GAHEN & GAHEN

[2013] FamCA 730

FAMILY COURT OF AUSTRALIA

GAHEN & GAHEN  [2013] FamCA 730

FAMILY LAW – CHILDREN – parental responsibility – where the presumption of equal shared parental responsibility applies – where it is agreed that the child shall live with the mother – child to graduate to spending substantial and significant time with the father over the next year – where the mother’s allegations of sexual abuse by the father and the father’s partner’s father are not substantiated – where there is no unacceptable risk for the child to spend unsupervised time with the father.

FAMILY LAW – INJUNCTIONS – father restrained from allowing the child to come

into contact with his partner’s father for an initial period of approximately three months while the child adapts to spending greater time with the father – child not to be known by any surname other than the father’s surname – parties to ensure child uses the terms “Dad” and “Mum” to address only the biological parents – where the child was confused by the mother’s new marriage, his surname, and whom he should address as “Dad”, and the mother had failed to abate the child’s confusion.

Evidence Act (1995) (Cth) s140
Family Law Act (1975) (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65LA, 65LB

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
Johnson v Page (2007) FLC 93-344

APPLICANT: Ms Gahen

RESPONDENT: Mr Gahen

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1953 of 2010

DATE DELIVERED: 20 September 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 26, 27, 28 & 29 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Tregilgas

SOLICITOR FOR THE APPLICANT: Hills Solicitors

COUNSEL FOR THE RESPONDENT: Mr M Graham

SOLICITOR FOR THE RESPONDENT: Powe & White Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K O'Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former orders relating to the child N Gahen, born … 2008, (“the child”) are discharged. 

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the mother.

4. Each party shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)Up to and including Saturday 21 December 2013, from 9.00 am until 5.00 pm each Saturday.

   (b)From 22 December 2013 up to and including Sunday 6 April 2014:

   (i)From 3.00 pm on Christmas Day until 5.00 pm on Boxing Day;

   (ii)From 9.00 am until 5.00 pm on Saturday 28 December 2013;

   (iii)From 9.00 am on Saturday until 5.00 pm on Sunday each alternate weekend, commencing on Saturday 4 January 2014; and

   (iv)From 3.00 pm on Friday 17 January 2014 until 9.00 am on Saturday 18 January 2014 (which period immediately precedes and aggregates with the child’s visit with the father commencing at 9.00 am on Saturday 18 January 2014, pursuant to Order 4(b)(iii) hereof).

   (c)From 7 April 2014 up to and including Sunday 22 June 2014, from the conclusion of school or 3.00 pm on Friday (whichever is the later) until 5.00 pm on Sunday each alternate weekend, commencing on the second Friday after the last visit pursuant to Order 4(b)(iii) hereof.

   (d)From 23 June 2014 up to and including Monday 15 September 2014, from the conclusion of school or 3.00 pm on Friday (whichever is the later) until the commencement of school or 8.30 am on Monday (whichever is the earlier) each alternate week, commencing on the second Friday after the last visit pursuant to Order 4(c) hereof.

   (e)From 16 September 2014 onwards:

   (i)During school terms, each alternate weekend from the conclusion of school or 3.00 pm on Friday (whichever is the later) until the commencement of school or 8.30 am on Monday (whichever is the earlier), commencing on the first Friday of each term.

   (ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.

   (iii)During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

5. For the purposes of implementation of Order 4(e) hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is 12.00 noon on the day halfway between those first and last days.

6. Orders 4(c), 4(d), and 4(e) hereof are suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.

(b)From 6.00 pm on Saturday on each Mother’s Day and Father’s Day weekends, after which time the child shall live with the mother on the Mother’s Day weekend and spend time with the father on the Father’s Day weekend.

1. Unless otherwise agreed, for the purposes of implementing Orders 3, 4 and 6 hereof, the parties shall respectively ensure the child’s:

   (a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the McDonalds Restaurant at ...

2. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The father each Wednesday when the child is living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

   (b)The mother each Wednesday when the child is spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

   (c)The parent with whom he is not then staying, on the child’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

3. The mother shall:

   (a)Forthwith enrol herself to commence a post-separation parenting program approved by the Family Consultant, and

   (b)Thereafter participate in and complete the program by 31 March 2014, and

   (c)Provide to the father written evidence of her satisfactory completion of the program forthwith upon its completion.

4. The Independent Children’s Lawyer shall forthwith solicit from the Family Consultant the name of any post-separation parenting program she considers it would be desirable for the parties to attend jointly, either with or without the child, and notify the parties of the name of the program and the organisation which conducts the program.

5. The parties shall, forthwith upon any notification to them by the Independent Children’s Lawyer pursuant to Order 10 hereof:

   (a)       Enrol themselves to commence and complete the program, and

   (b)Ensure the child’s involvement in the program if recommended by the program convenor.

6. The father is restrained from causing or allowing the child to be in the physical presence of, or to communicate with, Mr R prior to Christmas Day 2013.

7. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8. Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

9. The parties are restrained from causing or permitting the child to be known by any surname other than “Gahen”.

10. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Leave is granted to the parties to furnish a sealed copy of these orders to the principal of any school attended by the child.

13. Leave is granted to the parties to furnish to any therapist engaged by them to provide therapy to the child or themselves, either collectively or individually, a sealed copy of these orders and the reasons published for such orders.

14. In the event of any party notifying either the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    (a)A sealed copy of these orders;

    (b)A copy of the reasons for judgment; and

    (c)A copy of the Magellan Report dated 11 April 2013.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or compliance with Order 10 hereof, whichever is the latter.

17. Costs are reserved for 28 days.

18. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1953 of 2010

Ms Gahen

Applicant

And

Mr Gahen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother alleged the only child of the parties was sexually abused, or alternatively, remains at unacceptable risk of sexual abuse when in the care of the father.

2. The mother’s allegations of the child’s abuse, or the risk thereof, relied upon the veracity of statements made by the child, in whom the mother has complete confidence, despite him still being only five years of age. Unfortunately, the mother relied only selectively upon the child’s statements, which were disturbingly inconsistent. The child variously made statements which both inculpated the father and another male in, and exculpated them from, sexual impropriety.

3. The mother was unable to satisfactorily explain why only the child’s incriminating statements and not his exculpatory statements should be accepted as truthful and accurate. Of course, there was no logically plausible answer for her to give. The simple truth is the child is an unreliable historian.

4. These reasons explain why the mother’s fears about the child’s sexual abuse, or the risk thereof, are not vindicated and why orders must be made to ensure restoration of the child’s relationship with the father.

History

1. The parties commenced their relationship in September 2003, married in July 2005, separated in September 2009, and were divorced in November 2010.

2. Their only child was born in  early 2008 and is now five years of age.

3. Following the parties’ separation, the child lived with the mother and spent time during the day with the father. The child began spending alternate weekends with the father from about mid 2010; not immediately following separation as the Family Consultant believed.[1] The parties found it unnecessary to be bound by court orders until sometime later.

   [1] Family Report, para 7

4. Proceedings were eventually started between the parties and concluded with final orders being made with their consent on 23 March 2011. The orders provided for the parties to share parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father each alternate weekend and on some specified special occasions. The parties expressly noted that they intended renegotiating the amount of time spent by the child with the father once the child attained five years of age.

