Ganley and Ganley

FAMILY COURT OF AUSTRALIA

GANLEY & GANLEY

[2009] FamCA 641

FAMILY LAW – CHILDREN – BEST INTERESTS – whether male child 4-5 years at time of disclosures/alleged disclosures had been sexually abused by paternal grandfather and/or father – subject matter of disclosures inherently unlikely – findings made that sexual abuse did not occur and there is no unacceptable risk of sexual abuse occurring – whether physical abuse by father – child not in need of protection while with father and members of father’s extended family – mother’s enmeshed relationship with child – whether a need to protect child from emotional abuse by mother or maternal grandmother – whether coaching as to sexual abuse disclosures – whether mother treating child as if younger than his years – child’s infantile regression – orders made for child to spend substantial and significant time with each parent – ten nights with father and four nights with mother during school terms – half holidays with each parent – parties to have equal shared parental responsibility – child not to spend time alone with maternal grandmother

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

APPLICANT:

Mr Ganley

RESPONDENT:

Ms Ganley

FILE NUMBER:

BRC

2670

2008

DATE DELIVERED:

22 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

1, 2, 3, 4, 5 and 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fleetwood

SOLICITOR FOR THE APPLICANT:

Family Law Solutions

COUNSEL FOR THE RESPONDENT:

Mr Crisp

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Drysdale

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

Legal Aid Queensland

Orders

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for … born … September 2002 (the child) in relation to the major long term issues concerning him, namely his education both current and future, religious and cultural upbringing, health and any changes to his living arrangements that may make it significantly more difficult for him to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility, the parties are to consult each other in relation to the major long term issues concerning the child and make genuine effort to come to joint decisions.

Living arrangements

First month

The child live with the father from today until Thursday 20 August 2009 and during that period spend no time with the mother and during that time have no contact with or communication with the mother.
The mother must deliver the child today to the Child Dispute Resolution Services area of the Family Court of Australia Brisbane for changeover to occur today under the supervision of Mr H, Regional Coordinator, Child Dispute Services, who may if he considers appropriate explain to the child the effect of these orders.

School terms

Commencing on Thursday 20 August 2009 the child live with the mother for four nights in each fortnight and with the father for ten nights in each fortnight to commence as follows:
(a)the mother from after school on Thursday 20 August 2009 until before school on Tuesday 25 August 2009, with the mother or her nominee to collect the child from and deliver the child to school on those days respectively;
(b)the father from after school on Monday 24 August 2009 until before school on Thursday 3 September 2009, with the father or his nominee to collect the child from and return the child to school on those days respectively;
and subsequently continuing in that sequence, to recommence on Thursday in the first week of each school term regardless of whether the child has spent the second half of the school holidays with the mother or the father.

School holidays

During school holiday periods:
(a)the fortnightly cycle be suspended;
(b)the child spend the first half in even years and the second half in odd years with the mother and the second half in even years and the first half in odd years with the father;
(c)the first half commence after school on the last day of the school term; the second half commence at 9am on the middle day of the school holiday period or if no middle day at 9am on the day following the midpoint and end on the morning of the first day of the school term.

Special days

If the child is not already spending time with the mother on Mother’s Day, he spend time with her on that day from 9am until 5pm.
If the child is not already spending time with the father on Father’s Day, he spend time with him on that day from 9am until 5pm.
The child spend from 5pm on Christmas Eve until 2pm on Christmas Day with the party with whom he is not spending the first half of each of the Summer school holiday periods.
The child spend two hours on his birthday with the party with whom he is not then spending overnight time unless the child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.

Changeover

During school terms, all changeovers are to occur at the child’s school.
During school holidays, changeover for the commencement of the first half and the conclusion of the second half are to occur at the child’s school, and for the commencement of the second half the party with whom the child is about to commence to spend time is to collect the child from the residence of the other party.
For special days the party with whom the child is about to commence to spend time is to both collect the child from the residence of the other party and return the child to the residence of the other party.

Telephone communication

Commencing on Thursday 20 August 2009 the child have telephone communication with the party with whom he is not spending time, to be facilitated by the party with whom he is spending time, reasonably as the child may request, and otherwise between 6.00pm and 6.30pm on Saturdays and on the birthday of the other party.

Information

The parties must notify each other as soon as practicable of any serious accident or medical injury concerning the child.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the child attends and authorise such to provide to the other at his/her expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.
The parties must authorise the child’s school to provide each party at his/her expense upon any written request by him/her to the school copies of school reports concerning the child and circular or other written information concerning school activities usually provided to parents of children at the particular school, provided that this order is sufficient authorisation to do so.

Parties’ ability to make other arrangements in writing

Despite these orders, the parties may make other arrangements in relation to the child spending time with each of them, provided that such other arrangements are agreed in writing.

Parties’ communication

All written communications between the parties concerning the child be by email or text message and not contain any subject matter other than as may relate directly to the child and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.

Non denigration

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

Maternal grandmother

The mother must ensure that at no time the child speaks with or is left with or is in the presence of the maternal grandmother when he is living with or visiting the mother without the mother being present.

All other orders discharged

All other orders concerning the child are discharged.

All other applications dismissed

All other applications concerning the child are dismissed.

Independent children’s lawyer

The independent children’s lawyer is discharged three months from today and is requested to liaise with the solicitors for the father and the mother, and if necessary Mr H, if difficulties should arise in the implementation of these orders.

Liberty to apply

The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is unclear so as to require clarification.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2670 of 2008

MR GANLEY

Applicant

And

MS GANLEY

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern the parties’ son born in September 2002 (the child), whose parents are Ms Ganley (the mother) and Mr Ganley (the father).
The father by his amended application filed 8 May 2009 (original filed on 26 March 2008) sought final orders that the child live with him, he have sole parental responsibility and the child spend supervised time with the mother for up to six months with subsequent review by way of further family report. During the hearing, and in particular on 4 June 2009, the father proposed in the alternative a week about arrangement. The father’s final proposal however, was that the child live with him, there be equal shared parental responsibility, the child spend no time with the mother for one month then subsequently on alternate weekends from after school on Friday to before school on Monday, for half of the school holidays and on special days, telephone communication and other orders.
The mother by her amended response filed 22 May 2009 (original filed 1 May 2008) sought final orders that the child live with her and spend time with and communicate with the father as may be agreed between the parties but failing agreement supervised for hour hours in each week at a day and time to be agreed or as may be ordered. The mother’s final proposal however was that the child live with her, she have sole parental responsibility, and the child spend time with the father as may be agreed but failing agreement during school terms on Saturdays from 9.00am until 5.00pm, during each school holiday period on two consecutive days between 9.00am and 5.00pm, and on special days, to be supervised unless the mother should agree in writing to the contrary, telephone communication and other orders. The mother’s submissions proposed, in the alternative, a week about arrangement, but only if I should make a finding that there is no unacceptable risk of sexual abuse of the child by the paternal grandfather or the father and no unacceptable risk of physical abuse of the child by the father.
The independent children’s lawyer, in written submissions provided at the conclusion of the hearing, proposed that the parties have equal shared parental responsibility, the child live with the father and spend no time with the mother for one month, that subsequently there be a week about arrangement during school terms, and a half holiday arrangement during school holidays, with specific provision for special days, telephone communication and other matters.
The independent children’s lawyer and the parties, by arrangement at the conclusion of the evidence on 4 June 2009, had provided written submissions in readiness for oral submissions on 26 June 2009.
On that date Mr Drysdale of Counsel, for the independent children’s lawyer, said the independent children’s lawyer’s proposal for week about time during school terms had been predicated on the impression that during her evidence the mother had appeared to accept that the several disclosures or alleged disclosures by the child of sexual abuse had no substance; whereas the written submissions by Mr Crisp of Counsel, for the mother, had appeared to “move away from that”. Mr Crisp, in his oral submissions, made clear that although the mother did not seek a finding of actual sexual abuse, she did seek a finding of unacceptable risk of sexual abuse in relation to both the paternal grandfather and the father, and made clear that the mother’s position was and remained that she has had and still has a genuine belief that the subject matter of the child’s disclosures had actually occurred, despite her “prevarication and unsureness” at the trial.
Mr Drysdale thus submitted that “one of the planks” that had persuaded the independent children’s lawyer to submit in favour of week about time during school hours was “stripped away” such that if I should find that the child’s disclosures have no substance and that the mother’s continued belief has the effect that she is not able to value the importance of a relationship between the child and the father, then the independent children’s lawyer “leaned more towards the father’s proposal”, that is, closer to the father’s proposal than a week about arrangement, being “somewhere between the father’s proposal and week about”, then, after discussion ultimately favoured the recommendation of the family consultant, Ms M, that during school terms the child spend 10 nights with the father and 4 nights with the mother.

