Gambera & Lethbridge
[2022] FedCFamC1F 25
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gambera & Lethbridge [2022] FedCFamC1F 25
File number: BRC 7063 of 2017 Judgment of: CAREW J Date of judgment: 31 January 2022 Catchwords: FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – Where the mother does not seek a finding that the father poses an unacceptable risk of sexual harm to the child – Where the Department of Children, Youth Justice and Multicultural Affairs investigation concluded the father posed an unacceptable risk of sexual harm to the child – Where the Court finds the father does not pose an unacceptable risk of sexual harm to the child – Where the Court finds the father does not pose an unacceptable risk of emotional harm to the child by way of denigrating the mother in the presence of the child – Where the Court finds the mother does not pose an unacceptable risk of emotional harm to the child by way of encouraging the child to make false allegations against the father, denigrating the father in the presence of the child and directly involving the child in the conflict.
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parents sought equal shared parental responsibility – Where the child will live with the mother and spend substantial and significant time with the father – Where the parents have capacity to make joint decisions about major long-term issues.Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)Cases cited: Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
CDJ v VAJ (1998) 197 CLR 172
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655Number of paragraphs: 158 Date of hearing: 1 – 4 November 2021, 12 November 2021 and 23 November 2021 Place: Brisbane Counsel for the Applicant: Ms Dart Solicitor for the Applicant: Hooper Family Lawyers Counsel for the Respondent: Mr Cameron with Mr Moxon on 1 – 3 November 2021 and
Mr Moxon on 4, 12 and 23 November 2021Solicitor for the Respondent: Lloyds Solicitors Counsel for the Independent Children’s Lawyer: Dr Sayers Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 7063 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GAMBERA
Applicant
AND: MS LETHBRIDGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
31 JANUARY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child, X born … 2015 (“the child”).
3.In exercising their equal shared parental responsibility for the child, the parents are to consult each other as follows:
(a)A parent shall inform the other parent of the decision to be made;
(b)Each parent shall make a genuine effort to come to a joint decision on the issue; and
(c)Where there is still dispute on an issue, the parents shall attend upon a family dispute resolution practitioner, chosen by the parent who initiated the consultation, to assist them to make a decision jointly.
4.The child live with the mother.
5.The father spend time and communicate with the child at all times as can be agreed between the parents in writing but failing agreement as follows:
(a)During school term, each alternate weekend from 6.30pm Friday until 4.30pm Sunday and in the event that the Monday is a public holiday or the father's rostered day off, then until 4.30pm Monday;
(b)For the first half of all school holidays in odd numbered years and the second half in even numbered years;
(c)The father shall be at liberty to telephone/FaceTime the child, each Tuesday and Thursday between 5.30pm and 6.00pm.
6.To remove any doubt, school holidays start on the first Saturday after the conclusion of the school term and end on the last Saturday before school commences.
7.The child spend time with each of her parents on special occasions, at which time all time provided for in paragraph 5 hereof is suspended:
(a)On Mother's Day and Father's Day each year as follows:
(i)The child shall spend time with the mother on Mother's Day weekend each year from 6.30pm the Friday prior to Mother's Day until 4.30pm on Mother's Day.
(ii)The child shall spend time with the father on Father's Day weekend each year from 6.30pm the Friday prior to Father's Day until 4.30pm on Father's Day.
(b)On Christmas special days (24, 25 and 26 December each year):
(i)In even numbered years, the child shall spend time with the mother from 10.00am 24 December until 12.00 noon on 25 December and with the father from 12.00 noon 25 December until 6.30pm 26 December.
(ii)In odd numbered years, the child shall spend time with the father from 10.00am 24 December until 12.00 noon on 25 December and with the mother from 12.00 noon 25 December until 6.30pm 26 December.
(c)On Easter special days (Easter Thursday - Easter Monday):
(i)In even numbered years, the child shall spend time with the mother from 3.30pm Easter Thursday until 3.30pm Easter Saturday and with the father from 3.30pm Easter Saturday until 3.30pm Easter Monday;
(ii)In odd numbered years, the child shall spend time with the father from 3.30pm Easter Thursday until 3.30pm Easter Saturday and with the mother from 3.30pm Easter Saturday until 3.30pm Easter Monday.
(d)On the child's birthday, if a school day, the parent who has the care of the child will cause the child to call the other parent between 5.30pm and 6.00pm that day. If a non-school day, the parent who does not have care of the child on the day of her birthday shall spend time with her from 1.00pm until 6.30pm that day.
8.Unless otherwise agreed in writing, the changeover at the commencement of the child’s time with the father will occur at B Centre Suburb C and the changeover at the conclusion of time will occur at Location Z at the D Shopping Centre.
9.The parents shall facilitate the child’s continued attendance upon Ms F, for as long as recommended by Ms F and for this purpose:
(a)Both parents are at liberty, on Ms F's invitation, to engage with her as the child's psychologist;
(b)The cost of the child’s attendance be shared equally between the parties;
(c)Depending on Ms F's input as to whether it would likely compromise her therapeutic role with the child, Ms F be the first person to explain this Order to the child and for this purpose, the parents arrange for the child to attend upon Ms F as soon as reasonably practicable after the making of this Order.
10.Within fourteen (14) days of the date of this Order:
(a)The mother is to engage with an appropriate psychologist (familiar with family law disputes and child protection in the context of sexual abuse allegations);
(b)Once an appointment has been scheduled, the mother notify the independent children's lawyer by email of her treating psychologist’s name, address, email and phone number;
(c)The mother shall engage with her treating psychologist for as long as recommended by her treating psychologist however must not be less than four (4) sessions.
11.Leave be granted to the independent children's lawyer to provide a copy of the Reasons for Judgment of this Honourable Court, the final Order, affidavits of Ms Y filed 28 September 2020 and 1 November 2021, to:
(a)The Department of Children, Youth Justice and Multicultural Affairs;
(b)Child Safety Officer, Ms E;
(c)The child's treating psychologist, Ms F; and
(d)The mother's treating psychologist.
12.In future, neither parent is to first notify or otherwise consult with Queensland Police Service or Department of Children, Youth Justice and Multicultural Affairs, or the child's treating psychologist in relation to an alleged disclosure of the child regarding sexual abuse when in the care of the other parent, without first advising that other parent of the alleged disclosure, providing particulars of the alleged disclosure, and inviting a response.
13.During the time the child is in their respective care, the parents shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent, their parents or partners in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent, their parents or partners in the presence or hearing of the child.
14.This Order is sufficient authority for any school at which the child attends to give each parent information about the child's educational progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the child at the requesting party's cost.
15.The parents be at liberty to provide a copy of this final Order to any school attended by the child.
16.Each parent keep the other parent informed of the child's doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child, at the requesting parent’s expense, and this Order shall serve as such authority.
17.Each parent inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child's medical information to the other parent.
18.Each parent keep the other parent informed of changes to the respective parent’s residential and/or home telephone numbers and/or mobile telephone numbers within forty-eight (48) hours of any such change.
19.On or before 31 July 2022 the mother pay to the father $4,840.30 representing one half of the total cost of the two family reports prepared by Ms Ms Y in this matter.
20.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.
NOTATION
A.It is noted that paragraph 12 of this Order was recommended by the independent children’s lawyer and neither parent objected to its inclusion.
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 Gambera & Lethbridge has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Gambera and Ms Lethbridge have one child, X, who is six years of age.[1] Since the parents’ separation on 27 January 2016, the child has lived with her mother. The father now wants the child to live with him because of what he contends is the mother’s coaching or influencing of the child to make statements about him suggesting he has touched her in a sexually inappropriate way. The father denies doing so. The mother denies coaching or influencing the child as suggested.
[1] To assist with the anonymisation of these Reasons, I will refer to Mr Gambera as “father”, Ms Lethbridge as “mother” and X as “the child”.
This case is unusual because all three parties i.e. the father, the mother and the independent children’s lawyer (“ICL”) urge the Court to make a finding that the father does not pose an unacceptable risk of sexual harm to the child. This is despite an investigation by the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) which concluded on 24 September 2021 as follows:
The information gathered throughout this investigation and assessment has determined that [the father] is the person responsible for causing [the child] significant emotional harm as a result of ongoing sexual abuse, and that she would also be at significant risk of harm of the same if she were to be cared for by [the father]/left alone/unsupervised with [the father].