5. Those orders were implemented unremarkably until the mother formed the conclusion in about early November 2012 that the child had been sexually abused by either the father, the father’s partner’s father (Mr R), or both of them.[2]

   [2] Father’s affidavit, para 14

6. The mother therefore unilaterally decided to sever the child’s interaction with the father, which decision she communicated to the father by email on 9 November 2012.[3]

   [3] Father’s affidavit, para 29, Annexure B

7. The mother then commenced these proceedings on 13 December 2012 seeking to discharge the orders made in March 2011.

8. Interim consent orders were made between the parties on 6 February 2013, which suspended some of the orders made in March 2011 and instead made provision for the child to spend supervised time with the father at a nominated contact centre for two hours each Saturday. The child’s first supervised visit with the father occurred on 16 February 2013 and recurred every Saturday thereafter until trial.

9. Because of the nature of the allegations made by the mother, the proceedings were transferred to this Court by the Federal Magistrates Court (as the Federal Circuit Court then was) in February 2013 and subsequently entered into the Court’s Magellan protocol. The proceedings were therefore afforded an expedited hearing date in August 2013.

Proposal and primary evidence of mother

1. The mother sought the orders set out within her Amended Initiating Application filed on 26 July 2013. She proposed that the child live with her and that she have sole parental responsibility for him. She proposed an arrangement of indefinite duration in which the child would only see the father for two hours each alternate Saturday under supervised conditions at a contact centre.

2. The mother relied upon:

   (a)Her affidavit filed on 16 August 2013;

   (b)The affidavit of her partner, Mr M, filed on 16 August 2013; and

   (c)The affidavit of the maternal grandmother, Ms L, filed on 16 August 2013.

Proposal and primary evidence of father

1. The father proposed the orders set out within a minute of orders he tendered.[4]

   [4] Exhibit F1

2. Notwithstanding the mother’s adherence to her belief in his sexual abuse of the child, the father contended the child should continue living with the mother. Presumably he did so because he accepted the mother would nonetheless accept any finding of the Court rejecting her allegations and comply with any orders requiring the child to spend unsupervised time with him.

3. The mother told the Family Consultant she would be guided by the Court in relation to the child’s interaction with the father.[5] She also said in cross-examination she would do everything in her power to promote the child’s relationship with the father and comply with any orders made by the Court, even though she may disagree with them. Her husband affirmed that commitment. There was no reason not to accept them at their word, though the orders will certainly be a test of their resolve.

   [5] Family Report, para 12

4. The father proposed that the child spend “substantial and significant time” (s 65DAA(3)) with him after the passage of the next few months, to be achieved by rapidly accelerating the amount of time the child spends with him in the intervening period.

5. The father relied upon:

   (a)His affidavit filed on 16 August 2013; and

   (b)The affidavit of Mr R (“Mr R”) filed on 16 August 2013.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not propose orders until the evidence closed and final submissions were made. A minute of orders was tendered.[6]

   [6] Exhibit ICL8

2. The Independent Children’s Lawyer contended the child was not at risk of sexual abuse, either with the father or Mr R, and therefore proposed orders generally consistent with those proposed by the father. However, the rate of acceleration of the regime under which the child should spend time with the father was slower than the rate urged by the father.

3. The Independent Children’s Lawyer did not adduce any evidence, other than by way of tendered exhibits.

Additional evidence

1. The parties and Independent Children’s Lawyer also relied upon:

   (a)The Magellan Report, dated 11 April 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Department”); and

   (b)The Family Report, dated 28 June 2013, prepared by the Family Consultant.

2. The Family Consultant was cross-examined.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

1. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

2. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

3. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. There was no dispute about the child’s derivation of benefit from the meaningful relationships he enjoys with both parties.

2. The mother has been the child’s primary carer. It is uncontroversial the child should remain resident with her.

3. The child’s relationship with the father is nonetheless important. The depth of their relationship was evident to the Family Consultant, who observed the child run to the father, jump into his arms, and hug him tightly.[7] On their subsequent separation the child affectionately hugged and kissed the father and they calculated how long it would be before they were re-united.[8]

   [7] Family Report, para 78

   [8] Family Report, para 84

4. The mother baulked at conceding the strength of the child’s relationship with the father, but did concede the child enjoys spending time with him,[9] which she acknowledged was also evident from the records of the contact centre.

   [9] Family Report, para 31

5. When final parenting orders were last made between the parties in March 2011 the mother then acknowledged it was in the child’s best interests to spend substantial and significant time with the father. The only reason she came to a different conclusion in November 2012 was her fear the child was no longer safe when in the care of the father. The evidence about the child’s alleged sexual abuse, or the risk thereof, consequently assumed principal significance in the proceedings.

Section 60CC(2)(b)

1. The mother’s fear about the child’s sexual abuse was premised upon a number of considerations. In her affidavit, the mother explained how her belief was informed by the statements made by the child to various people over a period of months, her opinion about the father’s “addiction to pornography”, the nature of the child’s behaviour around the father, and the physiological complaints suffered by the child in the past.[10]

   [10] Mother’s affidavit, paras 36.9, 68.5, 69.2, 69.4, 71, 72

2. Each of those factors can be logically and benignly explained.

3. The mother deposed to her suspicions of the child’s sexual abuse from as early as several years ago.[11] She made complaints of her suspicion to doctors in 2010, but it was not until January 2011 that her complaints about the possibility of such abuse were reported to the Department.[12] The mother denied she personally made the reports to the Department so, inferentially, the reports were made by the doctors to whom the mother took the child in reliance upon the complaints made to them by the mother.

   [11] Mother’s affidavit, para 69.3

   [12] Magellan Report, pages 1, 2; Exhibit ICL4

4. The mother’s suspicion of sexual abuse was initially stimulated by the child’s sufferance of several physiological complaints, such as urinary tract infections, the presence of blood in his faeces, and rashes on his buttocks. The child was subjected to extensive medical examination about those complaints in late 2010 and early 2011.[13] The mother was informed by the doctors that the child’s urinary tract infections were credibly caused by his “long tight” foreskin[14] and that the blood in his faeces was likely attributable to him retaining and having trouble passing “very bulky stools”, which condition she was advised to treat with laxative medication and a different diet.[15] As for the buttock rashes, the child was still wearing night nappies until January 2013, when he attained five years of age,[16] so nappy rash was an obvious explanation. The father was aware of those physical afflictions and was rebuffed by the mother when he tried to discuss them with her.[17]

   [13] Mother’s affidavit, para 11; Family Report, para 107

   [14] Exhibit ICL3

   [15] Exhibit ICL6

   [16] Affidavit of Mr M, para 25.1

   [17] Father’s affidavit, paras 43-45

5. In cross-examination, the mother acknowledged receiving such explanations from the doctors, but she rejected them and maintained her belief that those conditions still supported her belief in the child’s sexual abuse. The mother’s belief is consequently unreasonable, even if honestly held.

6. The mother also said her suspicion of the child’s sexual abuse did not rise above suspicion and transform into an actual belief until the child’s disclosures were made much later in late 2012. It seems, therefore, she retrospectively imbues the child’s medical conditions in 2010 and 2011 with greater significance in the knowledge of subsequent events.

7. The mother consented to final parenting orders in March 2011 that provided for the child to spend substantial and significant unsupervised time with the father. Whatever else may be said critically about the mother, she is certainly intelligent, caring and vigilant about the child’s best interests. She would surely not have agreed to such orders unless she was then satisfied the child was not at risk of harm in the care of the father. I reject the mother’s evidence to the effect that she was taking a chance on his safety.[18]

   [18] Mother’s affidavit, para 16

8. The mother’s concern about the father’s predilection to view pornography is not probative of the child’s sexual abuse. Although the mother referred to his predilection as an “addiction”, her bare opinion carries no weight. There is no evidence about the frequency or duration of the father’s use of pornography. Nor is there any evidence about the nature of the pornography he viewed. It cannot be correct that simply because the father viewed pornography he is predisposed to sexually abuse his own infant child. The superficiality of such an argument is manifest merely from its statement. In any event, there is unchallenged evidence that the parties viewed pornography together whilst they cohabited.[19] In such circumstances it is rank hypocrisy for the mother to criticise the father for his use of pornography and link it to her allegations of his sexual abuse of the child.