Background matters

The parties married in December 2000. They separated on 5 August 2007, when the child was nearly five years.
The child presently is estranged from the father.
The mother is 36 years. She lives at D with the child in the former matrimonial home which is owned by the mother and the father, whose concurrent property proceedings are yet to be determined.
The father is 37 years. He lives at C in a home unit owned by his parents Mr and Mrs Ganley (Snr).
The mother has not repartnered since the separation.
The father in January 2009 commenced a relationship with Ms B. They do not live together and the relationship has not yet reached the stage of discussion as to commitment.
The mother is a school teacher. Currently, she works at L School at D, which is the school the child attends.
The father is a tradesman and works as such.
Mrs P, the maternal grandmother, lives at D with her husband Mr P, the maternal grandfather.
Mr and Mrs Ganley (Snr), the paternal grandparents, live at S.

History of contact since the separation

Between the parties’ separation in August 2007, and February 2008, by informal arrangement the child spent sporadic time with the father, with the mother present or nearby on all occasions, save for one hour on Father’s Day in September 2007.
On 2 May 2008, a consent interim order was made for the child to spend time with the father at the E Contact Centre.
On 15 May 2008, the matter was designated Magellan.
As at 3 June 2008, the date of Ms M’s interviews for the purpose of her family report, the father had attended intake, but nothing further had eventuated. Subsequently however, between then and 15 October 2008, about four occasions of supervised time with the father at the E Contact Centre eventuated.
On 15 October 2008, that is, after Ms M’s family report 19 June 2008, by consent the interim order made on 2 May 2008 was suspended, and an order made for the child to spend time with the father facilitated by Ms M.
The subsequent report 20 January 2009 by Ms M, supplemented by the report by Mr H, family consultant, 20 May 2009, provide the subsequent history.
In the result, the child has spent no time with the father since February 2008 save as provided in those reports, namely on 15 December 2008 (with Mr H) and on 6 January 2009 and 13 January 2009 (with Ms M).

Notice of child abuse

On 1 May 2008 the mother filed a notice of child abuse and domestic violence, containing the following:
(a)It is alleged that the child’s grandfather [Mr Ganley Snr] has dealt with the child in a way that constitutes sexual interference.
(b)It is alleged that the child’s grandfather [Mr Ganley Snr] has exposed the child to indecent acts.
(c)It is alleged that the child’s father, whilst knowing of the allegations and disclosures made by the child about the child’s grandfather has attempted to silence the child.
(d)It is alleged that the child’s father, whilst knowing of the allegations and disclosures made by the child about the child’s grandfather has refused to consider or believe that the child would be at risk at the grandfather’s care.
(e)It is alleged that the father has physically assaulted the child by punching him in the stomach.
(f)It is alleged that the father has sworn at and shouted at the child and displayed acts of violence such as hitting walls with his fist in the presence of the child.
(g)It is alleged that the father has sexually assaulted or interfered with the child.

The evidence

The father relied upon evidence by himself, Mr Ganley Snr, the paternal grandfather, Mrs Ganley Snr, the paternal grandmother, Z Ganley, his brother and Ms R, a child and family therapist and counsellor at the child’s school.
The mother relied upon evidence by herself, Mrs P, the maternal grandmother, Ms NP, the mother’s sister and the maternal aunt, Dr G, general practitioner, Ms Q, psychologist, Ms A, the child’s prep teacher, Ms S, counsellor with O Organisation and Ms E, counsellor with O Organisation.
The independent children’s lawyer relied upon evidence by Dr K, psychiatrist, Ms M, family consultant and Mr H, family consultant.
In addition, the evidence comprised the documentary exhibits (exs 1-9) including three videotaped interviews with the child, one videotaped interview with the father and one audiotaped interview with the paternal grandfather (ex 2), the transcripts of those interviews (ex 3), a bundle of agreed documents (ex 1) and other documents including a photograph and sketchplan.
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.

The child’s disclosures/ alleged disclosures

The child has made several disclosures or alleged disclosures to several persons. It is convenient to set them out by reference to the persons to whom the disclosures or alleged disclosures have been made.
The following extract is copied from the written submissions of Mr Drysdale of Counsel, for the independent children’s lawyer. It is to be noted that, in parts, Mr Drysdale has included submissions/observation. Mr Crisp of Counsel, for the mother, and Mr Fleetwood of Counsel, for the father, agreed during final submissions that the extract is a comprehensive summary. However, following the extract I have included other references supplied by them, with all Counsel in agreement that the following is a complete summary.

EXTRACT

Disclosures Alleged to Have Been Made to the Mother

·Affidavit of Mother sworn 14 March 2008 paragraph 14, Mother alleges on the night of 30 May 2007 –

“On the night of 30 May 2007, I was in the kitchen and [the child] and his father were in the toilet. I could hear their voices as they were talking to each other. I do not know what was said. [The child] then came into the kitchen. [The child] had his hands down the front of his pants holding the front of his pants down and his penis out. [The child] said “Mummy smell this, Mummy smell my willy, smell this.” As [the child] was saying this, he was waving his penis. He kept asking for me to smell it over and over. I told [the child] “[child] don’t do that”. [The child] did not stop, so I knelt down to him. I do not remember the exact words I used, however I explained to [the child] that he should not do that with his willy. [The child] continued to ask me to smell it, and waved his penis about. He then pushed my head towards his penis. I pulled back and said “You don’t do that. Where did you get that from, has anyone done that to you?” [The child] said words to the effect of “Noonu did it at [S] in the toilet in the caravan.” He then skipped off into his toy room.”

In paragraph 16 –

“I asked [the child] if anything had happened at any other time. [The child] said “Yes, when we went to the shed to get some jelly.”

In the Mother’s Evidence in Chief filed 1 April 2009 at paragraphs 10 and 11 the Mother gives a similar version as to what occurs with the addition of the following:
In paragraph 10:

“…I was on the phone to my mother at the time and this distracted me…”

In paragraph 11:

“…I told my mother that I would call her back and I disconnected the call…”

In paragraph 22 of the Affidavit filed on 1 April 2009 –

“I recall that on Tuesday 21 August 2007, [the child] was playing with his toys and said to words to the effect of, ”Noono tried to make a milkshake with me in [S] in the shed”. He went on to say words to the effect of , “Noono used a cup and played with my willy to make a milkshake”. He then told me that he thought it was funny and he “peed on Noono”. [The child] then said words to the effect of, “he then tried to make a milkshake again. Noono made a milkshake with his willy into a cup”. I made a written record of what [the child] had said to me.