Conclusions reached by the Department are not of course binding on this Court but its conclusion and the reasons for it will be of considerable interest when determining the issues in dispute between the parties in this case. It is regrettable that the Department has chosen not to intervene in these proceedings so that the issue of risk could be determined and binding on the Department as well as the parties. The Department, through one of their junior child safety officers, indicated to this Court during her evidence that should a finding on the issue of risk be inconsistent with their own, the Department would embark upon a further investigation. This case demonstrates the difficulties to which parents, and more particularly children, are exposed, in a system where family law and child protection are dealt with in two different jurisdictions i.e. one Federal and the other State.
Notwithstanding the mother’s submission that the father does not pose an unacceptable risk of sexual harm to the child, she nevertheless submits that the father presents an unacceptable risk of emotional harm to the child by exposing the child to denigration of the mother.
For the reasons which follow I find that the father does not pose an unacceptable risk of harm to the child (either sexual or emotional) and that it is in the child’s best interests to continue to live with the mother and to spend unsupervised time with the father each alternate weekend and half school holidays.
WHAT PARENTING ORDERS ARE SOUGHT BY THE PARTIES?
The father submits that the mother poses an unacceptable risk of emotional harm to the child because of her alleged coaching of or influence on the child to make statements suggesting inappropriate touching, and proposes that the child live with him and spend time with the mother each alternate weekend and half school holidays. The father proposes that the parents have equal shared parental responsibility for major long-term issues concerning the child. The precise terms of the order sought by the father are set out in the father’s Second Amended Initiating Application filed 4 October 2021.[2]
[2] The father did not press for a moratorium against the child spending time with the mother for a month which is included in his application.
Despite the mother’s position on the first day of trial, i.e. that her primary position was for unsupervised time between the father and the child to resume, an attempt was made to clarify the mother’s position on the last day of trial. In oral submissions, counsel for the mother submitted that if the father was found to pose an unacceptable risk of emotional harm to the child by exposing her to the conflict and his denigration of the mother, the father’s time should be supervised long-term by the paternal grandparents and if they were unavailable then the father’s time with the child should occur at a contact centre. However, in written submissions (prepared by the same counsel) unsupervised time between the father and child was sought irrespective of a finding of unacceptable risk. As the order sought by the mother in her Second Amended Response filed 11 October 2021 is for supervised time in the event of a finding of unacceptable risk (i.e. whether sexual or emotional) I assume the oral submissions are correct.
I note that despite the child making statements implicating the paternal grandparents in the allegations of sexual abuse, the mother supports them as ongoing supervisors, in circumstances where the child would spend overnights at the paternal grandparents’ residence in the absence of the father. The mother proposes that she have sole parental responsibility if the father poses an unacceptable risk of harm. If the father is found not to pose an unacceptable risk of harm, the order proposed by the mother is for unsupervised alternate weekends and some holiday time. The precise terms of the order sought by the mother, and in the alternative, are set out in her Second Amended Response filed 11 October 2021 and includes an order for equal shared parental responsibility if the father does not pose an unacceptable risk of harm.
As already noted, the ICL submits that the father does not pose an unacceptable risk of harm to the child (either sexual or emotional). Further, the ICL submits that the determination of whether or not the mother poses an unacceptable risk of emotional harm to the child is finely balanced. If the Court finds the mother does not pose an unacceptable risk of harm, the ICL recommends that the mother have sole parental responsibility for the child and that she live with the mother and spend unsupervised alternate weekend time with the father and half holidays. In the alternative, if the Court finds the mother does pose an unacceptable risk of harm, the ICL recommends the father have sole parental responsibility for the child and that she live with the father and spend alternate weekends and half holidays with the mother (but only after the mother has attended not less than four sessions with her treating psychologist). The precise terms of the alternative orders recommended by the ICL are set out in Exhibit 15.
WHAT ARE THE ISSUES IN DISPUTE?
The agreed issues for determination were clarified during the trial and are as follows:
(1)Does the evidence support a finding that the father poses an unacceptable risk to the child of sexual harm?
(2)Does the father pose an unacceptable risk of emotional harm arising from his alleged denigration of the mother to the child, and/or exposing the child to conflict, and/or undermining the mother’s parenting capacity?
(3)Does the mother pose an unacceptable risk of emotional harm to the child arising from her alleged encouragement of the child to make false allegations against the father and/or her alleged denigration of the father to the child and/or her alleged exposure of the child to conflict?
(4)Do the parents have the capacity to support and facilitate the child’s relationship with the other and to co-parent?
Before considering the issues, it will be helpful to set out some background to the dispute and the legal principles applicable to parenting disputes.
BACKGROUND
The father and mother commenced cohabitation in 2012, married in 2014 and separated on 11 July 2015, although they remained living under the same roof until 27 January 2016 when the father left the former matrimonial home. The parents are divorced.
The father is 46 years of age and employed full-time as a tradesperson. The father lives alone near Brisbane.
The mother is 49 years of age and employed part-time in retail. The mother and child have lived at G Town, north of Brisbane, since 2017.
The parents have one child. X was born in 2015.
The mother was admitted to hospital in April 2016 as a result of a medical problem. The father moved back into the former matrimonial home to look after the child. When the mother was discharged from hospital in April 2016 she remained unable to care for the child, so the father remained and cared for both the mother and the child until he again moved out on 21 July 2016. It may be that there was a reconciliation or attempted reconciliation during this time. At or around this time, the father commenced to record all of his encounters with the mother, ostensibly to protect himself against false allegations.
Each parent makes allegations that the other has engaged in family violence in the past but neither of them suggest there is any future risk of family violence to either themselves or the child, despite the alleged history.
After separation and then after the father moved out for a second time, the father spent weekly day time with the child on one day each week until December 2016 when his time increased to include two hours each Wednesday as well as one day on the weekend.
In 2017 the mother relocated with the child to G Town, about an hour and a half from where the father lives. The father’s prior knowledge of this relocation is in dispute but suffice to say the father discontinued earlier proceedings seeking to have the mother return with the child to the Brisbane area.
There has been considerable involvement by police and the Department with this family as a result of numerous complaints made by the mother, initially, and more recently as a result of mandatory notifications made by others.
None of the investigations have led to the father being charged with any criminal offence and, until the most recent investigation, the Department had concluded the complaints against the father were “unsubstantiated”. Historically, the Department had concerns that the mother may have been coaching the child.
A ‘final’ parenting order was made by consent on the 9 October 2017 (“the 2017 order”) providing for the child to live with the mother and spend gradually increasing time with the father, so that by the time the child was due to commence school in 2020 she would be spending alternate weekends (two nights) and half school holidays with the father. The 2017 order also provided for the parents to have equal shared parental responsibility. The mother contends that she was rushed into consenting to the 2017 order and had no other option.
The father commenced a relationship with Ms H in December 2018. The relationship ended in January 2020 when Ms H moved to Canberra.
The child commenced day care at J Kindergarten in January 2019 and now attends K School where she has just completed her prep year.
The mother stopped the father spending time with the child from 18 October 2019, in response to her concerns that the child was at risk of sexual abuse by the father. Police and the Department conducted investigations and concluded that no further action would be taken. Unsupervised alternate weekends recommenced at the end of 2019.
As a result of the further allegations made by the mother against him, the father commenced Court proceedings on 31 January 2020.
An interim order was made on 9 March 2020 for the father’s alternate weekend time with the child to be supervised by one or both of the paternal grandparents on the basis that the father would not stay overnight with the child. That order remained in place until 8 March 2021 when the parents agreed to lift the requirement for supervision and a consent order was made to that effect.
On 2 July 2020 the child commenced consultations with a psychologist, Ms F.
On 5 August 2021 the child was interviewed by police for a third time (two prior occasions occurred in 2019) and the police determined that no action would be taken.
The father’s time with the child was again suspended by the mother on 8 August 2021 and he has not seen the child since that time, save at the family report interviews on 15 October 2021.
As already noted, on 27 September 2021 the Department substantiated the allegations of emotional harm from ongoing sexual abuse by the father. However, the investigating child safety officer from the Department confirmed in her oral evidence that ongoing supervised time with the father would not be objected to by the Department.
WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]
[3] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[4] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[5] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the Court is nevertheless required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[8] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[9]
[4] Evidence Act 1995 (Cth), s 140.
[5] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[6] Ibid.
[7] M v M (n 5) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[8] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68].
[9] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[10] and said from [38]:
[10] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[11] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[11] Ibid.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[12] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [13] on each and every factual dispute.[14]
[12] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[13] M v M (n 5) at 76.