   [19] Family Report, paras 49-50

9. The mother also alleged her concern about the child’s behaviour at or around the times of his interaction with the father. She adduced evidence of the child’s unsettled behaviour from late 2010.[20] At about that time, the mother and child were referred by their general practitioner to the K Children’s Health Service,[21] which resulted in their participation in the “First Steps Parenting” course. In cross-examination the mother conceded she learned during the course that the child’s unsettled behaviour was not uncommon for young children who have experienced parental separation. That concession had to be extracted from the mother in reliance upon documents produced on subpoena. Why she failed to volunteer the information and why she contradictorily relied upon the child’s behaviour as a reason vindicating her belief in the child’s sexual abuse remains unexplained.

   [20] Mother’s affidavit, para 12

   [21] Mother’s affidavit, para 10.1

10. In August 2012 the mother consulted a psychologist with the child in an attempt to deal with the child’s anxiety associated with his transition between the parties’ households.[22] The mother admitted she was told by the psychologist the child was suffering from “transition anxiety”. There can be no doubt the mother is anxious about the child’s interaction with the father. Nor can there be any real doubt the child is alive to the mother’s anxiety, which in turn is liable to cause him to be anxious about visits with the father. The mother knows she is anxious because she candidly conceded it. She also conceded she understood how her anxiety could possibly arouse anxiety in the child. There is no reasonable basis for inference that the child’s agitation at or about times of his transition to or from the father is causally related to his sexual abuse. To suggest otherwise is bare conjecture.

    [22] Mother’s affidavit, para 24

11. The allegations of sexual abuse therefore really hinge upon the veracity of the statements the child made to the mother, her husband, the maternal grandmother, doctors, and investigators attached to the NSW Joint Investigation Response Team (“JIRT”) in the period between October 2012 and February 2013.

12. On 29 October 2012, the mother took the child to a doctor for examination and treatment of his inflamed anus and buttocks.[23] The appointment did not take place on 30 October 2012, as the mother erroneously deposed.[24] The error as to the date assumes some importance in the chronology of events.

    [23] Exhibit F4

    [24] Mother’s affidavit, para 33

13. The doctor’s notes record the mother complained at the appointment of her concern the child was sexually abused whilst at the father’s home, but the child was “unable to explain anything” to the doctor.[25] Even if the child was not privy to the mother’s conversation with the doctor about her fear of his sexual abuse, he was quizzed directly about the cause of his buttock rash and anal inflammation and an anal swab was taken from him. His bottom and anus was therefore again the subject of examination and his interrogation, just as they had been before in 2010 and 2011.

    [25] Exhibit F4

14. Later that same night, the child said to the mother:[26]

    Dad puts his bottom in my face with no pants.

    [26] Mother’s affidavit, para 32; Affidavit of Mr M, para 20

15. The child must have known the mother took such a puzzling allegation seriously because she asked him if he was sure. The mother’s question required the child to either affirm the allegation or to recant. Perhaps unsurprisingly, the child chose to affirm rather than recant. Having made such a statement that he knew the mother took seriously he would have risked censure by recanting.

16. Of course, it is possible the child’s allegation about the father was truthful and accurate, but the very nature of the allegation suggested it was improbable. How could the father logically derive sexual gratification from exposing his naked buttocks to the child? Despite the attitude of alarm the mother displayed to the child at the time, she admitted in cross-examination his disclosure was not logical, did not mean anything to her, and so she took it no further with the authorities at that time.

17. Nevertheless, the mother’s impulsive reaction to the revelation, which clearly communicated her serious entertainment of the prospect of its truth, set the tone for all future disclosures by the child. The child was thereby empowered to make statements about the father and events in his household because he knew they would be taken seriously. The mother, already fearing the child’s sexual abuse, was a willing and eager audience.

18. On 5 November 2012 the mother took the child back to the doctor, at which time she was informed the child’s anal swab from the week before returned a negative result. Nonetheless, the mother again explained to the doctor her suspicions about the father’s sexual assault of the child. The doctor recorded that the child was “unable to explain anything”, suggesting the child was again quizzed by the doctor about the issue.[27]

    [27] Mother’s affidavit, Annexure E (page 20)

19. Later that same night, the child acted in a way that displeased the mother. While still clothed, the child “pulled his bottom cheeks apart, stuck his finger in between his bottom cheeks…and farted”.[28] The mother chastised him. Even though the mother then asked the child where he had seen such behaviour, implying her expectation the child was copying behaviour he had observed, she denied in cross-examination he could have seen such behaviour from other children with whom he associated at pre-school or that he was simply showing-off. They were, however, relatively obvious and plausible explanations.

    [28] Mother’s affidavit, para 35

20. In cross-examination the mother said that, in aggregation, the inflamed anus and buttocks from which the child had suffered the week before, the revelation the week before of the father exposing his naked buttocks to the child, and the child’s risqué behaviour that night led her to the conclusion that the child was being sexually abused. Her mere suspicions, dating back to 2010, were then transformed into a firm belief.[29] Despite the fervour of the mother’s belief, objectively considered, the basis for it was extremely tenuous.

    [29] Family Report, para 24

21. Later that same evening, the mother decided to interrogate the child further about her belief, intending to elicit more information. She asked the child:[30]

    Does someone say to you “Don’t tell your Mum”?

    [30] Mother’s affidavit, para 36

22. That leading question induced a number of further disclosures by the child, who in all likelihood was attuned to the mother’s concern, because the mother took the child to her husband for the express purpose of his corroboration of the child’s disclosures. The child reported to the mother and her husband:[31]

    [Mr [R]] sticks his finger in my bottom.

    [Mr [R]] gives me sloppy kisses on my cheek.

    [Mr [R]] plays with his doodle.

    I sometimes wake up and [Mr [R]] is in my bed.

    [31] Mother’s affidavit, para 36; Affidavit of Mr M, para 21

23. It is common ground the child refers to a penis as a “doodle”.

24. The child also demonstrated by pointing to his “teddy bear’s bottom”.

25. The mother deposed that the child appeared to be “quite anxious” and complained of being ill as he made such disclosures. Although not expressly articulated, inferentially, the mother thought those facts tended to prove the truth of the child’s revelations, for otherwise there was no point to the evidence. Her inference could be correct, but that inference is no stronger than the alternate countervailing inference that the child was anxious about making untruthful, outlandish allegations. He knows it is a “bad thing” to tell lies, because he subsequently told JIRT officers of that belief. The Family Consultant explained in evidence how the child’s anxiety could just as easily be attributable to his uneasiness about lying.

26. As a consequence of those disclosures on the evening of 5 November 2012, the mother took the child back to the doctors the next day, being 6 November 2012.[32]

    [32] Mother’s affidavit, para 37

27. The child had been questioned over the mother’s concern about his possible sexual abuse at the prior medical appointments on 29 October and 5 November 2012, although the evidence is imprecise about just how it occurred. Even if, as the mother asserted, she discussed her concerns of sexual abuse with the doctor privately and in the absence of the child at those prior appointments, the child probably knew that topic was the reason for the consultation on 6 November 2012. According to the mother, the appointment had no other medical purpose.

