The father asserts that the mother acts unilaterally, such as changing X’s school, as evidence of her propensity to remove him entirely from his daughter’s life.
The mother in turn argues that the father was less than committed to a relationship with X in her early years and equally uncommitted to providing financial support for X.
Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of her parents or other relevant person with whom she has been living.
The change proposed by the father would see an introduction for X spending time with him but remaining in the primary care of the mother. This would present a significant change for X who has not seen her father now for more than two years. The proposal of the father, however, is sympathetic and slowly graduated.
The father’s proposal would allow X a relationship with her sibling in the father’s home.
A return for X spending direct time with the father would also cause consideration as to the emotional effect on X as anticipated by Dr Q at [188] as follows:
I do not believe that [X] will be exposed to sexual assault while having supervised access with [the father]. However, given the level of concern, the disclosures made, and the presentation of [X], I do believe that there is the potential for significant psychological distress including elevated anxiety and trauma–based behaviours if she is to have access with her father at the current time.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor was not raised as an issue in these proceedings.
Section 60CC(3)(f) the capacity of each of X’s parents and any other person to provide for the needs of X, including emotional and intellectual needs.
The father challenges the mother’s capacity and willingness to provide X with a relationship with him and his family unit. He says that this shows an inability or incapacity in the mother to understand X’s emotional needs or to prioritise those needs.
Similarly, the mother says that the father does not have the insight and capacity to attend to X’s emotional needs. The implication being that the father does not consider the long-term emotional impact on X of his sexualised behaviour towards her. The mother says that the father’s refusal to accede to her requests to cease bathing with X indicates the father’s lack of insight. She says that this shows an entitled attitude in the father compounded by his daily use of alcohol and cannabis.
The mother says that the father does not have the capacity to provide for the physical safety of X.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of X and of either of X’s parents, and of any other characteristics of X that the court thinks are relevant.
The mother raises issues as to the father’s practice or previous adherence to the W Religion. On the evidence before the Court, however, I am unable to make any findings contrary to the father’s capacity or attitude by reason of his Religious affiliations.
X is just seven years of age. She is, therefore, not able to rationalise any protective issues and therefore vulnerable in the sense of any risk to her physical and emotional safety.
The mother raises, in the form of tendency evidence, the father’s sexualised behaviour towards her.
Section 60CC(3)(h) if X is an Aboriginal or Torres Strait Islander.
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents.
The mother has accepted the primary responsibility for the care and support of X. The father questions her attitude in what he says is the mother’s propensity to thwart his relationship with X for her own selfish interests and in doing so has either fabricated, manipulated, or exaggerated otherwise innocent behaviour by him and/or statements by X.
The mother accuses the father of entitlement in his relationship with X and his previous ad hoc relationship with the child.
Section 60CC(3)(j) and (k) any family violence or family violence orders involving X or a member of X’s family.
The mother alleges sexual abuse of X by the father. She says that she too was a victim of sexual, physical, emotional, and coercive violence. The mother raises an incident where the father concedes “smacking” X but the parties disagree as to the level of force applied.
Section 60CC(3)(l) whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to X.
The orders the Court makes are prospective in their operation. Any change in circumstances in respect of either parent or X may bring the matter back to Court. Such changes must be, however, of sufficient materiality
FINDINGS AND CONSIDERATION
The ICL and the mother, on my understanding, do not vigorously urge the Court to make positive findings in respect of the alleged sexual abuse by the father of X. Nevertheless, I take the view that a consideration of the evidence within the context of the allegations made and attributed to X require a consideration as to whether the Court can be satisfied as to those allegations on the higher end of “on the balance of probabilities”.
If such findings are not available then the Court can turn to consider whether the evidence is such that the Court considers that there be an unacceptable risk for X in the care of the father together with the magnitude of such risk and what, if any, tools are available to mitigate that risk.
These are two distinct considerations with the latter not being simply a default consideration.
Secondly, it is the father’s case that the mother has, with some intent, fabricated, manipulated or exaggerated X’s disclosures and he therefore seeks a positive finding accordingly, being effectively that she has acted in a deliberate manner to thwart his relationship with X.
GENERAL FINDINGS
I find on the balance of probabilities that the parents now have a suspicious, non-communicative, and non-cooperative personal and parenting relationship.
I find that X’s dependent relationship is with her mother and that the child’s relationship with the father could not be attached by reason of no direct contact since mid-2020.
On the balance of probabilities I prefer the evidence of the mother as to the history of the relationship between the parents and particularly as to the power imbalance involving aspects of violence together with the father’s early ambivalence in his relationship with X.
I find in favour of the mother’s generally unchallenged evidence that she was proactive in encouraging more time for X with the father until X’s alleged disclosures.