[14] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[15]
[15] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE EVIDENCE SUPPORT A FINDING THAT THE FATHER POSES AN UNACCEPTABLE RISK TO THE CHILD OF SEXUAL HARM?
While all parties submit that the father does not pose an unacceptable risk of sexual harm to the child, the assessment made by the Department makes it particularly necessary to carefully consider all of the available evidence, including the evidence upon which the Department relied to come to the conclusion of “substantiated emotional abuse caused by ongoing sexual abuse”.
As noted earlier in these Reasons the term “unacceptable risk” is a reference to the exercise of assessing the magnitude of risk. It is impossible in most cases to conclude absolutely that there is no risk at all. The exercise involves a careful analysis of all of the evidence upon which a court may conclude that the risk is either unacceptable i.e. a significant risk of harm, or not unacceptable i.e. a remote risk of harm.
In all matters concerning possible sexual abuse of a young child, it is imperative to begin by looking at what initially led to a concern that the child may have been subjected to sexual abuse. This is important because what follows e.g. what questions are asked of the child or what actions are taken in response, may contaminate what may be a disclosure of sexual abuse or alternatively what may be an innocent statement or action wrongly interpreted to be something sinister. All that follows will of course also be relevant, but the initial concerns are in my view of particular importance. The assessment of risk is all the more difficult when children are very young because adults are often relying upon their own interpretation of something said or done that may be equivocal. The identification of risk and assessment of its magnitude can also be complicated when there is animosity between parents because of what might be a tendency by a parent to more readily interpret something as sinister because they hate the other parent. On the other hand, one must not too readily reject an allegation because it is made in the context of high conflict or even hatred. Such matters require an even more assiduous examination of all relevant evidence and an open mind when assessing the magnitude of the risk.
Since at least 5 March 2021[16] the mother has not been “advocating” for a finding against the father that he poses an unacceptable risk of sexual harm to the child. The mother’s position was confirmed by her counsel on 19 July 2021[17] and at the commencement and conclusion of this trial. The mother’s position sits somewhat uneasily with her statements that she “believes the child”. I am not sure what it is the mother believes, given that the child has made inconsistent statements about whether some form of (what might be) inappropriate touching has occurred or not. The mother’s position also sits uneasily with her dogged diarising of observations and comments by the child over many years that only stopped earlier this year. I am also troubled by the diarised note made by the mother on 10 April 2021 that she “had to agree to supervision to be lifted for adjournment to happen” on 8 March 2021. As already noted the mother consented to the order on 8 March 2021 that removed the requirement for supervision. When asked about the diary entry, the mother sought to distance herself from her it claiming that she “wouldn’t put it to that extent” and “[i]t was just the situation it was”. When asked about her current concerns about sexual abuse of the child by the father the mother conceded that she still had concerns, but was not seeking a finding that the father posed an unacceptable risk of sexual harm to the child – “[b]ecause I don’t want it to be true. I’ve said that the whole way along”.
[16] This was the date of a letter sent by the mother’s lawyer to the father’s lawyer and the ICL confirming that the mother was not seeking a finding that the father posed an unacceptable risk of sexual harm to the child.
[17] See Notation to the Order made on that date where it was noted that the mother was not advocating for such a finding but nevertheless contended that such a finding could be made.
The mother’s concerns first arose on or about 28 January 2017 when the child was not yet two years of age. The mother made a diary note. The entry appears as follows:
SEXUALISED BEHAVIOUR!!!
[The child] returning saying “BOOBIES” pointing to her privates.
It is unclear why that behaviour seems to have so alarmed the mother but it is common ground that the mother is an anxious mother and hypervigilant when it comes to the child’s safety and welfare. Indeed, since the mother first began noting behaviours that concerned her, she has consulted numerous authorities or agencies or persons including the following:
(1)The Department
(2)Queensland Police Service
(3)L Family Services (a sexual abuse counselling service)
(4)Four different general medical practitioners
(5)Representatives from the ‘M Children’s Program’
(6)N Health Service (a body that provides assistance to new mothers)
(7)Dr O (provided couples counselling to the mother and father and saw the child on one occasion)
(8)Ms P (former psychologist who passed away)
(9)Ms Q, a psychologist, on one occasion
(10)X Family Services
(11)U Family Services
(12)R Family Services (a domestic violence service)
(13)S Family Services (an advice service)
(14)Mothers’ Group
(15)‘Ms T’ at the Neighbourhood Centre
(16)A teacher
(17)Kindergarten teacher – Ms V
(18)The child’s school.
On 16 February 2017 the mother made a further diary entry – “slapping her vagina!!!” When asked about this entry, it immediately became apparent that the mother was not using anatomically accurate words in her diary. The mother demonstrated what she saw her then 23 month old child doing, namely, an upwards stroking or patting motion on the outside of the clothing over what might more accurately be described as the mons pubis. The mother spoke to N Health Service about her concerns.
On 17 July 2017 the mother’s diary entry noted:
Noticed the last couple of weeks - kissing toys, toys kissing each other saying “kiss”, “kissing”
On 6 September 2017 the mother’s diary entry noted:
[The child] playing with her chest calling them “boobies” & pointing fingers as her nipples trying to say “nipples”
The mother spoke to someone from the ‘M Children’s Program’ about her concerns and what she interpreted as sexualised behaviour. The mother also took the child to a general medical practitioner to be “checked” for any “intrusion”. The child’s genitals were examined externally. Nothing of concern was noted.
A number of further entries were made by the mother in her diary on the 24 September 2017, 25 September 2017 and 11 October 2017[18] in a similar vein. On 20 October 2017 the mother’s diary entry noted:
placed her “wand” in & around her vagina rubbing saying “front bum”
[18] I note that a final parenting Order was made by consent on 9 October 2017. The Notice of Risk filed by the mother in those proceedings did not allege any risk of sexual abuse. I further note that the mother told the family report writer that she had been “coerced” into agreeing to this Order. The mother distanced herself from the use of that term in these proceedings.
In the mother’s trial affidavit she said that the child had - “told me that she had begun to attempt to insert objects into her vagina”. When cross-examined, the mother conceded that the child had not actually said this but rather – “[s]he was just doing it”. The mother acknowledged that the child was not developmentally able to say such a thing at the time. When asked to demonstrate and describe what the child was actually doing, it became apparent that the mother’s notation in her diary and her sworn evidence both in her affidavit and her oral evidence was inaccurate. The mother said that to the best of her recollection the child was “putting the wand down the front of her pants and rubbing it around”. The mother clarified that she could not see the child insert the wand into her vagina because the child was clothed and that when she used the term “vagina” she was using an incorrect term and it should be “labia”. The mother agreed that prior to this observation, the child was just playing and randomly got up and stuck the wand down her pants.
On 13 November 2017 the mother took the child to the doctor and accepts that the doctor’s records of what the mother said are likely to be accurate. The records include the following:
Diagnosis:
Behaviour problem
…
mother worried about [the child’s] behaviour
parents seperated a year ago
[The child] coped well
lately throwing tantrums
gets rough with mother
doesnt say sorry
she is otherwise going well
attends play groups, has library time...
(As per the original)
At that time, the mother was concerned about what she perceived to be a premature move to overnight time for the child with the father.
A further entry in the mother’s diary on 20 November 2017 includes the following entry:
try inserting round end of twirl ribbon stick
When cross-examined about this incident, the mother conceded that her description was not accurate. The child was rubbing the ribbon around the front of her pants.
In a diary entry for 23 January 2018 the mother notes:
slapping vagina cont. laying in shower letting water hit vagina. I was tickling her feet and she asked me to “tickle her vagina”!!!
spreading her legs & I got grandma to witness
During cross-examination the mother conceded that the child had not said the word “vagina” and that her diary note was inaccurate. The mother contends the child said “gina”. The maternal grandmother was not a witness in the proceedings.
It seems the mother commenced to read child protective behaviour books to the child in or about September 2018 when the child was about three and a half. The mother’s diary note entry for 21 September 2018 notes:
my body belongs to me book … going back to page with man saying “sshh, not to tell”. Said “Daddy does that”
An entry in the mother’s diary for 21 November 2018 notes:
I’m in the bath with her. She used my vagina as leverage to get up & said “I touched her vagina”. “Nevermind”?!! I acknowledged without saying anything & then asked “who touches your vagina? She replied “Daddy does” he likes it.