28. In the presence of both the mother and the doctor, the child made similar disclosures to those he had made the night before. The doctor noted that, in a “long story”, the child reported:[33]

    [Mr [R]] frequently plays tricks at him (sic)

    Some time [Mr [R]] tries to stick finger in his anus (sic)

    He was surprised to see [Mr [R]] in his room stairing at him with eyes open while [he] was in his bed (sic)

    He got awake – as he felt that some body is sticking finger in his anus and that was [Mr [R]] (sic)

    He asked [Mr [R]] why he was in his room. [Mr [R]] starts looking at him and told him not to tell mum about this incidence (sic)

    [33] Mother’s affidavit, paras 37, 39, Annexure E (page 19)

29. The doctor also noted that the child reported the father was in the lounge room while such events between him and Mr R occurred.

30. The doctor, consonantly with her obligation to do so, reported the allegations to the Department.

31. However, the doctor’s report to the Department was false in two material respects, for which there is no satisfactory explanation.

32. Firstly, it was reported that Mr R masturbated in the child’s presence, which action the child had allegedly demonstrated.[34] According to the evidence, the child had not said or done any such thing in the presence of either the mother, her husband, or the doctor. The child’s report about Mr R’s genitals was confined to Mr R “playing” with his penis, without any elaboration as to whether the “play” was prolonged manipulation or merely transitory adjustment, whether it occurred above or beneath his clothing, or whether it occurred only once or more often. Such detail has clear implications for the propriety of Mr R’s alleged conduct.

    [34] Magellan Report, para 6

33. Secondly, it was reported that the father inserted his finger into the child’s anus in the lounge room of the father’s home.[35] Although there is some ambiguity in the doctor’s notes relating to the child playing some form of game with the father in the lounge room,[36] there was no overt disclosure by the child of such abuse by the father. The mother certainly did not hear the child make such a complaint about the father during that medical appointment.[37]

    [35] Magellan Report, para 7

    [36] Mother’s affidavit, Annexure E (page 19)

    [37] Mother’s affidavit, para 37

34. To that point in time, the gravamen of the child’s allegations were confined to:

    (a)The father exposing his naked buttocks to the child, by placing them in proximity to the child’s face;

    (b)Mr R digitally penetrating the child’s anus, or at least attempting to do so; and

    (c)Mr R playing with his penis in the child’s presence.

35. The unexplained transformation of the allegations about the nature of the sexual impropriety with the child is simply a harbinger of further disquieting incongruence.

36. In any event, as a consequence of the formation of her belief about the child’s sexual assault, the mother unilaterally decided to sever the child’s interaction with the father.

37. Despite the absence of any interaction between the child and either the father or Mr R for several months after late October 2012, the child’s subsequent disclosures about the father and Mr R became progressively more florid. Importantly, they also became inconsistent and bizarre.

38. Following the doctor’s mandatory report to the Department on 6 November 2012, the child was interviewed by JIRT officers on 8 November 2012. The Magellan Report contained a summary of the interview, but the best evidence of the interview is the audio-visual recording of it, which was tendered in evidence.[38]

    [38] Exhibit M1

39. The contents of the interview were revealing in a number of respects.

40. The child’s demeanour was not consistent with his revelations of sexual abuse. The interview lasted for about 47 minutes, throughout which the child intermittently reclined on the lounge, bounced on the lounge, walked inquiringly around the room, yawned, hummed, whistled, laughed, examined his navel, fixed his footwear, played with his hat, and digressed to discuss unrelated issues such as the pencils on the table, a chipmunk movie and flatulence. The Family Consultant accurately described the child’s behaviour during the interview as “bored”. The mother’s description of the child’s agitated and insecure demeanour immediately before and after the interview[39] is not how the child generally appeared during the interview.

    [39] Mother’s affidavit, para 40.2

41. When asked why he thought he was being interviewed the child replied that he was there to discuss a “silly story” about some family members, identified as the father and Mr R, who had done “bad things” to him. Notwithstanding his identification of the father as a perpetrator, the child thereafter did not make a single allegation against the father. Quite the contrary. He expressly denied any assault upon him by the father and told the interviewer the father “takes good care of [him]”.

1. The child told the interviewer he knew it was a “bad thing” to tell lies. He also said sometimes he thought he was “telling lies” but the mother re-assured him he was not. The child was therefore conscious of his propensity to lie and the mother’s propensity to believe what he says.

2. The child made three separate allegations against Mr R during the JIRT interview: that Mr R digitally penetrated the child’s anus, that Mr R touched the child’s penis, and that Mr R exposed his own penis to the child (although the child described those allegations using different words).

3. The latter two allegations can be discredited immediately. When asked directly towards the end of the interview about the truth of the allegations, the child admitted Mr R had never touched his penis and he also admitted he had never seen Mr R’s penis. The child therefore disavowed the allegations almost as soon as he made them. It is consequently certain the child gave false information. Either he falsely alleged the abuse or he falsely retracted the allegations. Axiomatically, his statements are prone to be unreliable.

4. The child did not ever retract the other allegation about his anus being digitally penetrated by Mr R, but the child’s discussion of it was perplexing and inherently unreliable. He initially described that allegation as “quite silly”, but then went on to explain that it happened only once when he was in bed. He said he woke up and Mr R’s finger was in his bottom. However, he also said he was fully clothed and Mr R was touching him on the outside of his clothing. Self-evidently, it was virtually impossible for his anus to be penetrated if he was touched outside his clothing. Mr R was also fully clothed. The child could not say whether he was beneath or above the bed covers and he could not remember whether it was day or night. The child obfuscated, repeatedly saying that it was “tricky” and “hard” to explain the event. It was only at that point the child demonstrated some mild agitation.

5. When shown a body chart and asked about kissing, the child denied he ever kissed Mr R. While susceptible to ambiguity, his response was potentially contradictory to the allegation he made to the mother only a few days before when he told her Mr R gave him “sloppy kisses”.[40]

   [40] Mother’s affidavit, para 36.2

6. The inconsistency of the child’s descriptions could not fairly be attributable to any degree of illiteracy because it was common ground the child is intelligent and articulate for his age. He has a broad vocabulary and competent language skills. He had no compunction telling the interviewer he was “exhausted” sitting and talking with her.

7. Importantly, when discussing the allegation of Mr R inserting his finger into the child’s anus, the child revealed the mother’s husband had informed him he would “break the bad guy’s fingers off”. Assuming that was a truthful statement by the child, the only inference properly available is that there had been more discussion with the child within the mother’s household about the allegations than was revealed by the affidavits of the mother and her husband. Neither of them made any mention of any discussion with the child about what retributive action might be taken to avert the danger to him. Of course, if the child’s statement was not true, it was another example of his mendacity.

8. Another curious aspect of the interview was the child’s apparent pre-occupation with his bowel and anus. At the very commencement of the interview the child volunteered to the interviewer he did not want to “do a pop-off and stink the room up”, which presumably was a reference to flatulence. When he was later discussing the allegation of Mr R inserting a finger into his anus the child laughed and interrupted the dialogue to reveal he had “popped-off”, or at least felt like doing so.

9. It was common ground the child had previously been retentive, avoiding defecation. He either had trouble or disliked defecating, which problem was thoroughly investigated in early 2011. He did not like the sensation of faeces in his nappy. He suffered from excoriation of the anus and buttocks, which was investigated as recently as only days before the child’s JIRT interview, when an anal swab was taken from him. The child’s buttocks and anus have therefore been the subject of interest, perhaps even concern, for a prolonged period. It would be speculative to infer some connection between that persistent abdominal interest and the child’s allegation about Mr R touching his buttocks or penetrating his anus, but it is another aspect of the evidence that invites cautious evaluation of the child’s representations.