In paragraph 32 of the Affidavit filed 1 April 2009 –

“On 9 November 2007 [the child] said to me, Noono put his willy on my bum cheeks and made it all wet.” [The child] told me that his grandfather was kneeling at the time. I advised the Police of this allegation on 14 November 2007.”

In paragraph 38 of Affidavit of the Mother filed 1 April 2009 –

“On 27 February 2008 [BK] telephoned me and advised me that as a result of the further interview with [the child] disclosures had been made by [the child] that his father had put “his willy” in [the child’s] mouth. [BK] advised me that she would be interviewing the father in relation to this disclosure.”

In paragraph 39 –

“That after this time [the child] continued to make reference to his father and grandfather and inappropriate behaviour. For example, on 12 April 2008 [the child] told her that the father and Noono had put their fingers into his bottom while they were at [S] in the caravan. [The child] then said that Noono got poo on his finger. [The child] then said words to the effect “Silly daddy silly Noono”.

Disclosures to Ms S (Affidavit of Ms S filed 15 May 2009)

(i) Counselling appointment 23 August 2007 –

“[The child] disclosed that Noono (term used for grandfather) had asked him to “wee in a cup” and that he had “pulled [the child’s] willy”.

(ii) Counselling appointment 6 September 2007 –

“[The child] disclosed that “Noono stuck his willy out and tickled it … and took [the child’s] willy out and tickled it … then he got a cup and said to do a wee in it and then [the child] weed on Noono, it was funny.” [The child] also stated that sometimes [the child] is scared of daddy and he puts his hands on [the child] like this (“child placed his own hands around his neck and squeezed and squeezes, daddy hurts [the child]).”

Disclosures to Ms E (Affidavit of Ms E filed 20 May 2009)

(i)Affidavit of Ms E -

“29.2.08 – “I don’t have a dad anymore,” “he is angry at me”.
8.5.08 – “I need to tell you the truth now about what my daddy did to me”, “My daddy made me suck his wee wee when I was in the shower, he came in the shower with me, it tasted yuck and made me want to vomit.”
15.5.08 – “I don’t want to see daddy”, “he hurts me”, “he gets angry with me.”
10.9.08 – “I don’t want to see him, he hurt me and made me suck his wee we”.

Transcript of Proceedings of Interview between Senior Constable BK and the child on 6 June 2007

It is considered relevant to read the first Transcript from the foot of page 15. In the following pages there are repeated references by the child to Noono being naughty.

· PAGE 17
[THE CHILD]: He just flushed me down the toilet and then I came to my Mummy.

There are more than a dozen references to the child stating that Noono is naughty.
At foot of page 18 the child states: “That he goes shopping if you are naughty”. It submitted that when one reads the Transcript one gains the impression that the child does not really know naughty means.
·     PAGE 16:
[SNR CON BK]:   Tell me about smelling your willy.
[THE CHILD]:     I – I didn’t smell my willy.
The child then on five occasions states that Noono gets naughty sometimes.
[SNR CON BK]:   What does he do?
[THE CHILD]:     He just flushed me down the toilet then I came to my Mummy.
[SNR CON BK]:   He flushed you down the toilet?
[THE CHILD]:     Oh I – I - I didn’t get flushed down the toilet, I just came to Mummy.
[SNR CON BK]:   Yeah. What did you come to Mummy for.
[THE CHILD]:     Cause, cause, cause Noono was still being naughty.
[SNR CON BK]:   You can tell me. What do you mean when you say that Noono gets naughty?
[THE CHILD]:     Just, um, he gets … and then he gets naughty.
[SNR CON BK]:   Yeah? But what do you mean? Tell me about it.
[THE CHILD]:     Poppy gets naughty.

The child then repeats on another five occasions that Noono was naughty.

· PAGE 18

[THE CHILD]:     Um, he – he just, um – just …. And sometimes we get away from him so … he doesn’t get me.
[SNR CON BK]:   So he doesn’t get you?
[THE CHILD]:     Yeah.
[SNR CON BK]:   What does he do when he gets naughty?
[THE CHILD]:     He gets naughty sometimes.
[SNR CON BK]:   Mm. You said that he flushed you down the toilet.
[THE CHILD]:     I didn’t get flushed down the toilet.
[SNR CON BK]:   You didn’t?

·     PAGES 19 AND 20
[SNR CON BK]:   What happens if you’re naughty at Noono’s?
[THE CHILD]:     I don’t get naughty to Noono.
[SNR CON BK]:   You don’t?
[THE CHILD]:     Yeah, but – but sometimes I get naughty to Mummy.
[SNR CON BK]:   Why do you get naughty to Mummy?
[THE CHILD]:     Um, Mummy smacks me.
[SNR CON BK]:   Does she?
[THE CHILD]:     Yes.
[SNR CON BK]:   [Child], can you tell me about Noono smelling your willy?
[THE CHILD]:     I got – I got away from Noono so I got – I got to Mummy.
[THE CHILD]:     Cause I didn’t like him. I just don’t like him ….
[SNR CON BK]: Mm. Did you tell Mummy that Noono smelt your willy?
[THE CHILD]:     He didn’t smell.
[THE CHILD]:     Oh, he – he – I just got to Mummy.
[THE CHILD]:     I just got to Mummy.
[SNR CON BK]: Did you tell Mummy that Noono smelt your willy?
[THE CHILD]:     He didn’t smell.
[SNR CON BK]: Mm. Tell me about Noono getting naughty.
[THE CHILD]:     He – sometimes he doesn’t, sometimes he does.
[SNR CON BK]: What does he do when he is naughty.
[THE CHILD]:     Well sometimes he doesn’t listen to me – listen – listen – I don’t listen to him, then he gets naughty.
[SNR CON BK]: What does he do when he gets naughty.
[THE CHILD]:     Sometimes he … cause he gets naughty because – because – because – when he doesn’t like me.
[SNR CON BK]: Tell me about that. Why doesn’t Noono like you?
[THE CHILD]:     Because – because – cause he just doesn’t and – Mummy likes me now.

·     PAGE 22
[SNR CON BK]: And did you tell – did you tell Mummy and Daddy about Noono smelling your willy?
[THE CHILD]:     He doesn’t smell my willy anymore now.
[SNR CON BK]: He doesn’t now? Has he smelt your willy before?
[THE CHILD]:     No, he hasn’t.
[SNR CON BK]: Eh?
[THE CHILD]:     He hasn’t.
[SNR CON BK]: He hasn’t. Why did you tell Mummy that he had?
[THE CHILD]:     Cause – because I probably have and – now he’s stopped me smelling it.

·     PAGE 23
[SNR CON BK]: Where did Noono – where were you when Noono smelt your willy?
[THE CHILD]:     In the shower and sometimes – and sometimes I go to my Mummy.
[SNR CON BK]: Okay.
[THE CHILD]:     And ….
[SNR CON BK]: What shower? Where was the shower?
[THE CHILD]:     In the caravan.
[SNR CON BK]: Who’s – tell me about the caravan.
[THE CHILD]:     The caravan …..