(As per the original)
During cross-examination the mother conceded that the child had not in fact used her “vagina” as leverage but rather her “pelvic bone”. Given the various parts of the body referred to as “vagina” by the mother, one can only speculate on what the child may have meant when she used that term or responded to questions where that term was used.
The mother contends that the child told her on a number of occasions that the father touched her on the private part; kisses her bottom or asks her to kiss his bottom. Yet on other occasions the child has said the father does not touch her. On 7 January 2019 the mother’s diary noted:
“Daddy doesn’t touch my vagina, my bottom or my mouth. She tried to kiss me & I reminded her that my mouth is a private part as per L Family Services.
(As per the original)
According to the mother’s diary the child made similar statements on 19 January 2019 and on 28 January 2019.
In her trial affidavit, the mother deposed that the child said to her – “Daddy touches my vagina when we are in his bed”. No such entry is contained in the mother’s contemporaneous diary. The mother conceded that her affidavit was inaccurate and that she must not have checked it properly.
There are of course legitimate reasons for a father to “touch” his child’s “private parts” (if that is a reference to her anus or labia) e.g. when assisting with toileting or bathing or applying a soothing cream to relieve irritation and the father concedes doing so. It is certainly conceivable that a parent might kiss the buttocks of their young child in an entirely innocent display of affection. It is entirely unclear what the context of the latter comment may have been i.e. “asks her to kiss his bottom”, and difficult to interpret what it may mean. If, for instance, the child agreed with a proposition such as - “does daddy ask you to kiss his bottom?” – I would not place any weight on the answer. That is because it is a leading question i.e. one that suggests the answer. Young children are notoriously suggestible particularly when the person asking the questions is a parent or other authority figure. There is only one reference to this statement in the mother’s diary and it appears on 12 October 2019. There is no context to the comment and no information about what questions may have been asked, if any. The diary note refers to the mother having contacted the police on this date. The information provided to police by the mother is recorded in the following terms:
The victim [the child] has disclosed to the INF [informant mother] that the suspect [the father] has asked her (the victim) to kiss the suspect’s bottom, that the suspect kisses her on her bottom and that the suspect touches her.
The mother was advised by police to contact a family law solicitor and no further action was taken by the police at that time.
On 17 October 2019, the mother again contacted police and on this occasion the child was interviewed by a female police officer for about 20 minutes and the interview was recorded. It must be observed that the focus of a police investigation is on the possibility of a successful criminal prosecution where the standard of proof is beyond reasonable doubt. The mere fact that police do not lay charges does not determine the broader issue of risk. Even where the evidence is insufficient for criminal prosecution, the police will often refer the matter to the Department for investigation and assessment of any risk to the child.
While the child did make some statements to police that may indicate the father has touched her inappropriately, it is far from clear. There are many inconsistencies in things said by the child and comments that just do not make any sense, which is understandable given that the child was only four and a half years old at the time. The child used some very adult language e.g. the child repeatedly responds to questions by saying – “That’s a hard question”. The child also says on occasions – “That is pretty safe boundaries”, and when asked who has taught her that, she says her mother has. At one point the child says the father does not tell the truth, but this must be considered in the context of the mother admitting that when the child told her something the father had told her (about the child hurting her finger in the car door), the mother said it was not true. The mother also concedes calling the father a “fucking liar” on one occasion in front of the child when the child was very young. The father also refers to a number of occasions when the mother called him a liar in front of the child at changeovers. When asked again about what else the child wanted to tell the police officer about the father, the child said – “He gives me bad food every day”, and described that food as – “Cheese and crackers and … spaghetti and rockmelon and honeydew and watermelon”. This is another issue about which the mother made admissions i.e. telling the child that food the father gave her was not healthy. The examples given by the child of the food she was given by the father do not support the statement made by the child that the father gives her bad food.
When asked directly about how many times the father had touched her vagina or bottom, the child said it happened only once and that he had not touched her under her clothes.
At one point the following exchange occurs:
Police officer: When he’s touched your bottom what’s happened?
Child: That’s another hard questions
Police officer: That’s ok. How did he touch your bottom
Child: He put gloves on and then [inaudible]
Police officer: Ok so what sort of gloves did he put on?
Child: What gloves doctors put on
Police officer: Do you know what colour that they were
Child: Um light blue
(As per the original)
When asked directly what he did after he put on the gloves the child again responded by saying – “that’s another hard question”, and then said variously: that she did not know or could not remember. I note the mother’s admission that by the time of this interview, the child’s genitals had been examined on at least three occasions by doctors. The father denies ever having possession of any disposable or surgical gloves but did volunteer that he had short work gloves that he used on tools or in the garden. He said they were a very dark blue. The father could not recall a time when he had worn the gloves when the child was with him. He said when he was spending time with the child he was not working or gardening. The father contends that he was told on 14 November 2019, by Ms W from the Department, that the child had disclosed to her that the mother told her to say the father had touched her bottom with gloves. I was not taken to any note in the Department records to corroborate the father’s contention although I note that many of the records are redacted and when not redacted contain only summaries.
The child was interviewed by police for a second time on 18 October 2019. Police records note that the mother returned with the child on 18 October 2019 because the child had “more to tell police”. During this second recorded interview the child was interviewed by a male and female police officer for about 20 minutes. When asked why she was there, the child said – “Because I got to tell you about dad”. Before the child says anything about sleeping in the father’s bed the female police officer says – “Ok do you want to tell me all about when you sleep in his bed” The child responds – “He touches me [inaudible] in his bed”. Before the child says anything about the father touching her on her private parts, the police officer asks her – “Ok so you tell me about everything about him touching on your privates parts when your in his bed” (as per the original). As noted in the previous interview the child repeatedly responds to questions by saying – “That’s a hard question”. The child again refers to “safe boundaries” and saying “stop”. After the child says the father touched “it” with his gloves on, she was asked what he touched and the child said –“my bottom”. The following exchange then occurs:
Police officer: Can you tell us a big more about the gloves, what can you tell us about the gloves
Child: That’s a hard question.
Police officer: Is it You mentioned that they were daddy’s gloves, what do you mean by that
Child: The doctor gave it to him to keep.
Police officer: Oh ok, can you tell us a bit more about that
Child: That’s a hard question [inaudible].
Police officer: How did you know the doctor gave it to him?
Child: Because I saw him.
Police officer: You saw the doctor give them to him. Ok. So you were at the doctors when he gave him the gloves
Child: Yes.
Police officer: What did the doctor say to do with the gloves
Child: Um that’s a hard question.
Police officer: It is a hard question. So did you hear what the doctor said
Child: Yes.
Police officer: OK.
Child: But I just don’t remember that.
(As per the original)
There is no evidence that the child attended at the doctor with the father and, in particular, that a doctor gave any gloves to the father. The latter seems highly improbable.
Returning to the police interview, the child tells police about many fun things she does at the father’s home and says there is nothing she does not like about going to the father’s house.
After the interview, the mother said she had to pull her car over so that the child could vomit.
Subsequent to the child’s interview with police, the father voluntarily took part in a police interview and denied the allegations he had sexually abused the child. No charges were laid.
Ms W from the Department conducted an investigation of the allegations made by the mother and as part of that process interviewed the child, the father, the mother, the maternal grandmother, the paternal grandmother and obtained information from the child’s day care, the police and obtained a health report.
During Ms W’s interview with the child on 5 November 2019, the child said that her favourite colour was blue. She said the father touched her private parts, her vagina and bottom. She said she slept in the father’s bed and that they both had clothes on. When asked if she had any worries, the child said she worried about her bottom and vagina because – “Daddy always touches” – and when asked – “Always?” the child responded – “All day”. When asked if that really happened the child did not answer and when asked again the child said – “Yes it happened like I said it did”.
During an interview with the maternal grandmother on 5 November 2019, the Department records note her referring to the child masturbating when she was about two years old and saying that the child “had wand between her legs”. The maternal grandmother said she told the mother it was normal. The maternal grandmother expressed surprise about what was being alleged about the father and suggested that maybe he might have applied cream to the child. The maternal grandmother noted that the mother was trying to protect the child she “had waited 42 years for”.
When interviewed, the father admitted that the child slept in his bed and told Ms W that the child cried if he said she could not. He also admitted changing the child’s nappies for years. The father accused the mother of making false allegations. The paternal grandmother described the father as the perfect father who loves the child and would do anything for her.