X'S DISCLOSURE OF SEXUAL ABUSE
There is evidence which weighs towards a positive finding on the balance of probabilities that the father had sexually abused X. Those factors include:
(a)The father concedes that he has bathed naked with X and co-slept with her and continued to do so despite the mother’s protestations;
(b)The father concedes that he has had an erection during bathing with X where the mother says that she had seen the father with an erection whilst bathing with X during the course of their relationship;
(c)In mid-2020 X attended Dr L and disclosed:
(i)“daddy puts things in my vagina in the bath”;
(ii)he uses his hand and sponges to wash her vagina and that she doesn’t like it saying “it hurts”; and
(iii)that she sometimes goes into daddy’s bed at night and he sometimes touches her vagina with his hand and it hurts.
(d)In mid-2020 X made disclosures to Tasmania Police being:
(i)sometimes my daddy touches my vagina;
(ii)he just does it to clean my vagina… it just happens in my bath and in my bed… that’s all… he keeps touching my vagina.
(e)In early and mid-2020 the mother made Snapchat recordings of X where X makes disclosures consistent with penetration of her vagina by the father and does so with some particularisation and detail;
(f)The conclusion of Dr L is that X was not coached in her disclosures and where the family consultant, Ms V, was not of the view from the transcript that the Snapchat videos comprised leading questions;
(g)X’s disclosures are made with the age-appropriate child language again suggesting a lack of coaching or manipulation by an adult;
(h)X has informed those to whom she made disclosures that she has been told to keep such matters “secret”;
(i)The mother’s evidence is that X’s disclosures are contemporaneous with a change in her behaviour such as bedwetting and a reluctance to go to her father together with sexualised behaviour by X at school;
(j)Tendency evidence as to the father’s assertive sexual behaviour historically in respect of the mother;
(k)The father did not raise with, or seek assistance from, his wife Ms C, who is a health professional, following his asserted cleaning of X’s vagina due to “white discharge/pus/redness/inflammation” as later given in his explanation to Dr Q;
(l)There are inconsistencies in the evidence of the father and his wife as to when he did, if at all, inform his wife regarding his cleansing of X’s vagina;
(m)Inconsistencies with the father’s evidence/explanations given to Dr Q and to the family consultant and noted by Dr Q at [181] of her Report; and
(n)Dr L’s opinion that the father’s explanation for cleaning X’s vagina due to white discharge/pus as medically unlikely together with her scepticism as to the father’s explanation for achieving an erection whilst bathing with X.
There are, however, also factors which argue against a positive finding that the father has intentionally sexually abused X as alleged including the following:
(a)X was just four years of age when making the alleged disclosures with a consequent level of rationality;
(b)X did not make disclosures to either Dr L or Tasmania Police on her first interviews (despite Dr L saying she had established a rapport with X) but only in subsequent second interviews where there had been the opportunity for adult intervention in the meantime;
(c)The father gives a plausible (albeit not accepted by Dr L and Dr Q) explanation for cleaning X’s genital area whilst bathing with her;
(d)X’s disclosures are made firstly to the mother who has reason on her own evidence to be antagonistic towards the father;
(e)The Snapchat “interviews” of X are conducted by the mother who might not be seen as an “independent” adult and not one trained in the art of interviewing children as to such allegations and where opportunity existed for communications between the interviewing parent and the child before the interviews and between each interview;
(f)X did not report the allegations/disclosures to Dr Q despite Dr Q’s experience and unchallenged competence as a psychologist;
(g)The prima facie motives of the mother to make false allegations and/or opportunistically manipulate or embellish otherwise innocent statements of X including issues between the parents in respect of the father’s reduced child support obligation; each parent having entered into a new relationship with emotional effect on the mother and especially given what she suggests was the father’s lack of commitment to the relationship with her including his infidelities taken within the context of the mother’s history of depression and anxiety; and
(h)The possibility of motivation in the mother to thwart X’s relationship with the father due to the mother’s disapproval of the father’s religious practice as part of the W Religion.
Given the relatively high standard and onus of proof in respect of these issues pursuant to s 140 of the Evidence Act, I cannot be satisfied on the balance of probabilities that the father has sexually assaulted X in the particulars alleged.
Secondly, on a consideration of the evidence above and where there are evidentiary indicators both towards and against sexual abuse of the child, I cannot be satisfied on the balance of probabilities that the mother has intentionally fabricated the allegations, or alternatively opportunistically manipulated X’s otherwise innocent and plausible statements to her.
I turn to consider the issue of unacceptable risk for X in the care of the father. On consideration, I find that there is such an unacceptable risk and in doing so I reference the factors set out under [282] herein. Specifically, X has made disclosures to three separate people. Those disclosures are highly particularised. The evidence is that the disclosures are made in age-appropriate language. The evidence of Dr L and Ms V is contrary to assertions that X has been coached or manipulated in her disclosures. The father’s explanation for achieving an erection whilst bathing with X is not supported by Dr L’s medical opinion. Equally, Dr L thinks the father’s assertion of X suffering genital inflammation/pus/white discharge is medically highly unlikely and where there is no corroborative evidence of the father’s assertions and where I find that he probably did not immediately advise his wife Ms C, a health professional, of these asserted observations of X and perhaps not at all. It follows that I am comfortably persuaded on the balance of probabilities that the father represents a risk of sexual abuse for X and that such a risk is prima facie unacceptable.