·     PAGE 24
[SNR CON BK]: What did Daddy say when you told him about Noono smelling your willy?
[THE CHILD]:     Well, I didn’t – I didn’t – I said it to Mummy.
[SNR CON BK]: You said it to Mummy.
[THE CHILD]:     Yeah.

·     PAGE 27
[SNR CON BK]: Did Noono show you his willy in the shed?
[THE CHILD]:     No.
[SNR CON BK]: Did you tell Mummy that Noono did?
[THE CHILD]:     Yeah.
[SNR CON BK]: You did?
[THE CHILD]:     Yeah.
[SNR CON BK]: Did he show you his willy?
[THE CHILD]:     No ….
[SNR CON BK]: Why did you tell Mummy that he did.
[THE CHILD]:     Cause I did.
[SNR CON BK]: Because you did?
[THE CHILD]:     Did you see his willy?
[SNR CON BK]: Yeah.

· PAGE 27
[THE CHILD]: Cause I don’t …. but sometimes I go, um, um, to grandma’s house to play.

·     PAGE 28
[SNR CON BK]: Yeah? All right. Anything else you want talk to me about?
[THE CHILD]:     No. There’s nothing in the story anymore now.
[SNR CON BK]: Nothing in the story anymore?
[THE CHILD]:     Yeah.

Transcript of Proceedings of Interview of Senior Constable BK and the child on 16 November 2007

·PAGES 7 AND 8
[SNR CON BK]: All right. Now, you’ve come to have a little talk to me today. Do you know what you’re going to talk to me about today?
[THE CHILD]:     Yeah.
[SNR CON BK]: What? You tell me? What do you want to talk to me about?
[THE CHILD]:     Mm - - -
[SNR CON BK]: You can talk to me about anything you like. What do you want to talk about?
[THE CHILD]:     Noono stuck his willy out and put it on my bum cheeks and made it all wet.
[SNR CON BK]: Did he?
[THE CHILD]:     Yeah.
[SNR CON BK]: When did Noono do that?
[THE CHILD]:     Oh, at the caravan.
[SNR CON BK]: At the caravan?
[THE CHILD]:     Yeah.
[SNR CON BK]: So he stuck his willy out and put it on where?
[THE CHILD]:     Bum cheeks.
[SNR CON BK]: Yeah. And what happened?
[THE CHILD]:     He made it all wet.
[SNR CON BK]: What did he make wet? What was all wet?
[THE CHILD]:     Ah, his willy.
[SNR CON BK]: His willy?
[THE CHILD]:     Yeah.
·PAGE 9
[THE CHILD]:     And I don’t want to live in the house, otherwise we will sell our house.
[THE CHILD]:     It’s – because I don’t like Noono and Nana any more.
[SNR CON BK]: Why don’t you like Noono and Nana?
[THE CHILD]:     Cause, um, because they make my Mummy sad.
[SNR CON BK]: How did they make your Mummy sad?
[THE CHILD]:     Well, they just do.
[SNR CON BK]: Do you know how they make her feel said?
[THE CHILD]:     Um, I don’t know.
·PAGE 17
[THE CHILD]:     Because I don’t like Noono and I run to Mummy.
[SNR CON BK]: Tell me why you don’t like Noono?
[THE CHILD]:     ‘Cause they hurt my feelings and Mummy’s feelings.
[SNR CON BK]: Do they? How do they hurt your feelings?
[THE CHILD]:     Oh, they just do.
[SNR CON BK]: Tell me how?
[THE CHILD]:     They have a magic way to do that and I have a magic way to get rid of them.
[SNR CON BK]: Do you? What is your magic way to get rid of them?
[THE CHILD]:     Tell the police.

·PAGES 19 AND 20
[THE CHILD]:     Because they are naughty to me. They say everything naughty.
[SNR CON BK]: Tell me about that? Tell me about them being naughty to you?
[THE CHILD]:     They – Nanny’s – Nana was watching Noono – Noono - and then sticked his willy out and made a milkshake with his willy in a cup.
[THE CHILD]:     At the caravan. I told you before.
[SNR CON BK]: Oh, sorry. And Nana was watching?
[THE CHILD]:     Yeah. And Noono said to get rid of Mummy and make Mummy go away.
·PAGE 20

[THE CHILD]:     There was four words.
[SNR CON BK]: Four words?
[THE CHILD]:     Yeah.
[SNR CON BK]: Is that what said, four words?
[THE CHILD]:     Yeah.
[SNR CON BK]: So you said that, um, Noono stuck his willy out?
[THE CHILD]:     Yeah.
·PAGE 21

[SNR CON BK]: So you said he stuck his willy out and he made a milkshake?
[THE CHILD]:     Yeah.
[SNR CON BK]: How did he do that?
[THE CHILD]:     At the caravan. I told you.
[SNR CON BK]: But how did he make the milkshake?
[THE CHILD]:     With his willy.
[SNR CON BK]: Yeah. How, though? Can you tell me how he did it?
[THE CHILD]:     And he – then he- and he put it in a cup.
[SNR CON BK]: Yeah. What did he put in a cup?
[THE CHILD]:     Oh – oh his wee wee.
·PAGES 21 TO 23

[SNR CON BK]: Where was Mummy?
[THE CHILD]:     Mummy was in the caravan.
[SNR CON BK]: Right.
[THE CHILD]:     And I just wanted Mummy.
[SNR CON BK]: So Mummy was in the caravan?
[THE CHILD]:     Yeah.
[THE CHILD]:     No. Nan was in the caravan and Noono was in the caravan.
[SNR CON BK]: Okay. And you were there?
[THE CHILD]:     Yes, in the caravan.
[SNR CON BK]: And Noono put his willy in a cup and made a milkshake?
[THE CHILD]:     Yeah.
[SNR CON BK]: But where was Mummy? Did Mummy see Noono do that?
[THE CHILD]:     Yeah.
[SNR CON BK]: Did you see Daddy, [child]?
[THE CHILD]:     No, he’s gone.
[SNR CON BK]: Where has he gone to?
[THE CHILD]:     He’s gone to Noono and Nana’s house now.
[SNR CON BK]: Oh …
[THE CHILD]:     He doesn’t love us any more.
[SNR CON BK]: Oh, who said he doesn’t love you any more?
[THE CHILD]:     He does.
[SNR CON BK]: And how do you feel about Daddy living with Noono and Nana?
[THE CHILD]:     Oh, I just feel fine with my Mum.
[THE CHILD]:     Yeah, I love my Mum.
[THE CHILD]:     I don’t like Daddy any more.
[SNR CON BK]: You don’t like Daddy any more?
[THE CHILD]:     No.
[THE CHILD]:     Cause he – cause he gets upset with me.
[THE CHILD]:     … he just does it.
·PAGE 29

[SNR CON BK]: Where would be – so where should some not touch you?
[THE CHILD]: An, Noono and Nana.
[THE CHILD]: Bad touching is you can’t touch people, only Mummies have to touch people, you know.
·PAGES 29 AND 30

[THE CHILD]: Well, it had four words.
[SNR CON BK]: It did. What had four words?
[THE CHILD]: Like, there were four words I said.
[SNR CON BK]: Is there anything you want to tell me about – any more want to tell me about Noono and Nana?