In a second interview with the maternal grandmother, she disclosed that the mother had suffered an adjustment disorder because of the marriage which was “rocky” and that after the birth of the child, there were “huge changes of moving and adjusting to motherhood”. She further disclosed the mother had suffered some depression and she had had to call the ambulance as the mother was not coping. The maternal grandmother described the mother as having “moments when she’s tired” and “feels things are not in her control”. Significantly, she noted that the child “picks up on words”.
The outcome of the Department’s examination was “unsubstantiated. Child not in need of protection” and the “family risk evaluation” was assessed as “low”. The rationale for the outcome included the following comments:
There is concern that [the child] has been coached by her mother who is hyper vigilant about sexual interference of [the child]. Based on the evidence provided there are no immediate safety concerns identified at this time.
What are noted as complicating factors include the following:
[The child] is four years of age and she is speaking about her father touching her on the vagina and bottom and not being able to point to her part of the body where her Daddy has touched her.
[The child] stated her mother told her to tell Police and Child Safety and day care.
There is ongoing Family Law Court and the reports from police and day care is that there is animosity between the parents …
There is concern that [the mother] is turning [the child] against her father …
[The mother] has been diagnosed with adjustment disorder
In the assessment of future harm the Department records include the following:
…
Based on the evidence provided by the subject child … told Child Safety her mother told her to say that her Father touched her on the vagina. [The mother’s] own mother does not believe sexual abuse had taken place between [the child] and [the father] … the Day Care expressed concern at the level of adult exposure [the mother] is stating in front of [the child] such as [the child] saying to Day care staff that “Daddy is nobody”. The Day care also had concerns around the truthfulness of [the mother’s] claims around sexual abuse. [The father] has no criminal history or mental health or drug history or history of sexual offences. The feedback from [the paternal grandmother] is that [the father] has not experienced any abuse in his childhood. [The child] is linked to both parents, [the mother] and [the father] and has a strong support of maternal and paternal grandparents and is visible in the community at Day care.
In a letter sent to both parents dated 19 November 2019, Ms W said among other things:
…
… the outcome is Unsubstantiated – Child not in need of protection. This means that I do not believe that [the child] based on the evidence, has suffered significant harm.
I also believe that [both parents] … are currently willing and able to ensure the safety, belonging and wellbeing of [the child]. … Supported overnight contact between [the father] with [the child] is supported in the presence of another safe adult or either of [the paternal grandparents] to prevent future allegations from arising not because [the father] is assessed to be a risk to [the child].
An order was made in the Federal Circuit Court of Australia (as that court was then known) on 9 March 2020 for the father’s time with the child to be supervised by his parents. Supervision continued until 8 March 2021.
On the 3 April 2020 the mother’s diary entry notes:
“daddy doesn’t touch me anymore”.
On 7 October 2020, Ms F made a mandatory notification to the Department as a result of the child saying to her the day before that while she was on the trampoline –“Daddy tickled my vagina”. Notwithstanding this statement, Ms F recommended to the mother, later in 2020, that the parents take it in turns to bring the child to her appointments. This recommendation was not passed on to the father.
The mother has interacted with Ms F on approximately 18 occasions since the child commenced counselling in July 2020 and the father has spoken to Ms F by telephone on four or five occasions.
In January 2021, Ms F did not consider that increased psychological support for the child was necessary as the child was not presenting with any significant difficulties. There was a break in the child’s appointments for a number of months.
When Ms F next saw the child in April 2021, the child said – “sometimes dad does things I dont like” (as per the original) – and, on questioning, said – “he still touches my private parts” – and when asked when, the child said – “still today”. When reminded that she had not seen the father that day the child said – “he did it a long time ago when we were on the trampoline”.
In Ms F’s notes of her session on 2 July 2021 she reports that the mother told her a number of things as follows:
transition not going well
“she is clingy and exhausted”
“says she is sad”
“everyone needs to share me”
In ph calls with dad she counts down to days to see him
teary when she separates from us
“takes week and a half to get her back to normal, then she has to leave again”
sugg cont to support communication and emotional support, its challenging, but you can do it”
More statements “dad touches my vagina in the bath”
“my vagina is interesting” was at pool and pulls swimmers across and said
…
(As per the original)
While giving evidence, Ms F stressed on a number of occasions, that her role was a therapeutic one and not a forensic one. The difference is of course significant. In a therapeutic role a psychologist generally accepts what they are told, whether true or not, on the basis that it is the client’s perceptions that are relevant. In a forensic role, a psychologist would be expected to interview widely and review all relevant material before expressing an opinion. While understandably and appropriately reluctant to express a view about whether or not she thought the child has been sexually abused by the father, when pressed, Ms F indicated that in the context of what she knew, she thought the child had been sexually abused and she did not think the mother had coached the child to make the statements indicative of sexual abuse.
Ms F made two mandatory notifications to the Department as a result of things said to her by the child. The first occasion was on 7 October 2020 and is referred to above. The second occasion was on 2 August 2021 and arose out of comments made by the child to Ms F on 31 July 2021. Ms F’s notes record the following:
…
[The child] disclosed “Dad still touches me when I visit him, every time”
Limited enquiry: she reports it’s happens in her bedroom, “I tell him to stop but he doesn’t”, “it makes me sad”
Read My Body Rules book with [the child] to reiterate the rules. She says she knows what he is doing os wrong “because it is my private parts”, “he tells me to keep it secret, but I dont”
[The child] reports she has told he[r] teacher and now told me
…
(As per the original)
On 4 August 2021, Ms F had a FaceTime call with the mother and the child. Ms F’s notes record the following:
Advised [the child] that after what she told me in session, because it is my job to keep her safe and not keep secrets, reminded her of the book we read. Advised her that I told Mum and Police what she told me, and now the Police may want to come and talk to her and ask her some questions.
Reminded her that the Police are safe people to talk to and they are there to help us, to just tell the truth she responded “I always do”. I asked how she felt about that and she responded “happy”
The family report writer, Ms Y, opined that instructing a child to “tell the truth” can be problematic. “Children can have difficulty determining what this means; (e.g., who’s truth?, truth about what?). It is preferable to request that a child speaks only about what they experienced in concrete terms (e.g., what they saw, heard, felt)”. Further, Ms Y opined that while encouraging safety behaviours with children and reinforcing to children that they should tell trusted adults is appropriate, in this particular case, such encouragement may “reinforce repetition of statements that have previously provided [the child] with attention”. In this context Ms Y noted that the child told an interviewing police officer that she had kept a toy given to her because it was a reminder of an earlier interview. Ms Y also opined that “[e]xposure to repeated questioning and retelling can reinforce a false belief which can lead to emotional harm”.
The child was interviewed for a third time by police on 5 August 2021. The interview was again video recorded. According to police records, the child kept repeating the broad statement that the father touches her private parts but was unable to particularise what actually happens or how he touches her. The child identified her private parts as including her vagina, bum, lips and chest. The child said it happened every time she went to her father’s home and happened on the trampoline. No offence was identified and no action was taken by police.
The father concedes that while on the trampoline with the child he would touch the child in play or by accident but denied his touch was in any way sexual in nature. He denies touching the child’s vagina.
On 6 August 2021 the mother sought to increase the child’s attendances upon Ms F but this did not occur as Ms F did not consider the child needed more frequent sessions unless her behaviour changed or she became distressed.
The father last saw the child on 8 August 2021 save for the family report interviews that occurred on 15 October 2021. On that occasion the child was very happy and content with the father, spontaneously hugging him and seeking physical interaction. “She showed no signs of fear, reticence o[r] discomfort in her father’s presence”. When she returned to her mother the child was crying and immediately sought comfort from her mother and spoke about feeling sad because she “never gets to see” her father and had not seen him in “so long”.
Ms Y prepared two family reports in this matter. The first is dated 23 September 2020 and the second is dated 31 October 2021. Ms Y obtained a Bachelor of Arts with a major in psychology in 2007, a Postgraduate Diploma in Psychology in 2008, a Master of Professional Psychology in 2013 and a Master of Psychology (Clinical) in 2017. Ms Y worked as a provisional psychologist from 2013 and has been employed as a clinical psychologist and consulting child inclusive expert since 2017. Ms Y’s interviews for the second family report took place on 15 October 2021. Ms Y noted that during her interviews and during s 93A interviews that she watched, the child “appeared to engage in sensory seeking behaviours, primarily for light touch and proprioception” e.g. she pressed her body into the chair/floor, lifted a weighted pillow and balanced it on her head for an extended period, sat with her knees tucked under herself, sucked and fidgeted with a necklace, rubbed different textured fabrics and rubbed soft fabric against her lips and face. Ms Y noted that the maternal grandmother said that the child had always been a “sensory seeking child”. Ms Y opined that “sensory processing difficulties can be causal for issues like fatigue, emotional dysregulation and social/emotional immaturity as a result of cognitive overload”. Ms Y also noted that the child “has experienced difficult emotions and confusion arising from cessation of time, and uncertainty about future time with her father”.