10. Unsurprisingly, the JIRT officers did not find any of the child’s allegations sustained and terminated the investigation. Regrettably, that was far from the end of the matter for the maternal family.

11. The mother conceded she was discontent with the decision of JIRT to terminate its investigation. She interrogated the child following the interview to find out why JIRT was not pursuing the investigation,[41] so the child must surely have perceived the mother’s dissatisfaction and her disappointment in him. It is easy to understand how he may have wanted to redress that situation.

    [41] Exhibit F6

12. When the father telephoned the child several days later on 12 November 2012 he asked the mother to tell the father that Mr R “goes through [his] pants and gets into [his] bottom”.[42]

    [42] Mother’s affidavit, para 41

13. A week or so later on 18 November 2012 the child said to the mother:[43]

    Dad used to stick his finger in my bottom, but doesn’t any more. He just sticks his bottom in my face.

    [43] Mother’s affidavit, para 46

14. That was the very first time the child alleged he had been physically assaulted by the father. Importantly, the revelation directly contradicted what the child had told the JIRT interviewer only 10 days before. He told JIRT the father had never inserted his finger in his anus. Since the child had not seen the father between the time of his JIRT interview on 8 November and the time of his new revelation to the mother on 18 November 2012, he must therefore have lied either to JIRT or to the mother.

15. Unfortunately, the child was not called to account for the inconsistency of his statements. He experienced no reality testing. The mother said she was genuinely shocked by the child’s new disclosure and was rendered catatonic.[44]

    [44] Mother’s affidavit, para 46.1

16. Some weeks later in early December 2012 the child said to the mother:[45]

    Dad is like [Mr [R]]…The doodle thing, and the bottom thing.

    …Dad is like [Mr [R]]…He just does the same things…The doodle thing.

    [45] Mother’s affidavit, paras 49, 50; Affidavit of Mt M, para 24.4

17. Following another conversation with the mother in December 2012 in which the mother encouraged the child to raise his concerns with his psychologist,[46] the child later told his psychologist that Mr R “got into his bottom by going around his nappy”.[47] He told the psychologist Mr R had done that “3-4 times”,[48] even though he previously told JIRT officers it only ever occurred once. Again, he either lied to JIRT or he lied to the psychologist.

    [46] Mother’s affidavit, para 51

    [47] Family Report, para 30

    [48] Family Report, para 104; Exhibit M2

18. The mother said in cross-examination she reported these further disclosures to JIRT, but it did not convince JIRT to revive the investigation, about which she was frustrated. Her husband said he was “disgusted” by the decision. There was no room for doubt about the depth of their feelings.

19. As a consequence of the unresolved allegations of abuse, interim orders were made on 6 February 2013 providing for the child to spend supervised time with the father at a contact centre each Saturday.

20. The first supervised visit occurred on 16 February 2013. The mother admitted to the contact supervisor on or about that date the child had confided to her:[49]

    That stuff about dad, I just said that about Dad so I didn’t have to see him anymore.

    [49] Exhibit F7

21. One could hardly imagine a more stark admission by the child of his deceit. Not only did his admission of fabrication not deter the mother from her maintenance of the sexual abuse allegations about the father in these proceedings, but in the certain knowledge of the importance of the conversation, she did not even disclose it in her affidavit. Her failure to do so was reprehensible. The mother could not have forgotten such an important piece of evidence, particularly since she kept detailed diary notes of all the child’s disclosures. The mother said she did not believe the child’s admission, but that is not an adequate explanation for her omission either.

22. The only reference in the mother’s affidavit to events on 16 February 2013 was her assertion that the child told her he was scared of the father,[50] which in isolation from the child’s admitted fabrication tended to be completely misleading.

    [50] Mother’s affidavit, para 57

23. On the day of the first supervised visit with the father, the child also made disclosures to the maternal grandmother. The maternal grandmother deposed the conversation happened on 6 February 2013, but she corrected the date to 16 February 2013 when she gave evidence. The child said to her:[51]

    Sometimes Dad puts his bottom in my face, but he doesn’t do the naughty stuff any more, but [Mr [R]] still does. Dad did the stuff that [Mr [R]] does, but Dad stopped.

    The truth is that it did happen. Dad used to do all the [Mr [R]] stuff.

    On the second day at Dad’s house they started doing the things while I was asleep.

    The bottom stuff. Dad stopped. They were in my room together. Dad just waits until [Mr [R]] does the silly stuff – he waits until he is ready to do the naughty things, then [Mr [R]] starts and then Dad does. Dad waits at the door while [Mr [R]] does the silly stuff – the bottom stuff and all that.

    Dad gets in the bed and [Mr [R]] does.

    [51] Maternal grandmother’s affidavit, para 7

24. Thus, the child was now ludicrously alleging that the father and Mr R were accomplices in his sexual abuse. Significantly, the child previously reported the father was in the lounge room and ignorant of his molestation by Mr R. Again the child was not challenged about the inconsistency of his disclosures and admonished for dishonesty.

25. On 18 February 2013 the child similarly told the mother:[52]

    Dad used to do the bottom thing. Dad and [Mr [R]] used to be in the room together. Dad knew that [Mr [R]] was doing the bottom thing.

    [52] Mother’s affidavit, para 58

26. It is gravely concerning the mother and maternal grandmother seriously entertained the truth of such nonsense as alleged predatory complicity by the father and Mr R in the child’s sexual abuse.

27. The mother has known for years that the child tells incredible stories. She told the doctor at the consultation on 29 October 2012 that the child intermittently told “odd stories” and “chang[ed] them”.[53] When asked to elaborate upon that admission during cross-examination, the mother revealed the child had told her in 2010 or 2011 that “people had put sticks in his bottom”, which made no sense to her. Nor should it have, because it was ridiculous.

    [53] Exhibit F4

28. When challenged in cross-examination, the mother was impelled to admit the child was not always truthful. She plaintively said “he is a child”, implying her recognition that all children are prone to lie. Indeed they are. Children are actually encouraged by adults to indulge in fantasy and whimsy, because it enriches their lives. They develop their imagination and free themselves of the mundane reality they will experience soon enough. It is a simple fact of life that children tell untruthful stories, which makes it all the more difficult to understand why the mother will not confront the indisputable fact of the child’s untruthfulness in the present circumstances.

29. The child’s stories in this case should not be regarded as fact rather than fiction merely because they amount to reports of sexual abuse. The seriousness of the subject matter does not of itself render fiction truthful. As the Family Consultant explained in cross-examination, young children like the child have malleable minds and are liable to have false memories created by persistent discussion of a topic with them. Relevantly for present purposes, there can be no doubt the prospect of the child’s sexual abuse has been discussed with him in similar terms by various adults on many occasions since October 2012.

30. The mother’s stubborn resistance to the evidence undermining the validity of her belief in the child’s sexual abuse demonstrates either her wilful partiality or an acutely superficial capacity for introspection, either of which explanations reflects poorly upon her. The same observation may be made of her husband and the maternal grandmother.

31. Besides analysis of the evidence relating to the mother’s concern about the child’s physical afflictions, behaviour, and representations, there is the evidence of the father and Mr R to consider.