Transcript of Proceedings of Interview Between Senior Constable BK and the child on 20 February 2008

·PAGES 6 AND 7
[SNR CON BK]: Oh, okay. Now, do you know why you have come to speak with me today?
[THE CHILD]:     Because of Daddy.
[SNR CON BK]: Oh, okay. Tell me all about Daddy.
[THE CHILD]:     Daddy punched me in the chest, and he punched me in the tummy.
[SNR CON BK]: Yeah?
[THE CHILD]:     And he squeezes me around my neck.
[SNR CON BK]: Does he?
[THE CHILD]:     Yep. And Daddy is bad.
[SNR CON BK]: Why is he bad?
[THE CHILD]:     Because he hurts me.
[SNR CON BK]: How does he hurt you? How does he hurt you?
[THE CHILD]:     Um, don’t know. I ….
[SNR CON BK]: He is not at your house any more? Do you go and see Daddy at his house?
[THE CHILD]:     Mm, yeah.
·PAGE 8
[SNR CON BK]: You said, um, [child], that Daddy punched you in the chest. Where is that; show me where that is? Okay. When did that happen? Do you remember when that happened; when Daddy punched you in the chest?
[THE CHILD]:     Um, no.
·PAGES 9 AND 10
[SNR CON BK]: Yep? Whereabouts were you when that happened? [Child]? Where were you when Daddy choked you?
[SNR CON BK]: Do you know where you were when Daddy chocked you?
[THE CHILD]:     No.
[SNR CON BK]: What about when he punched you; whereabouts were you?
[THE CHILD]:     Ah, I don’t know.
[SNR CON BK]: Okay. What happened when Daddy punched you in the belly; can you tell me? What did you do?
[THE CHILD]:     I don’t know.
[SNR CON BK]: All right. Do you remember you last saw Daddy?
[THE CHILD]:     Um, no. All I know, he’s a bad person.
[THE CHILD]:     Because he hits.
[THE CHILD]:     He hurts me very much.
[THE CHILD]:     Yeah.
[THE CHILD]:     Terrible.
[SNR CON BK]: Yeah? Who do you talk to about things like that, when Daddy hurts you? Who do you tell?
[THE CHILD]:     Mummy.
[THE CHILD]:     And [BK].
[SNR CON BK]: And [BK]? You remember my name?
[THE CHILD]:     Yeah.
·PAGES 12 AND 13
[SNR CON BK]: What else are we going to talk about today? Anything else you want to talk about?
[THE CHILD]:     Daddy hurts me very much.
[SNR CON BK]: Are you are your house?
[THE CHILD]:     Yeah.
[THE CHILD]:     Um, no, I don’t see him then.
[SNR CON BK]: You don’t see Daddy? No?
[THE CHILD]:     No?
[SNR CON BK]: And how do you feel when you do see Daddy?
[THE CHILD]:     Don’t know.
·PAGES 15 AND 16
[THE CHILD]:     Um, Daddy pulled his willy and put it in my mouth.
[SNR CON BK]: Who did?
[THE CHILD]:     Daddy?
[SNR CON BK]: What did he put in your mouth?
[THE CHILD]:     His willy.
[SNR CON BK]: When was that?
[THE CHILD]:     In the shower.
[SNR CON BK]: Yeah? Where was the shower?
[THE CHILD]:     In his unit.
[SNR CON BK]: Was anyone else there?
[THE CHILD]:     No, it was just Daddy, I know.
[SNR CON BK]: Where was Mummy?
[THE CHILD]:     Um, I don’t know.
[SNR CON BK]: How come you were having a shower with Daddy?
[THE CHILD]:     Because he’s pulled me in the shower.
[THE CHILD]:     No.
[SNR CON BK]: Okay. Did you tell anyone about that?
[THE CHILD]:     No.
[SNR CON BK]: You haven’t told anyone?
[THE CHILD]:     No.
[SNR CON BK]: Why didn’t you tell anyone?
[THE CHILD]:     I told Mummy.
[SNR CON BK]: Did you?
[THE CHILD]:     Yeah.
[SNR CON BK]: And what did Mummy say?
[THE CHILD]:     Good.
[SNR CON BK]: She said, “Good”?
[THE CHILD]:     Yeah.
·PAGE 17
[THE CHILD]:     Mm, I don’t know what his place looks like.
[THE CHILD]:     Because it is so big, I don’t know what else …
·PAGE 17
[SNR CON BK]: [Child], when you said that Daddy put his willy in your mouth, how old were you when that happened. Five? Year? You were five?
·PAGE 18
[SNR CON BK]: […] of September? How, you got a good memory, haven’t you?
[THE CHILD]:     Yeah.
[SNR CON BK]: What about when Daddy punched you in the chest and tummy; how old were you then?
[THE CHILD]:     Still five.
[SNR CON BK]: All right.
[THE CHILD]:     Still five, five, five, five, five, five, five.
[SNR CON BK]: What about when he squeezed you around the neck?
[THE CHILD]:     Five.
[SNR CON BK]: Five. Do you talk to Daddy now?
[THE CHILD]:     I don’t know.
·PAGES 19 AND 20
[THE CHILD]:     Like Daddy.
[SNR CON BK]: Mm. What – Daddy doing what?
[THE CHILD]:     I don’t know.
[SNR CON BK]: Like Daddy punching you is what?
[THE CHILD]:     Yes.
[SNR CON BK]: Is that bad touching?
[THE CHILD]:     Yeah.

Disclosures to Ms M – Family Report 20 January 2009

36.“[The child] left the kitchen and I began to take some notes. Surprisingly he spontaneously entered the kitchen, initially walking in circles then coming up to me and saying “Dad touched my willy – Daddy put his hands down my pants and touched my willy”, and then left the room.”
37.“Shortly after, he again entered spontaneously and told me “Daddy put his willy in my mouth and made me vomit.” He then told me “Daddy put his hands around my neck (demonstrating with his own hands) and choked me”, then making coughing noises – “I couldn’t breathe.”
37.“These comments were made in a robot like manner, during short periods of time when [the child] was not walking in circles, in the kitchen.”

Evidence of physical and emotional abuse

Affidavit of the Mother dated 1 April 2009- re the child paragraphs 59, 60, 61 & 62.

Affidavit of the Mother dated 1 April 2009 – re Mother paragraphs 89 – 115.

In paragraph 49 of Mother’s Affidavit.

“On the afternoon of 4 September 2007 I saw [the child] rubbing his stomach. I recall that this was the Tuesday after Father’s Day. [The child] had been to the park with the father on Father’s Day. [The child] came back from the park with red eyes, like he had been crying. I had left them there unattended for a short time. I asked [the child] “Do you have a sore tummy?” He replied “That is where Daddy punched me.” [The child] then told me that the reason that his father had punched him was because [the child] would not talk to him about me. [The child] told me that “my ears hurt, I don’t want to tell anymore.” [The child] has not been supervised contact with his father since time.”

FURTHER MATERIAL

Department of Child Safety, ex 13, eg. p21.

Affidavit of Ms R, annexure MR1.

The issues

Ms M, in her report 19 June 2008, identified the following as the issues in the proceedings:
The father’s concerns as to whether:
·    His father has been falsely accused of sexually abusing [the child]
·    He ([the father]) has been falsely accused of physically abusing [the child]
·    He ([the father]) has been falsely accused of sexually abusing [the child]
·     [The mother] and [the maternal grandmother] have conspired to cut him ([the father]) out of [the child’s] life
·    [The mother] is an over protective and possessive mother
·    [The child] is being emotionally abused and manipulated by [the mother].
The mother’s concerns as to whether:
·    [The child] has been sexually abused by his paternal grandfather
·    [The child’s] paternal grandmother is a party to such abuse and protective of the paternal grandfather
·    [The father] is protective of his father
·    [The father] would not protect [the child] from possible sexual abuse by the paternal grandfather
·    [The father] has also sexually abused [the child]
·    [The father] has physically abused [the child].