Due to the heavy workload experienced by the Department, an investigation about Ms F’s October 2020 notification was not conducted until August 2021.
Ms E (the child safety officer who conducted the recent investigation for the Department) informed the Court that in the office of the Department in which she works there is a considerable backlog with 100 outstanding notifications yet to be investigated. Obviously, that is a most unsatisfactory situation. Ms E is a very junior social worker having obtained her social work degree in June 2019. She commenced employment with the Department upon graduating as a child safety officer. Ms E has no relevant prior working history. It seems somewhat remarkable that such a junior person would be allocated the responsibility of investigating and concluding an outcome with such serious consequences for a child (notwithstanding the availability to call upon more senior persons for advice). Ms E informed the Court that she has had the “carriage” of “approximately 10 plus cases involving sexual abuse” in the past “10 months (roughly)” and has overturned “unsubstantiated” outcomes in a number of her investigations.
As part of her investigation, Ms E and another child safety officer interviewed the child at her home on 19 August 2021 for approximately 30 minutes commencing at 3.50pm. An interview with a child would not normally occur at her home, given the preference for a neutral location, but in this instance it was considered the best available option given the distance between Ms E’s office and the child’s home.
Unlike police interviews, there was no recording of the interviews conducted by Departmental officers. Ms E said that she typically takes notes at the time of the interview and prepares a summary for Departmental records after the interview. The redacted and unredacted versions of the 19 August 2021 interview with the child were tendered into evidence. When the child was asked why she thought she was being interviewed, the child replied – “Because Ms F and the lawyers told you something”. The reference to “Ms F” is a reference to Ms F. It is unclear why the child would have any knowledge of any lawyer involvement. It may indicate her exposure to other conversations about the matter. The summary thereafter includes the following statements attributed to the child:
[When asked if there was ever a time she felt worried] – “No, just at my Dad’s, because he touches my privates”
[When asked where she is touched] – “My privates” [points to vagina]
[When asked how often this happens] – “Every time I see my Dad”
[When asked when was the last time it happened] – “It happens every time, in [sic] the trampoline”
[When asked about the touching being on top of clothing or underneath] – “On top of my clothes and my bum”
[When asked about secrets] – “He asks me not to tell people he touches my privates”
The summary also includes observations that the child became “withdrawn and hypervigilant/fidgety” when “discussing her father or the disclosures made in relation to sexual abuse”. The child was also observed to “jump and run around the room and actively try and change the conversation” and that when she did make “disclosures” she was observed to “sit on the ground … rock backwards and forwards”. Ms E found these behaviours to be of significance in her conclusion that the child was at risk from the father.
I note that in the recent family report, Ms Y refers to her conversation with Ms F who noted that during her sessions with the child, she initially presented with self-soothing behaviours such as sucking her fingers and carrying security toys, and more recently she had observed the child to rock back and forth and touch her pubic area briefly over her clothing. Ms F opined that these behaviours seem to occur when the child is emotionally dysregulated. Unlike Ms E, who found the child’s behaviour when “disclosing” to be consistent with a disclosure of abuse, i.e. rocking back and forth, Ms Y said that during her discussions with the child she was “neither hyperactive or withdrawn when discussing the alleged statements or concerns about her father. She sat and drew pictures for 40-minutes”. Ms Y could not account for Ms E’s conclusion that the child is “exhibiting cumulative emotional harm” and in her view, “[g]iven the parenting arrangements, co-parenting conflict, and her adjustment to overnight time with a non-resident parent at a very young age, these factors being sound suggests resilience”.
After the interview with the child, Ms E and the other child safety officer interviewed the mother at 4.20pm. It is unclear where the child was during this interview. The mother told Ms E that “recently” while the child was at swimming “[s]he made her body into a ‘bridge’ (body bent over backwards, on feet and hands) and she pulled her swimmers aside at the crouch [sic], asked her mother, ‘do you think my vagina is interesting’?” The mother also provided other information, including about her relationship with the father; about him giving the child junk food; about him calling the police on her twice saying she was suicidal; about him withholding sex from her; about him strangling her; about the father only having sex with her when he was drunk and about his parents being dismissive of the father’s “actions”.
On 2 September 2021 at 3.40pm Ms E and another child safety officer (a different officer from the earlier interviews) interviewed the father at his home. A summary by Ms E of that interview includes information received from the father that the maternal grandmother and her husband are “really good people”; that he had been punched, kicked and bitten by the mother during the relationship; that he had called the police three to four times; that the mother used to scream at him; that they slept in separate bedrooms; that he spent a lot of time at work or sleeping in his car; that the mother had endured a difficult birth and that the child had suffered with reflux that resulted in her crying for up to 15 hours a day.
Unlike the earlier investigation conducted by the Department, Ms E did not interview the maternal grandmother. She did, however, interview the paternal grandmother.
In concluding that there was a substantiated risk of emotional abuse from continuing sexual abuse by the father, Ms E was of the understanding that the following factors were accurate:
(a)The child had been making “clear, repeated disclosures” since the age of two;
(b)The child had been engaging in “inappropriate sexual behaviour” since she was two years of age e.g. pulling her swimmers aside at “crouch [sic]”; asking adults “Do you think my vagina looks interesting?”; inserting objects into her vagina;
(c)The child’s behaviour during the interview on 19 August 2021 could not be explained other than as consistent with abuse having occurred;
(d)The father engaged in “minimising behaviours” and his “responses in interview are suggestive of deflection” and a “manipulation tactic”;
(e)The father’s “accumulation of behaviours” during interview suggest grooming behaviours of the child and other adults including the paternal grandmother.
The factors relied upon by Ms E are either wrong, simplistic, unreliable or unreasonable.
Firstly, while there have been statements made by the child that may indicate sexual abuse by the father, the statements must be considered in the context of the whole history as set out earlier in these reasons. While I accept that a statement by a child that her father “touches [her] private parts” with a corresponding demeanour indicating worry, would be cause for concern, the context is very important. It is incorrect to conclude that such statements are “clear” disclosures of sexual abuse. There are numerous circumstances where a parent may “touch” a child’s private parts in an appropriate way while attending to the child’s care e.g. after toileting or in the bath.
Secondly, Ms E was mistaken in her understanding about the nature of the child’s behaviours. The child has never inserted anything into her vagina. Further, the incident involving the child’s swimmers was a one off incident witnessed only by the mother in about July 2021 and not by other adults. The other behaviours of the child e.g. saying “boobies”, kissing toys, touching her labia etc., all fall within the ‘normal’ and ‘age appropriate’ behaviours according to the behavioural tool relied upon by Ms E.[19] Ms Y did not assess the child’s reported behaviours as “outside the limits of developmental norms”.
[19] “Sexual Behaviours Traffic Light Tool” – described as an innovative resource based on the original Traffic Light Framework’ developed by Family Planning Queensland and adapted for use within the United Kingdom.
Thirdly, the behaviour witnessed by Ms E during the interview with the child on 19 August 2021 must be considered in the context that for the last four years this child has been subjected to police interviews, Departmental interviews, family report interviews, medical examinations, repeated discussion about safe boundaries and considerable focus on this child’s genitalia. Further, the child could be in no doubt that her mother does not trust the father and considers him to be a liar whom the child is not safe to be around. Indeed, during her evidence the mother described the father as a “covert narcissistic sociopath”.
Fourthly, the fact that the father denied the allegations of sexual abuse cannot be fairly described as “minimising behaviours”. The father maintains he did nothing wrong. Nor can the father’s attempt to provide context or an alternative understanding for the child’s statements, be fairly dismissed as “deflection” or a “manipulation tactic”. The fact that the paternal grandmother expressed similar views to the father is not an example of the father grooming the paternal grandmother. To so conclude would be to deny the paternal grandmother any agency and invite an inference that she would stand by while her granddaughter was abused.
It seems that Ms E approached her investigation with a presumption that sexual abuse had occurred and this belief permeated how she conducted the investigation e.g. she did not interview the maternal grandmother despite her significant involvement in the child’s life, and Ms E’s presumption clearly influenced the inferences she drew and the conclusions she made.