32. Mr R promptly denied his abuse of the child to JIRT.[54] As an alleged perpetrator of abuse he would have been entitled to maintain his privilege against self-incrimination and say nothing. His decision to contact JIRT and refute the allegations[55] is an indication he had no consciousness of guilt. The father had no need to submit to an interview with JIRT because the child made no disclosure about him in the JIRT interview.

    [54] Magellan Report, para 32

    [55] Family Report, para 56; Affidavit of Mr R, paras 13-15

33. Both the father and Mr R filed affidavits in these proceedings denying their commission of any abuse of the child and subjected themselves to cross-examination about the allegations.  They both proved to be stoic, measured and convincing witnesses. I accept their denials as truthful.

34. Having regard to the authorities by which the Court is bound (see M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93-326; Johnson v Page (2007) FLC 93-344) and the standard of proof which governs evidence touching upon allegations of serious misconduct, such as the sexual abuse of children (s 140 Evidence Act (Cth)), the following conclusions are inevitable:

    (a)The father did not sexually abuse the child, nor is the child at unacceptable risk of sexual abuse by the father; and furthermore

    (b)Mr R did not sexually abuse the child, nor is the child at unacceptable risk of sexual abuse by Mr R.

35. No other aspect of the evidence was relevant to s 60CC(2)(b) of the Act. Neither party contended the child was at risk of either physical or psychological harm as a consequence of subjection or exposure to “neglect” or “family violence”.

Best interests of child – additional considerations

1. The distance between the parties’ households is only approximately six kilometres, which distance takes about eight minutes driving time.[56] Although the mother and her husband are building a new home,[57] it is in the same general area. There is consequently no practical difficulty or expense involved in implementation of the orders.

   [56] Family Report, para 10

   [57] Family Report, para 86

2. There was no dispute about the parties’ respective capacity to meet the child’s physical and intellectual needs. The father accepts the mother is a capable parent by reason of his proposal for the child to remain living with her. The mother accepts the father is a capable parent, save for her belief about his sexual abuse of the child, for otherwise she would not have agreed to the orders she did in March 2011.

3. Nevertheless, there remained some debate about the mother’s ability to meet the child’s emotional needs, as exemplified by the names the child uses for himself, the father, and the mother’s husband.

4. The child has occasionally indicated his desire to abandon his surname “Gahen” and to be known instead by the surname of the mother’s husband, being “M”.[58] Although the mother still uses the surname “Gahen” it is her stated intention to change her surname to “M” at some point after the completion of these proceedings. The mother denied she encouraged the child to abandon his existing surname,[59] but I do not accept that evidence. It is unlikely to be the child’s own idea to change his name. The mother enrolled the child to commence school in 2013 under the surname “Gahen-M”,[60] which implies her dissatisfaction with the child’s current surname.

   [58] Family Report, para 33

   [59] Family Report, para 34

   [60] Exhibit F2

5. The child also often refers to the mother’s husband as “Dad” and calls the father “my other Dad”.[61] Again, the mother said the child did so without her encouragement.[62] Similarly, that evidence is difficult to accept. It is highly unlikely a child only five years of age voluntarily uses a term of endearment reserved for a parent to refer to the other parent’s new partner. Most likely, the child is encouraged, openly or tacitly, to refer to the mother’s husband as “Dad”.

   [61] Family Report, para 109

   [62] Family Report, para 34

6. The child seems utterly confused. He believes he is married to the mother’s husband.[63] It is surprising the mother has not been able to resolve that confusion for the child. Having regard to her competency in other respects, most likely she has not tried because it suits her for the child to believe he is bound more tightly to her husband than to the father. The child undoubtedly has the capacity to understand if it is explained to him, because he understands the father has a partner to whom he is not married.[64]

   [63] Family Report, paras 63-64

   [64] Family Report, para 65

7. The father is well aware of such developments and fears it shows the mother is intent on excluding him from the child’s life and replacing him with her husband.[65] His fear is not unwarranted. The mother completed the child’s school medical file in a way that excluded the father, even though she included herself, her husband, the maternal grandparents, and the child’s doctor as emergency and medical contacts.[66] The mother also saw fit to instruct her lawyers to correspond with the school informing the principal of the sexual assault allegations implicating the father.[67] Why she and her lawyers thought it was appropriate to do so remains a mystery.

   [65] Family Report, paras 41, 53

   [66] Exhibit F3

   [67] Exhibit ICL2

8. The mother’s husband may believe he and the mother do not intend for him to replace the father in the child’s life,[68] but there is considerable risk that could occur unless steps are taken to avert that outcome.

   [68] Family Report, para 87

9. Accordingly, orders are made to ensure the child’s retention of the surname “Gahen”. The mother admitted in cross-examination she realised retention of that surname was important for the child’s understanding of his biological link to the father. It was submitted the mother had no intention of changing the child’s surname, so she will presumably be content with an order that precludes her from doing so.

10. The orders also require the parties to ensure that the child refers to only them by the epithets “Dad” and “Mum”. The child should address the mother’s husband by his given name.

11. The child made his views clear to the Family Consultant on two points: he was happier to spend time with the father at his home in preference to the contact centre,[69] but he would prefer not to spend overnight time with the father.[70]

    [69] Family Report, para 66

    [70] Family Report, paras 66-68

12. The mother relied heavily upon the child’s expressed views as a factor influencing the parenting regime, but the submission of the Independent Children’s Lawyer that the child’s views should carry only limited weight was much more persuasive.

13. The child is still only five years of age. He has no concept as to how his views are liable to inform parenting arrangements for the remainder of his minority. It would clearly be inappropriate to limit his time with the father for another 13 years to simply daytime interaction. The child’s expressed reservation about currently spending overnight time with the father should really only influence the configuration of the parenting regime in the immediate future.

1. There is little doubt the child has exhibited some anxiety in the past about his visits to the father, but there is some uncertainty about the seriousness and the duration of the problem. There is an even greater degree of uncertainty about the reason for it.

2. The mother arranged an appointment for the child with a psychologist to deal with his anxiety in August 2012.[71] The mother admitted she ceased taking the child to that psychologist only two months later in October 2012 because he was showing great improvement.[72] The mother later deposed the positive change in the child did not last long,[73] but that evidence was uncorroborated and is difficult to accept. She really had no chance to assess the longevity of the child’s improvement because the child was only seeing the father fortnightly and she stopped the child from seeing the father in October 2012. The mother took the child to a different psychologist in December 2012, but that therapy related to the sexual abuse allegations rather than his transitional anxiety, as the psychologist’s notes reveal,[74] because by then the child was not seeing the father.

   [71] Mother’s affidavit, para 24

   [72] Family Report, para 109

   [73] Mother’s affidavit, para 69.13

   [74] Exhibit ICL5

3. The mother believed the child’s anxiety about visits with the father was due to his worry he would be sexually abused whilst there. While that is plausible, the Family Consultant offered other explanations in both the Family Report and during her cross-examination.

4. In the Family Report the Family Consultant observed the child’s anxiety might be a product of him being separated from the mother as his primary carer for periods which were both too long and spaced too infrequently for his developmental age.[75]

   [75] Family Report, para 117

5. During cross-examination the Family Consultant said the child’s awareness of the mother’s own anxiety is another obvious alternate explanation. The mother denied the child’s anxiety was influenced by her own anxiety about the child spending time with the father when he might be sexually abused, but her uncorroborated belief is hardly a sound basis for concluding there is no nexus between the child’s anxiety and her own. In contradiction, the Family Consultant said the nexus was quite feasible. That was also the view of the Department, since it was reported in the Magellan Report that the child is “highly vulnerable to the emotions of his parents”.[76]

   [76] Magellan Report, para 30

6. According to the Family Consultant, another possible explanation for the child’s anxiety is his apprehension about so many significant changes and events in his life: his separation from the father at a young age when the parties ceased cohabitation, his probable awareness of the adverse views of the father held by the mother and her husband, his need to adjust to a new family unit including the mother’s husband and his younger half-siblings, and his recent commencement of school.