In her subsequent report 20 January 2009, Ms M identified the following issues:
·    [The father] continues to express outrage and frustration in relation to the allegations of his physical and sexual abuse of [the child]
·    [The mother] is totally opposed to [the child] having any direct contact with [the father]
·    Both parties now present as abandoning any positive feelings for each other and state that they have no wish to engage with each other
·    [The child] is totally rejecting of any contact whatsoever with his father to the point of refusing to even look at a photograph of him
·    [The child] and [the mother] have an enmeshed relationship in which [the mother] does not impress as having authority
·    [The child] is a troubled child with a strong tendency to regress to infantile behaviour when experiencing discomfort to the point of wetting himself
·    During this assessment [the child] made disclosures to me in relation to physical and sexual abuse by his father which directly reflected comments made during his Police interviews (which I have viewed).

Principles relevant to parenting orders

Children’s best interests paramount

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

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

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

The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

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

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;

and:

·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

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

Other provisions

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

Weight

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

Principles relevant to findings of sexual abuse

In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

Approach to the analysis of evidence relating to sexual abuse disclosures

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

Principles relating to unacceptable risk of sexual abuse

In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.

The findings urged by the parties

Mr Drysdale of Counsel, for the independent children’s lawyer, urged that the child’s disclosures/alleged disclosures are by their nature inherently unlikely and further that it is not possible for them to have occurred in the timeframes described, so that I should be satisfied and find that it is unlikely that any sexual abuse occurred and further that there is no unacceptable risk that sexual abuse in the future would occur.
Mr Fleetwood of Counsel, for the father, urged to similar effect.
Mr Crisp of Counsel, for the mother, urged that the mother did not seek that findings of actual sexual abuse be made, but that there be a finding of unacceptable risk on the basis of the “wider view” that all of the child’s disclosures and/or alleged disclosures and “all of the past conduct of the father” have the effect of coming within point 7 of Mr Fogarty’s seven point summary as components which, whilst none may be established on the balance of probabilities, nonetheless as a group of components represent an “accumulation of factors” to lead properly to the conclusion that there is an unacceptable risk of sexual abuse by the paternal grandfather and/or the father. He urged that the harm to the child from spending unsupervised time with the paternal grandfather and/or the father outweighs the possible benefit to the child of spending unsupervised time with either of them. In particular, Mr Crisp urged that whilst he is mindful of the Full Court’s observation in Johnson & Page at [71] that “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”, in this particular case although it may be that none of the factors satisfies the standard of proof the accumulation of factors is such that I should “err” on the side of caution and make a finding of unacceptable risk.

Findings

Against that background, I turn now to my examination of the evidence and my findings.