Of course, Ms E did not have the benefit of all of the evidence that is before this Court and did not have the benefit of hearing the evidence tested during cross-examination.
Conclusion about risk of sexual harm
I conclude that the father does not pose an unacceptable risk to the child of sexual harm. In summary my reasons for so concluding are as follows:
(a)The concerns about sexual abuse first arose in a context of innocent comment and behaviours (reference to “boobies”) which on the professional guidelines[20] utilised by the Department fall within the “green light” behaviours i.e. normal behaviours;
[20] Ibid.
(b)The mother received the initial information from the child in the context of being a highly anxious and hypervigilant mother;
(c)The child’s ongoing observed behaviours fall within age appropriate “green light” behaviours;[21]
[21] (n 19).
(d)The mother’s disdain for the father is likely to have caused her to more readily interpret things in a sinister way;
(e)The mother has repeatedly exposed the child to her negative views about the father including:
(i)That the father is not to be trusted;
(ii)That he is a liar;
(iii)That the child is not safe with him; and
(iv)That he feeds her bad food.
(f)The mother demonstrated throughout her evidence that she has no insight into the impact her statements about the father can have on the child e.g. the mother thought that because she did not use the word “liar” the child would not interpret her words in that way;
(g)The child is aware of her mother’s disapproval of her spending time with the father as evidenced by the child’s demonstration to Ms Y of the face the mother pulls at changeover;
(h)The child’s kindergarten expressed concern about the mother’s exposure of the child to her negative views of the father and reported the child referring to her father being “nobody”;
(i)According to the maternal grandmother, the child “picks up on words” and this may explain the child’s statements that the father has touched her “vagina” or “private parts” or told her to keep a “secret” in circumstances where this was a repeated topic of conversation and focus;
(j)The child’s description of the father as happy and her mother as mostly happy but sometimes disappointed in her, is an indication that the child does not see the father as someone to be fearful of and her reference to her mother being disappointed in her may be an indication that the child feels under some pressure to say what she may perceive to be her mother’s “truth”;
(k)The child has been exposed to conflict between her parents from a very young age. It is notorious that exposure of children to conflict can have adverse consequences for a child and may well explain many of the behaviours observed by the mother e.g. self-soothing behaviours;[22]
[22] I note that Ms E agreed that self-soothing/masturbation behaviours can be a normal response by a child aware of tension between her parents.
(l)Dr O (who provided counselling to the parents and warned them about the adverse consequences of continuing to expose the child to conflict) opined to the parents that things said by the child after returning from spending time with the other parent must be considered in the context of her exposure to conflict;
(m)The child has been taught by the mother that no one should touch her “private parts” without exception e.g. for appropriate care giving;
(n)The term “private parts” is understood by the child to include not only her genitalia but also her mouth and her chest. Accordingly a statement that her father touches her “private parts” may be accurate but not indicative of anything inappropriate;
(o)The mother has used the term “vagina” interchangeably to refer to the labia, the mons pubis and even the pelvic bone. Accordingly, a statement by the child that the father touches her vagina is not a clear statement of abuse;
(p)Statements made by the child are not only equivocal but inconsistent e.g. she has said he does and does not touch her private parts; she has said he touches her all the time and on other occasions that it was only once;
(q)If the statements made by the child are interpreted as disclosures of sexual abuse by her father, then her statements that the paternal grandparents were on occasions present, (they supervised the father’s time for about a year) invite the improbable inference that they stood idly by while she was abused;
(r)The father concedes touching the child’s private parts in the context of appropriate care e.g. toileting, applying soothing cream, bathing. He also concedes that when he carries the child his hand “goes under her butt”. Accordingly, a rejection of sexual abuse does not require a finding that the child has lied or that the mother has fabricated or coached the child to make “disclosures”;
(s)From a very young age, the child has been repeatedly exposed to ongoing discussion about sexual touching and “safe boundaries” and “good and bad touching” and “secrets” and “telling the truth”;
(t)The child’s genitalia has been the focus of her hypervigilant and anxious mother for years and can perhaps explain the recent question by the child to the mother – “Is my vagina interesting?”;
(u)The child has had at least three genital examinations and was present when the mother underwent a ‘pap smear’;
(v)The child has been interviewed by police on three occasions and by the Department on two occasions i.e. she has been the focus of a lot of outside attention;
(w)Despite an apparent willingness to talk about the allegations with police i.e. the child has not presented as embarrassed, shamed and/or responsible (as some victims of childhood sexual abuse do), the child has not been able to particularise any abuse despite her “increased cognitive and language development from age 4y, 8m (initial 93as) to 6y. 5m (recent 93a)” (as per the original);
(x)The child’s observed behaviours e.g. rocking back and forth, may well be examples of her sensory seeking behaviours which Ms Y opined “can be causal for issues like fatigue, emotional dysregulation and social/emotional immaturity as a result of cognitive overload”;
(y)Ms Y’s observations of the child’s interaction with the father indicated nothing remarkable. The child and father appeared to have a loving affectionate relationship with no sign of fear or discomfort displayed by the child. The child expressed her love for the father and spoke of her sadness about not seeing him. The child said that her choice would be to spend “12 days with mum and 12 days with dad so it would be fair”, which Ms Y opined was likely a reflection of the child’s strong attachment to each of her parents;
(z)Ms F observed that once the child “realised that it was okay for her to speak about her father” she talked about the fun and enjoyable activities she had with her father;
(aa)Ms E’s substantiated outcome of emotional harm from ongoing sexual abuse should be rejected because it was based on a misunderstanding of relevant evidence and on unreasonable inferences. Departmental records should be amended to accord with earlier unsubstantiated outcomes;
(bb)The father has no history of drug or alcohol abuse, mental illness, criminal offending or sexual abuse allegations (other than in the present case);
(cc)The father has the love and support of his parents who were supervisors of his time with the child from March 2020 until 8 March 2021;
(dd)The paternal grandfather impressed as a caring and loving grandfather who would not fail to protect his granddaughter;
(ee)The paternal grandmother was not required for cross-examination but her affidavit depicts a caring and loving grandmother who would not fail to protect her granddaughter;
(ff)The child’s school has not raised any concerns about the child’s presentation or behaviour, in particular, after weekends with the father.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF EMOTIONAL HARM ARISING FROM HIS ALLEGED DENIGRATION OF THE MOTHER TO THE CHILD, AND/OR EXPOSING THE CHILD TO CONFLICT, AND/OR UNDERMINING THE MOTHER’S PARENTING CAPACITY?
In determining this issue I note that the mother’s main focus related to the recordings made by the father and how the father’s statements in those recordings support her proposition that the father poses a risk of emotional harm. The mother also relies upon a number of comments made to her by the child upon her return from spending time with the father.
The father engaged in a pointless exercise of recording all of his encounters with the mother and on many occasions recorded his self-serving commentary about the mother on his way to changeovers. Sometimes the child was in the car with him although the father would have the Court believe she was always asleep. How he would know that when he is driving and she is in the back seat remains unclear.
The initial trial was adjourned because of the father’s late disclosure of about 80 hours of recordings. The father’s rationale for the practice was to protect himself from false allegations by the mother. That does not explain his practice of recording his commentary. For example on 8 March 2020 when the child was in his car (but according to the father she was asleep) the father referred to the mother as a horrible person who was saying ridiculous things about him.
There certainly was a potential for the child to be exposed to the father’s views about the mother if she was in the car and awake, and the father would have been well advised to heed the sage advice from his father to cease this practice and engage with the mother in a civil manner. However, whatever the child may or may not have heard from the father’s recordings, there is no evidence that it has detrimentally affected her relationship with the mother.
The child’s comments to the mother need to be considered in the context of the child’s long exposure to the conflict between her parents, as explained to the parents by Dr O.
There is a risk that the father’s conduct of making unflattering statements about the mother in front of the child, if repeated, could emotionally damage the child, but I do not find that risk to be unacceptable. I am satisfied that the father has realised the folly of his conduct and accepts it would be unwise to repeat it.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF EMOTIONAL HARM TO THE CHILD ARISING FROM HER ALLEGED ENCOURAGEMENT OF THE CHILD TO MAKE FALSE ALLEGATIONS AGAINST THE FATHER AND/OR HER ALLEGED DENIGRATION OF THE FATHER TO THE CHILD AND/OR HER ALLEGED EXPOSURE OF THE CHILD TO CONFLICT?