7. Importantly, despite the child’s past anxiety concerning his transition to the father, he indisputably enjoys the time he spends with the father once with him. The father told the psychologist that,[77] the mother reported to the psychologist the child told her that,[78] and the mother’s husband admitted in cross-examination he also knew that.

   [77] Family Report, para 109

   [78] Family Report, para 109

8. The father said in cross-examination he did not believe the child now suffered any anxiety, although he acknowledged the child might initially suffer anxiety if and when substantial change was made to the arrangements under which the child spends time with him. Of course, that can be corrected by graduating the changes experienced by the child.

9. Even if the father’s perception is incorrect and the child it still anxious about visits with him, the mother’s concession about the warmth of the child’s interaction with the father in the supervised visits that have occurred since February 2013 necessarily means the child’s anxiety soon dissolves upon his introduction to the father. As the visits gradually endure for longer, the child’s residual anxiety will likely erode.

10. The father was cross-examined about unsatisfactory compliance with his child support obligations, but it was not submitted that deficiency should influence the nature of the parenting orders. It is enough to mention that, now the expense of these proceedings is behind him, the father should do considerably more to support the child financially.

11. No other factor prescribed under s 60CC(3) of the Act was addressed as influential in the outcome of the proceedings.

Conclusions and orders

1. The presumption of equal shared parental responsibility applies in view of the findings discussed under s 60CC(2)(b) of the Act. Relevantly, there are no reasonable grounds to believe that either party engaged in “abuse” or “family violence” (s 61DA(2)).

2. The mother, however, contended the presumption of equal shared parental responsibility was rebutted (s 61DA(4)). She sought sole parental responsibility for the child. It was contended the enmity and distrust created by the sexual abuse allegations were an impediment to the parties’ civil communication. That submission, while logically arguable, did not enjoy any evidentiary support.

3. The mother told the Family Consultant she was unsure whether she could share parental responsibility for the child with the father,[79] but being unsure is different from being convinced. In cross-examination the mother conceded the parties could communicate effectively by email or through use of a communication book. She even said it would be ideal if the parties could communicate orally. If she genuinely has that desire then there is no reason why it cannot occur, because the father is willing.

   [79] Family Report, para 37

4. The father proposed the parties have equal shared parental responsibility. He wants to communicate meaningfully with the mother about the child and recognises they can be competent parents without being best friends.[80] As was pointed out by the mother’s counsel during the father’s cross-examination, email correspondence between the parties shortly after the sexual abuse allegations were made, when their parental relationship was as vexed as it could be, was still cordial and respectful. Although the child is aware of the parental conflict, he confirmed to the Family Consultant that the parties are still able to conduct themselves with dignity.[81] The mother acknowledged it was important for the father to know what was happening in the child’s life. The best way that can be ensured is by the father sharing parental responsibility for the child with the mother.

   [80] Family Report, paras 58-59

   [81] Family Report, para 74

5. The Family Consultant supported the allocation to the parties of equal shared parental responsibility for the child.[82] She was not seriously challenged about the veracity of that opinion.

   [82] Family Report, paras 126-127

6. The evidence does not rebut the presumption and so equal shared parental responsibility for the child is allocated to the parties.

7. There is no utility in making the orders proposed by the father or Independent Children’s Lawyer that dilute or qualify the allocation to the parties of equal shared parental responsibility for the child.[83]

   [83] Exhibit F1, Orders 8, 9, 12, Notation A; Exhibit ICL8, Order 14

8. Given the allocation of equal shared parental responsibility, the Court is mandated to consider orders providing for the child to live with the parties for equal time, or alternatively, to live primarily with one and spend substantial and significant time with the other (s 65DAA).

9. An “equal time” residential arrangement is not in the best interests of the child. He regards his home as with the mother. Neither party nor the Independent Children’s Lawyer suggested the child should live with the father for equal time. It was common ground the child should remain resident with the mother, so the real issue is the regime under which the child should spend time with the father.

10. It is certainly reasonably practicable for the child to spend substantial and significant time with the father, but whether that outcome is in his best interests was a matter of some debate.

11. The father and Independent Children’s Lawyer both contended a regime of “substantial and significant time” between the child and the father was ultimately in the child’s best interests, but should be achieved gradually. They had disparate views about the rapidity with which the regime should expand.

12. The Family Consultant recommended in the Family Report that overnight time did not appear to be in the child’s best interests “at this point in time”,[84] which implied her opinion that circumstances would change at some point within the foreseeable future so as to render appropriate overnight visits by the child with the father. The Family Consultant’s solution to the problem was to delegate responsibility to the child’s current psychologist to determine when the program should transition to overnight time.[85]

    [84] Family Report, para 123

    [85] Family Report, para 128

13. That idea is unattractive because it requires the Court to abdicate responsibility for determining the orders that promote the child’s best interests and vest that responsibility in another person. The Court has sole and exclusive jurisdiction to make parenting orders, which it should not delegate.

14. The mother approached the problem in a different way. She contended the Court should make final orders providing for the child to spend only daytime with the father, leaving it to the parties to initiate fresh litigation for alteration of those orders if warranted by changed circumstances. The mother expressly disavowed the alternative of making only interim orders providing for the child to spend only daytime with the father and to bring the matter back for review after the elapse of a further undefined period of time.

15. The mother’s idea is also unattractive because it significantly enhances the prospect of further litigation. Making only interim orders instead of final orders guarantees further litigation. It is highly likely any anxiety the child currently experiences about spending overnight time with the father will abate in the foreseeable future.[86] Unless the mother willingly agreed at that juncture to fundamentally restructure the parenting orders, further litigation would be inevitable. That would not be good for the child or the parties. Given the mother’s stated long-held belief in the child’s sexual abuse within the father’s household, the chances of her subsequently agreeing to the child spending more time with the father than the Court’s orders prescribe are quite remote.

    [86] Family Report, para 124

16. The best option is to make final orders under which the time the child spends with the father gradually expands. The rate of expansion should bear more similarity to the Independent Children’s Lawyer’s proposal than the father’s proposal, but the child’s best interests still demand that the regime culminates in an arrangement under which he spends substantial and significant time with the father. That will permit gradual erosion of the child’s anxiety. The Family Consultant endorsed that outcome during her cross-examination. The orders do not precisely match the Independent Children’s Lawyer’s proposal, but they are relatively similar. The orders gradually expand the child’s visits with the father over a period of approximately the next 12 months. Overnight stays with the father begin after about three months.

17. The orders make provision for the child to be exchanged between the parties at school whenever possible once the long-term orders are triggered. In the early stages while the child’s visits with the father are of relatively brief duration, and also on the occasions outside school hours, some other venue is required for the child’s exchange. The father and Independent Children’s Lawyer both proposed the parties’ homes,[87] but that is not an appealing option since the mother’s distaste for the father means she is unlikely to welcome him at her home. A neutral venue is preferable and so the orders nominate an arbitrary public venue in the vicinity of the parties’ homes. They may agree otherwise if they please.

    [87] Exhibit F1, Order 7; Exhibit ICL8, Order 7

18. Notwithstanding any prospective finding by the Court that Mr R posed no risk of abuse to the child, there was considerable debate about whether an injunction should be imposed precluding the child’s interaction with him. The mother proposed a permanent injunction,[88] the Independent Children’s Lawyer proposed a temporary one,[89] and the father opposed any.