The paternal grandfather

It is convenient to deal first with the child’s disclosures of untoward acts against him by the paternal grandfather during the three day visit in May 2007 by the mother, the father and the child to the paternal grandparents’ abode at S. The layout of the area of the paternal grandparents’ then abode shows a partly constructed house, tennis court, caravan and shed, with other improvements. See annexure GG2 to the paternal grandfather’s affidavit, the photographs annexure GG3; and further ex 5 (a sketchplan and three photographs) as to the inside layout of the caravan.
The paternal grandfather said, which I accept, that there were two toilets in the relevant area, the first being in the shower area inside the caravan (ex 5) and the second being a portable toilet outside of the caravan but near it (see annexure GG3). It is common ground that there were three occasions during the visit to S in May 2007 when the paternal grandfather was alone with the child, and one occasion when he was alone with both of the paternal grandparents:
(a)The paternal grandfather took the child to show him the house that was being constructed: see annexure GG3, last sheet. This was of short duration and observable. There was no toilet in the house under construction.
(b)The paternal grandfather took the child to empty a toilet canister into a soil pit near the fence line beyond the dam: see annexure GG2. Interestingly, the paternal grandfather said that the canister gives a pungent smell when being emptied, because of chemicals in the canister.
(c)The paternal grandfather took the child to the shed one evening after dinner to get some jelly for dessert. They were gone about 3-4 minutes. It was cold and the child was put into a heavy coat to rug him up against the cold. There is no toilet in the shed. The shed is about 20-30 metres from the caravan. There was nothing unusual in the presentation of either on their return.
(d)The mother and the father were absent from the child for about ten minutes on a motorbike ride, during which short period the child remained in the caravan with the paternal grandparents.
Given the location of the two toilets, it would seem impossible on any of the identified occasions that any of the subject matter of the child’s disclosures concerning the paternal grandfather doing anything untoward to the child at or near a toilet could have occurred, and impossible that there would have been any opportunity for the paternal grandfather to have had his penis uncovered or the child’s penis or bottom uncovered for any of the things the child disclosed to have occurred. The short timeframes also indicate against the possibility of the child’s descriptions or events similar to the child’s descriptions.
These circumstances gives rise to three possibilities in relation to the child’s disclosures. The first is that the child has fabricated all of the disclosures. The second is that the mother has fabricated the disclosures, and then prompted or coached the child to make them to her, there being no underlying basis in fact in them by way of anything which the child said to her, and that the child in turn has repeated the disclosures to Detective Senior Constable BK, the two women from O Organisation and others. The third is that the child has made innocent utterances to the mother which the mother has interpreted as sinister, and then, deliberately or unwittingly, prompted or coached the child into embellishing them so as to cause the child to make repeated rote disclosures.
In the third category, there are two matters which initially seemed not to have innocent explanation, and thus to be of considerable concern. The first of these is the child attributing smell to something the grandfather did at or near a toilet; and the second the child’s reference to the paternal grandfather making a “milkshake” with his penis in or into a cup. As to the first of these matters, the paternal grandfather said during Mr Crisp’s cross examination of him that the child accompanied him when he emptied a toilet canister to a soil pit which the paternal grandfather identified on annexure GG2 by a yellow highlighter marking (near the top right hand area of the annexure). When asked if the contents of the canister had a smell, the paternal grandfather said that the contents of the canister had added chemicals, so that there was not the smell of excrement but a “pungent” chemical smell. Thus, it seems more likely than not that the child indeed may have made some innocent remark to the mother about the grandfather, a toilet and a smell, and either embellished it as described by the mother, or alternatively that the mother embellished it by sinister connotation. I will refer below more specifically to the mother’s and the father’s evidence as to the child’s initial remarks about this following the S trip. As to the second of these matters, the obvious connotation is that the child’s disclosure either amounted to or was intended to be understood as the child seeing the paternal grandfather masturbate into a cup, with the child witnessing semen, described as a milkshake. The child plainly has got this idea from somewhere. However, on the evidence, which I accept, of the child being alone with the paternal grandfather an/or paternal grandfather and paternal grandmother during the S visit only on the four occasions described, it seems impossible for there to have been any occasion when such could have occurred. Realistically, it could not have occurred on the walk to empty the canister; nor on the visit to the shed to get the jelly; nor on the short and observable walk to inspect the house construction; nor while the mother and the father had their short motorbike ride; there being on each of these occasions it would seem insufficient time for such an event to have occurred.
There is no easy innocent explanation of the child’s specific description. However, there is possible explanation of his having knowledge as to the nature of semen sourced in the circumstance that the mother herself possibly suffered sexual abuse as a child, and by either leading inquiry or suggestion has deliberately or unwittingly prompted or coached the child to make repeated rote disclosures. The father said in his trial affidavit, par 49, that the mother had told him of two incidents when she had been abused by her brother in law: “[the mother] said he would pretend to throw them on the bed and would stick his finger in their anus and how in the dark he ejaculated on her face.” In his oral evidence, the father said the mother had told him (to the effect) that the mother’s brother in law would “pick the kids up and pretend to play aeroplanes” then “land them on the bed and put his finger in their anus” and that on her face it was “warm and wet”. The mother denied this, saying in her affidavit in response, par 64, that she believed the incident the father referred to was of her brother in law, “calling her into a bathroom and standing there with a long shirt on and no pants”, but that this had been a “one off incident and there are police records of it.” The mother said in her oral evidence, about this, that she had not seen her brother in law’s penis. However, there is inconsistency between the mother’s evidence here and the court brief obtained under subpoena to the Queensland Police Service in relation to the incident which describes that the mother’s brother in law indeed exposed his penis to her: see Ms McArdle’s affidavit filed on 17 June 2009, annexure B, pp20-21, as to HN’s conviction for wilful exposure to the mother when she was 12 years, Mr HN being her brother in law. The court brief refers directly to Mr HN having exposed his penis to the mother.
An important point as to credibility arose between the father and the mother as to whether the father had fabricated the mother’s disclosure to him or whether the mother had indeed made that disclosure. Further, the question arises whether, if the mother had made the disclosure to the father which he says she made, it was true or had been imagined. However, it is not necessary to determine this latter aspect of the matter.
I was urged by Mr Crisp to reject the father’s evidence on this point as not credible and to accept the mother’s evidence that she had made no such disclosure to the father as he described. However, the father was clear in his evidence, and I accept it, whereas the mother appeared nervous about this subject matter, and in my assessment as the trial judge was hesitant and unconvincing.
Thus, the possibility arises that the mother, by fear relating to her own sexual abuse as a child by a relative has acted upon some innocent remark by the child concerning “the grandfather, a toilet and a smell” (in the child’s mind related to the canister emptying) and then possibly questioned the child as to whether he saw the grandfather’s penis or semen, or whether there was anything “wet or warm” or interference with his anus by fingers being placed in it, so that, as put by Mr Drysdale, the matter then “spiralled out of control” with the child then, on cue, by deliberate or unwitting prompting or coaching subsequently has made rote disclosures whenever asked, but at times in nonsensical terms, such as the child disclosing that he had been “flushed down the toilet” or that the paternal grandfather’s penis had been “put in a cup.”
In reverse order, then, of the three possibilities to which I have referred, it seems more likely than not that (1) the child may have made innocent utterances to the mother, eg, concerning the grandfather, a toilet and a smell (the canister emptying); (2) the mother may have explored with the child, by leading suggestions, whether other things had occurred with the paternal grandfather relating to the grandfather’s penis, the child’s penis, the child’s anus, semen and such like causing the child’s descriptions; (3) upon repeated questioning over a long period (there were three police interviews 6 June 2007, 16 November 2007 and 20 February 2008, as well as Ms M and others) the child resorted ultimately to fabricated and nonsensical disclosures such as being flushed down a toilet.
There is considerable support for such a likely “spiralling out of control” when regard is had to the father’s affidavit, par 26, when read in conjunction with the mother’s affidavit, par 14, being the first disclosure to the mother and the first disclosure in Mr Drysdale’s extract. The father’s affidavit provides;
26. In early June 2007 I came home from work one day and was helping [the child] to go to the toilet when he said, “sniff it” and pushed my head to the toilet. I mentioned this to [the mother] who was in the kitchen cooking. [The mother] and I then asked [the chid] “Where did you get this from?” or words to that effect, but [the child] didn’t say anything more. I went to watch television and [the mother] spoke to [the child]. I do not recall [the child] holding the front of his pants down and his penis out. I don’t remember [the child] saying to [the mother] “Mummy smell this, Mummy, smell my willy, smell this”. It is possible that [the child] said these things to [the mother] after I went to watch television but I did not see or hear these things myself. [The mother] then came into me and said, “[the child] said Nono told him to sniff his willy”. [The mother] said, “[Child] who told you to do that?”, and he said “Nono”. I questioned [the child] by saying, “What happened?”, but he wouldn’t say anything more. [The mother] also questioned [the child] but he still wouldn’t say anything. At first [the mother] was really upset about what [the child] said but then she seemed to be okay and we had dinner. Within half and hour we were back to normal so I didn’t give it any more thought.
In context, the child saying to the father “sniff it” and pushing the father’s head towards the toilet shortly after the S visit and the clear evidence of the toilet canister at S with the pungent smell may have been the innocent source of all of which subsequently ensued, spiralled by inappropriate questioning of and suggestion to the child. Certainly, such reasoning is open when regard is had to the context of the three interviews by Detective Senior Constable BK with the child (ex 2), each having the hallmarks of the child knowing the purpose of the interviews, that is, to convey that the paternal grandfather had done “naughty” or “bad” things to him, and in that context, repeating by rote subsequently to others what he had learned by then he was expected to say. Such a line of reasoning is consistent also with Ms M’s observation that small children “like to hear stories about themselves and if a trusted person tells a child 4-5 years that something has happened they are very likely to believe it.” More particularly in relation to the child, Ms M said “whether or not the child has been sexually abused in my observation he had been assisted in what to say.”
I have referred already to the principles relating to the making of positive findings of actual sexual abuse of children in family law matters. Objectively viewed, and even absent plausibility of the possible explanation outlined as to the chain of the child’s disclosures, the totality of the evidence is incapable of supporting any positive findings.
Often, in cases such as this, the totality of the evidence is such that a trial judge cannot, for insufficient strength of evidence, make positive findings, but will be led to the conclusion that there is such uncertainty as to observe that he or she is not prepared to make a contrary finding that sexual abuse has not occurred. This is not such a case. Having considered all of the evidence, and as required, having considered it deeply, as cautioned by Fogarty J in N & S (above), I conclude without hesitation, and find that the paternal grandfather has not sexually abused the child nor been engaged with or engaged the child in any untoward or inappropriate sexual activity. Indeed, as observed already, given the location of the two toilets at S, and the short timeframes involved when the child was alone with the paternal grandfather and/or the paternal grandfather and the paternal grandmother, it would seem impossible that there would have been any opportunities for the events described to have occurred.