The father contends that the mother is unable to truly accept that he does not pose an unacceptable risk of sexual harm to the child and that she encourages and/or coaches and/or influences the child to make statements which implicate him in possible sexual abuse. I can understand the father’s perspective given the inconsistencies in the mother’s position. However, the mother has previously accepted advice to reinstate the father’s time with the child after investigations have concluded in the past and even with the current Departmental assessment the mother is not pressing for a finding consistent with that made by the Department.
It is the mother’s case that in the face of behaviour and comments that might indicate abuse she has sought advice and acted upon it. I accept that the mother was advised to keep a diary of any concerns she had about the child’s behaviour and ‘disclosures’. The mother has engaged a psychologist with the father’s agreement and has regularly taken the child to her sessions.
In my view the mother genuinely wanted to get to the bottom of the concerns she had i.e. to try to find out one way or the other what the child’s behaviours and statements might mean. The mother is clearly open to explanations other than sexual abuse. It has to be observed though that the mother was still viewing the information through a prism of intense dislike of the father which was likely to colour her interpretation of things. The mother explains her vigilance as simply being a “first time mum” who was unsure if what she was seeing or hearing was normal. Ms Y, the family report writer, has assuaged many of the mother’s concerns and her opinion that many of the behaviours noted by the mother in her “sexualised behaviour diary” were developmentally normal e.g. talking about “boobies”.
During his oral evidence the father appeared to steadfastly believe that the mother had intentionally coached the child to make statements implicating him in inappropriate touching. The father’s written submissions admit of an alternative finding, namely, that the statements have come about with the mother’s passive encouragement in the context of her being a first time anxious mother.
The mother conceded that she had said a lot of things she was not proud of and regretted many of her actions. I accept the mother’s evidence that she did learn a lot from Dr O about improving communication but clearly the mother needs to put that advice into practice more often. One example of the mother’s failure to appreciate the impact of her conduct concerns her telling the child that what the father says on certain topics is not true i.e. the father is a liar. The mother seemed to think that just because she did not use the word “liar” that message would not have been conveyed to the child. Such messages directly place the child in the middle of conflict and cause her to experience divided loyalties.
The mother engaged in a practice of undermining the father by questioning the child about the food she ate at the father’s home and commenting that the food was unhealthy.
While a risk or harm certainly remains, I do not find the risk to be unacceptable. I must also take into account and balance the risk of harm from the mother with the risk of harm being removed from the mother’s primary care. The child understandably has a very secure attachment to her mother and such a change would be extremely disruptive not only because it would mean removal from her primary carer but also because it would involve a change of school and friends and lifestyle. I would only consider such a dramatic change if I considered the risk to the child was unacceptable.
DO THE PARENTS HAVE THE CAPACITY TO SUPPORT AND FACILITATE THE CHILD’S RELATIONSHIP WITH THE OTHER AND TO CO-PARENT?
Each parent displayed considerable loathing for the other throughout the trial. Indeed the mother’s views of the father included that he was a liar, manipulative and a “covert narcissistic sociopath”. The father’s candid opinions of the mother were captured in his many recordings of himself where he referred to the mother as crazy, horrible and ridiculous.
In the past, the parents have engaged in joint counselling to address their poor communication and to assist them to gain insight into the damage they cause to the child by involving her in their conflict. The parents do not seem to have consistently put into practice what they have learnt. They need to do better and would be well advised to recommence joint counselling as soon as possible. They have a chance to repair the damage already caused to the child they both profess to love, and they should put aside their petty point scoring and work on rebuilding a functional relationship for their child’s sake.
There is, however, some cause for optimism. Both parents advocated for equal shared parental responsibility if neither parent was found to pose an unacceptable risk of harm to the child. They have demonstrated some capacity for compromise in the past. Although the mother relocated with the child from Brisbane in 2017, the father did not press for her return. The parents agreed to defer the child’s commencement at preparatory school. Perhaps most importantly, despite each parent’s poor view of the other, the child has a wonderful relationship with each of her parents. It seems unlikely that the child could have maintained those positive relationships without some capacity from the other parent to facilitate the relationship. The child has not seen the father since 8 August 2021 (apart from the family report interview in October 2021) but the mother was able to acknowledge that the child missed the father and would really like to see him.
Accordingly, I find that the parents do have the capacity to support and facilitate the relationship with the other parent and, with commitment and focus, they have the capacity to co-parent to the extent required.
WHAT PARENTING ORDER IS PROPER GIVEN THE FINDINGS MADE?
I have found that neither parent poses an unacceptable risk of harm to the child. It is not in dispute, in those circumstances, that the child should continue to live primarily with the mother and spend alternate weekends with the father. Their positions are understandable given that with the distance between the parent’s homes it is not practicable for the child to spend equal time with her parents. That said, the mother was not averse to the father increasing his time with the child if he lived closer to her.
The child has lived primarily with the mother since the parents separated in 2016. The child has spent varying amounts of time with the father and there have been occasions where she has not seen the father for extended periods. The child is nevertheless comfortable and secure with both parents. The father acknowledges that the mother is attentive to the child and has a strong bond with her.
On 9 October 2017 the parents reached agreement on a ‘final’ parenting order including changing the child’s surname to incorporate both parents’ surnames. It is not entirely clear to me why that order could not be reinstated but all parties relied upon a fresh minute of order, much of which was a restatement of the 2017 order.
Substantial and significant time is defined in the Act and includes days that fall on weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the daily routine of the child and days that are of significance for the child and the parent. Achieving substantial and significant time will not be practicable unless the father spends time with the child on his rostered days off which I understand occur on some Mondays. Accordingly, I propose to order that the father spend time with the child on alternate weekends from Friday until Sunday but to be extended to Mondays if that is a rostered day off for the father. He will then be able to take the child to school on the Monday morning and be involved in her schooling activities to the extent possible e.g. he may be able to attend as a volunteer at tuck shop. The father will also spend half school holidays with the child.
Both parents also seek an order for equal shared parental responsibility, in the event that neither parent is found to pose an unacceptable risk of harm to the child. The ICL recommends an order for sole parental responsibility to the parent with whom the child is living primarily. The presumption that equal shared parental responsibility is in the child’s best interests applies in this case. The presumption can be rebutted if it is determined that such an order is not in the child’s best interests. The ICL relies upon the history of poor communication between the parents to support the recommendation.
An order for sole parental responsibility, if made, will apply in relation to decisions concerning major long-term issues (as that term is defined in the Act). It will not relieve the parents of the need to communicate about other issues concerning the child from time to time. The fact is the parents have managed to agree on some major long-term issues despite their poor communication e.g. delaying the child’s commencement at preparatory school, and augers well for the prospect of them being able to make major long-term issues in the future. Further, there is no suggestion that the parents are likely to disagree about schooling or about religion and the child has no known health issues.
In my view, it is in the best interests of the child to accede to her parents’ joint proposal that they have equal shared parental responsibility and I will so order.
Each party had the opportunity to make submissions about the specific issues orders proposed by each other party including the ICL. I intend to incorporate those parts of each party’s proposed order which I consider will best meet the child’s interests.
MISCELLANEOUS
The father paid the full cost for the preparation of the two family reports with liberty to seek a contribution from the mother at the trial. One half of the cost is $4,840.30 and the father is content to provide the mother 90 days to pay. The father has privately funded his legal expenses of at least $125,000.
The mother resists any order for her to contribute to the costs of the family reports. She contends that the father agreed to pay for the family reports in order to secure trial dates and given the mother’s straightened financial circumstances she contends she does not have the capacity to pay. In support of this contention the mother notes that her legal representatives appear for her on a pro bono basis.
In my view, the mother should reimburse the father for one half of the costs for the following reasons:
(a)While the father did agree to pay for the family reports in order to secure the earliest trial dates, it was on the basis that he could seek a contribution from the mother at trial;
(b)The father has been meeting the full cost associated with the child’s attendance upon her psychologist, Ms F, upon whom she has been attending since 2 July 2020;
(c)The mother is employed, although her hours vary from 15 hours to 45 hours per week;
(d)The mother estimates her average income from employment at $370 per week and she receives a further $661.72 in government benefits and child support payments;
(e)The mother has an investment which she values at approximately $3,800 and a balance in her bank account of about $2,000;
(f)The mother has equity in her home of about $400,000 and has a capacity to borrow.
However, I consider it reasonable to allow the mother six months to pay the sum required.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 31 January 2022
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