The question for the Court then becomes whether such an unacceptable risk can be mitigated to “acceptable” or whether protections and constraints can be provided to alleviate the risk? The obvious tool available is one of supervision. This would allow a continuation (or re-introduction) of a father/daughter relationship during short but frequent and regular monitored visits. Indeed the father volunteered the possibility of a graduated regime which included a period of supervision.
There are, however, contrary indicators towards supervision being in the best interests of X. Firstly, there has been no relationship between X and the father since mid-2020 when she was just four years of age. The Court must therefore consider any manifest benefit to the child in such a limited regime and one constrained and defined by the presence of another person where there is no current relationship and unlikely to be any independent recall by X of her previous relationship with the father. Secondly, Dr Q recognises an innate fear and reluctance in X where Dr Q is an expert engaged to assist the Court in its determination by her experience and expertise. Whilst I am not bound by Dr Q’s opinions and recommendations, I am equally able to be assisted by and adopt her opinions. Again, Dr Q withstood cross-examination and was an impressive professional who was firmly of the view that X’s emotional health would be compromised by even supervised time. I accept her evidence and conclusions. I am not persuaded therefore that supervised time is in X’s best interests.
The Court considered whether time for X in the presence of the father’s wife, Ms C, would both mitigate the risk and be in X’s best interests. Certainly it would allow for a relationship for X with both her father and her sibling in her father’s home. Discrete injunctive orders such as restraining the father from bathing with X could be added. Nevertheless, on consideration I am not persuaded that these conditions and restraints would suffice to protect X from what is an unacceptable risk in the care of her father. Firstly, the father has shown little regard for the mother’s previous requests that he not bathe with X. Secondly, the father’s wife, Ms C, does not acknowledge any possibility of sexual abuse of X by the father. She completely supports the father and is dismissive of the allegations and the evidence supporting those allegations and could not then, in my view, be relied upon to objectively monitor or report.
The ambiguity in the evidence of the father and his wife, Ms C, as to whether the father advised Ms C of what he says was an inflamed/pus genital area continues to concern the Court. Further, the father’s general sense of entitlement observed in the witness box and as identified, for example, by his failure to even read much of the affidavit material in this matter causes concerns as to his insight and understanding of the Court process and the concerns raised in respect of his daughter and hence his willingness to comply with court orders with which he might not agree.
In circumstances where the Act itself at Part VII emphasises the right of children to enjoy a meaningful relationship with both parents, but where that same Act emphasises and mandates judges to give greater weight to the protective concerns, the Court cannot, in the face of the evidence and findings herein, make any orders which permit direct contact or communication between the father and X.
X is just seven years of age and much of the above is based on her inability to self-protect at this age. She has maintained some understanding of her father, if only by her reluctance to spend time with him. Where circumstances might change, I am of the view that X’s identity as her father’s daughter can be maintained at this stage by limited gift and card communications with an obligation on the mother to provide the same to X, but also to allow the mother to scrutinise any such communications as to proper content.
I anticipate such communications be limited to birthday and Christmas unless agreed otherwise between the parents. I accept that this “connection” may cause some discomfort to the mother as identified by the experts in this matter but where she maintains that she has previously proactively encouraged a relationship between X and the father, on balance I think the benefits of maintaining a connection outweigh the detriment.
Similarly I am not persuaded that a change of surname is in X’s best interests. Put simply, without direct contact with her father or paternal family, her identity with that family is likely to be obliterated. The channels should remain open for X herself to pursue these relationships when she is older and of course then more able to self-protect and have reached a state of emotional maturity when she is able to rationalise her own views and preferences.
I see no detriment, inconvenience, or embarrassment for X where she continues to carry her father’s surname at her school and where her surname differs to her mother and where empirical evidence suggests that it is not uncommon in schools for children and a parent to carry a different surname. In any event, there is currently another adult occupant of X’s home whom himself carries a surname different to her mother. Should, however, X reach an age and level of rationality and independence of thought where she herself prefers another surname then this issue might be revisited. Until then, however, I am not persuaded by the mother’s application.
Finally, if X is to live with the mother and have no contact with father and where the relationship between the parents is non-communicative, non-cooperative, and suspicious, I am satisfied that the presumption of equal shared parental responsibility and s 61DA of the Act is rebutted (if not rendered inapplicable by reasons of family violence). Consequently, the mother should have sole parental responsibility for X provided she keep the father advised of any serious medical issues in respect of X.
I certify that the preceding two hundred and ninety-six (296) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 December 2022
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