    [88] Amended Application, Order 6

    [89] Exhibit ICL8, Order 10

19. Although the Family Consultant recommended a permanent injunction,[90] her views were much more flexible during cross-examination. She acknowledged the conflicting possibilities of, on the one hand, the child being emotionally disturbed if brought into contact with Mr R if he believes he was abused by Mr R and, on the other, the excision of Mr R from the child’s life causing him to falsely and harmfully believe he was abused by Mr R. Her concessions, however, were of possibilities, not probabilities.

    [90] Family Report, para 131

20. The Family Consultant was unable to say whether the child probably believes he was abused by Mr R. The most she could say was that he was a “confused little boy”. The Family Consultant said she believed it was “a matter for the Court” as to whether such an injunction was made. She just thought it would be safer for the injunction to be made in case the child does believe he was abused by Mr R.

21. The father contended an injunction would impede the function of his new family unit, which includes Mr R. The Family Consultant agreed the child would experience a “sense of normality” if he could visit Mr R and his wife with the father and his partner.

22. The evidence does not rationally permit any finding that the child actually believes he was sexually assaulted by Mr R. He may or he may not. Taking a course that risks perpetuating such a false belief in the child could not be regarded as positive. The best course is to normalise the child’s life when visiting with the father. That is best achieved by allowing the child time to adjust to the changes that dispense with his supervision and enable him to spend unsupervised time with the father without other distractions, such as his re-introduction to Mr R. The re-introduction of Mr R can occur once the child has settled emotionally into the more immediate changes. The Independent Children’s Lawyer’s proposal for an injunction precluding the child’s interaction with Mr R on only a temporary basis is most appealing.

23. The duration of the injunction is relatively arbitrary, but the proposed duration of three months seems reasonable. The Family Consultant agreed in cross-examination with the proposition that an embargo of two months duration on the introduction of third parties was reasonable. The orders impose the injunction for a period approximating three months.

24. The orders make provision for the child to have telephone communication with the parties, consistently with the recommendation of the Family Consultant[91] and the proposals of the parties and Independent Children’s Lawyer.[92] There was disagreement about whether the communication should be once or twice per week, but the issue was not explored in cross-examination. I accept the Family Consultant’s unchallenged recommendation that it should be once.

    [91] Family Report, para 130

    [92] Amended Application, Order 5; Exhibit F1, Order 10, Exhibit ICL8, Order 8

25. The mother is ordered to complete a post-separation parenting program within the next six months. Both parties were formerly ordered to undertake such a program,[93] but only the father did. The mother said she had enrolled in such a course, but not yet started it, for which her excuse was unsatisfactory. She glibly professed to having no idea when she would undertake the course.

    [93] Order 1.5 made on 6 February 2013

26. The orders also permit the parties to furnish a copy of the orders to the principal of the child’s school. That will go some way to remedy the father’s perception of his marginalisation in the child’s educational decisions and also cure the mother’s unjustified notification of the school about the allegations of the child’s sexual abuse, which allegations have been rejected.

27. The Independent Children’s Lawyer sought an order compelling both parties to attend a course entitled “Keeping in Contact” conducted by Unifam.[94] Both parties said in cross-examination they were willing to attend the course, including with the child if necessary. The Court only has the power to order the parties’ participation in that program if it meets the definition of a “post-separation parenting program” (ss 4, 65LA). Although the evidence was sparse, it permits a conclusion that the course is designed to help resolve problems that adversely affect the proper discharge of parenting responsibilities and consists of lectures, discussions and other activities (s 4). Although it may well be the case, it remains unknown whether Unifam is a designated provider of post-separation parenting programs (s 65LB). To overcome the problem, orders are made requiring the parties to attend together, with the child if directed, any post-separation program nominated as desirable by the Family Consultant.

    [94] Exhibit ICL8, Order 15

28. The father proposed an order compelling the parties to continue the child’s therapeutic engagement with a particular psychologist for as long as that psychologist deems fit.[95] He believed that psychologist “knows the history and may speed up the healing process”, which was hardly a thorough analysis of the situation. That same psychologist was selected for the child by the mother on advice from a paediatrician, but even she did not consent to the order proposed by the father.

    [95] Exhibit F1, Order 13

29. The Family Consultant declined to endorse the proposed order because she was “not sure where they [the child and psychologist] are up to therapeutically” and the counselling might be reinforcing the child’s belief in his abuse.

30. I decline to make the order. The mother has already informed the psychologist of her unwavering belief in the child’s sexual abuse by either or both the father and Mr R. Whether the psychologist accepts the factual accuracy of that belief for the purpose of his administration of therapy to the child is unknown, but if he does, there is a real risk the child will be either inculcated with a damaging false belief or any existing false belief will be consolidated.

31. The parties are allocated equal shared parental responsibility for the child. They each have equal input about what therapy the child receives and from whom it is received. The parties may exercise their equal shared parental responsibility and decide the child should continue to consult his current psychologist if they so choose, but the child cannot continue to consult that psychologist unless both parties agree.

32. Leave is granted to the parties to furnish to any therapist they engage, for either the child or themselves, a sealed copy of these orders and the Court’s reasons for the orders, which order is similar to that proposed by the Independent Children’s Lawyer.[96]

    [96] Exhibit ICL8, Order 16

33. The Independent Children’s Lawyer proposed an injunction precluding the parties from “initiating conversation with the child for the purpose of establishing that he has been abused in the other parent’s household”.[97] While the objective of such an order is commendable, I decline to make it since it is aspirational rather than prescriptive. Who is to determine whether the parent “initiates” the conversation and how would that be determined? In any event, it is an open invitation for the father to interrogate the child about whether the mother initiates such conversation with him. Such an order is more likely to stimulate than abate dispute between the parties. Instead, an order is made obliging the parties to provide copies of the orders, and the reasons for them, to any authorities to whom fresh allegations of abuse are made.

    [97] Exhibit ICL8, Order 12(b)

1. The father sought a series of orders regulating the child’s international travel.[98] I decline to make any orders of that sort because of the paucity of evidence on the topic. There was really no evidence other than the father’s desire to take the child to the USA, when he can afford it, and the mother’s opposition to it. The issue has been vexed for some time. They previously agreed the child should not travel internationally until he was at least five years of age.[99] Now the child has attained five years of age, the father still has no financial capacity to undertake international travel with the child. He is in arrears with child support payments to the mother for the child and also in respect of his older children who remain resident in the USA. The parties have equal shared parental responsibility for the child. If, when the father can afford such travel and has formulated concrete plans, the parties are still unable to resolve the dispute then further litigation may be necessary. At least then there will be some reliable evidence upon which to make a judicial determination. No doubt the mother’s former conditional consent to international travel will be a consideration.[100]

   [98] Exhibit F1, Orders 15-19

   [99] Order 12 made on 23 March 2011

   [100] Order 12 made on 23 March 2011

2. The remaining orders could not be the subject of reasonable dispute.

Costs

1. The mother proposed that the father pay her costs of and incidental to the proceedings.[101] The father made the same application in reverse.[102]

   [101] Amended Application, Order 7

   [102] Exhibit F1, Order 21

2. Since that issue was not addressed in final submissions an order is made reserving the costs of the parties and the Independent Children’s Lawyer for 28 days. The matter may be re-listed within that period for the purpose of either party or the Independent Children’s Lawyer making any costs application.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 September 2013.

Associate: 

Date:  20 September 2013