The father

The extract shows that the child’s disclosures concerning sexual abuse by the father seem to have commenced in the child’s third interview with Detective Senior Constable BK, 20 February 2008, and subsequently were repeated, in some cases with variation, to the mother, Ms M, and others. In summary, they concern the child disclosing that the father “pulled his willy and put it in my mouth”, in the shower “in his unit”, that he had told the mother this and the mother had said “Good” (to Detective Senior Constable BK); the father “put his fingers into the child’s bottom”, this being on the occasion of the S visit, in the caravan (mother’s affidavit, par 39); “my daddy made me suck his wee, it tasted yuk and made me want to vomit”, this being in the shower (Ms E); “Dad touched my willy - Daddy put his hands down my pants and touched my willy” and “Daddy put his willy in my mouth and made me vomit” (Ms M); and the father “put his willy in my mouth and his finger up my bum” (Ms R).
In 2007, the paternal grandparents, the father, the mother and the child had an occasion of swimming in the pool at a home unit complex. The father said in oral evidence as to that occasion that the family was all in the swimming pool together, however, the child was shivering and getting cold. The paternal grandfather asked if he should take the child in and shower him, which occurred, with the father and the mother staying in the pool “kissing and cuddling and having a beer”. The father said he remembered the incident quite vividly as the mother said to him “go and get [the child] out of the shower”, because the paternal grandfather was “grooming him”. This seems to have been identified, potentially, as an occasion of the father and the child being in the shower together on which occasion the alleged sexual abuse in the shower could have occurred, although other potential occasions were not excluded. However, the father said in his evidence, which I accept, that the swimming pool/shower incident described occurred before the S visit in May 2007. The mother, in her evidence, had the paternal grandfather and the child together in the shower on other occasions, for example, January 2006, but not the father.
The disclosures to Ms M and Ms R did not have reference to any occasion or setting.
Mr H, in his report 20 May 2009, par 12, said that in a supervised session with the child on 15 December 2008, whilst the child had commenced to act in an agitated and unusual manner, he repeatedly moved towards the father and at times became quite close to him, but then rapidly moved away. Mr H said that he told the parties after that session that the child did not present to him as if traumatised emotionally by seeing the father, and in his oral evidence said that although the child had acted in an upset and agitated way, he did not appear to be afraid of the father and he did not assess that the child’s session with the father indicated that he was experiencing or re-experiencing trauma when seeing the father.
It is unlikely, in my view, that on the occasion of the swimming pool/shower event in 2007, any of the events described by the child could have occurred; indeed, as unlikely as the mother saying “Good” upon the child reporting to her that the father had “pulled his willy and put it in my mouth” on an occasion at the father’s unit (disclosure to Detective Senior Constable BK). I have dealt comprehensively already with the visit to S (disclosure to the mother). There is no evidence to suggest that, at S, the father could have had opportunity to put his fingers in the child’s bottom. The progressive other disclosures, without repeating them unnecessarily, provide progressive and unexplained variation. It must be borne in mind, however, that since the parties’ final separation, the father has spent very little time alone with the child, being for one hour on Father’s Day in September 2007.

The child’s initial disclosure to Detective Senior Constable BK did not occur until February 2008. The child said to the effect that he and the mother had a conversation about the subject matter of the disclosure, with the child reporting that the mother had said “Good” in relation to the disclosure. On one view, this singular piece of evidence smacks of the mother inviting the disclosure by promptive suggestion to the child, and then its rote repetition, although with variation, on the subsequent occasions I have mentioned, then embellishment, perhaps also as prompted by the mother. On the other hand, if what the child has said the mother said did not occur, then perhaps none of what the child disclosed occurred. The mother said she was surprised by the child’s disclosure to the policewoman. This is inconsistent with the child conveying to the policewoman that the mother had prior knowledge of it.
It is clear that any sexual abuse by the father of the child (1) could not have occurred at S, for reasons already explained; (2) could not have occurred during the one hour the child spent with the father on Father’s Day in September 2007, which occurred between 9.00am and 10.00am in a park, with, it is likely, the mother watching (I will refer to this in more detail below); and (3) is unlikely to have occurred on the occasion of the swimming pool/shower event, which long preceded the initial disclosure.
It seems to me that the most likely explanation for the child’s initial disclosure concerning the father was prompting by the mother, and that, with the sheer number of interviews, the child subsequently embellished the disclosures, possibly with further prompting or suggestion by the mother.
In the result, not only is there insufficient evidence to make a positive finding that the father has sexually abused the child, but I conclude without hesitation, and find that the father has not sexually abused the child nor been engaged with or engaged the child in any untoward inappropriate sexual activity. The powerful factors which lead me to this conclusion include that the initial disclosure was made six months after the parties’ separation; Ms M’s observation as to the child’s “robotic” manner of disclosure (second report, par 36 and the two following paragraphs each marked 37); and that, if the disclosures were intended to relate to the post separation period, there simply was no opportunity for the subject matter of the disclosures to have occurred.

Has the father physically abused the child

The mother’s material contains several allegations of physical violence by the father of the child before the parties’ separation in August 2007: see the extract as to the mother’s allegations. However, at the trial the matter of whether the father had physically abused the child focussed on Father’s Day in September 2007, when the child spent one hour with the father, unsupervised, between about 9.00am and 10.00am, being the only unsupervised time child has spent with the father since the parties’ separation.
The mother alleges that the child disclosed to her that on that occasion the father punched him in the stomach: see the mother’s trial affidavit, par 59, set out in the extract. However, the mother gave three versions of when the child made this disclosure, variously on Father’s Day, on the Tuesday following and on another later date.
The extract shows that the child’s disclosures of physical abuse by the father were made not only to the mother, but include later disclosures that the father “puts his hands” on the child and “squeezed his neck” (Ms S); the father has punched the child in the chest, “choked the child”, punched him “in the belly” and “hurt him very much” (Detective Senior Constable BK); and the father had “put his hands around my neck and choked me” so “I couldn’t breathe” (Ms M).
The child’s disclosure concerning being choked, or squeezed around the neck, may relate to preseparation inappropriate discipline by the father. I do not propose to deal with these preseparation matters save to observe that several of the events described, if true, clearly amount to physical abuse by the father of the child.
As to Father’s Day in September 2007, I accept the father’s evidence that he collected the child from the mother at her home, set out on foot with the child towards a park, and that when he returned the child to the mother’s home at about 10.00am she was not there, arriving shortly after that time. It seems likely that the mother, despite her protestation to the contrary, followed the child and the father in a vehicle (although they were on foot) and placed herself in a position of observation. The father said in this regard, which I accept, that on his arrival at the mother’s home he heard the child say to the mother “the pink slide”, as if to indicate that is where he would be with the father in the park. If the mother followed, she would have been able to make direct observation if during that one hour the father had punched the child, rather than to have to rely on disclosure by the child. As observed already, there is confusion in the mother’s own evidence as to on what day the child made the alleged disclosure. Further, by the time of the child’s disclosures to others as to having being “punched” by the father, variously, “in the chest”, and “in the belly”, there had been ample time for the mother further to coach the child, or for the child to embellish the disclosure.
On all of the evidence, I conclude without hesitation, and find that on Father’s Day in September 2007 the father did not punch the child or in any way physically abuse him.

Unacceptable risk of sexual or physical abuse

Based upon the findings which I have made, I find further that there is no identified risk, on the evidence, of sexual abuse by the paternal grandfather or the father of the child should the child live with the father.
In so finding, I reject the case urged by Mr Crisp of Counsel, for the mother, as previously set out, that the “wider view” of all of the child’s disclosures and/or alleged disclosures and “all of the past conduct of the father” has the effect of coming within point seven of Mr Fogarty’s seven point summary such that, by “accumulation of factors” I should find that there is unacceptable risk to the child of sexual abuse by the paternal grandfather or the father. Specifically, in finding that there is no identified risk, on the evidence, of sexual abuse of the child by the paternal grandfather or the father, it is unnecessary to proceed to any “balancing exercise” of considering if any identified risk of harm to the child from his spending time with the father or indeed the paternal grandfather outweighs any possible benefit of spending time with the father or indeed the paternal grandfather.
In relation to physical abuse by the father, whilst I accept that during the parties’ relationship the father may well have been violent to the child, his affidavit evidence explains that at the time he was frustrated with the mother, which relationship is now over. Whilst not an excuse for violence, I am satisfied that the father’s affidavit evidence explains its context.
I conclude therefore also that there is no identified risk of the father presently or in the future physically abusing the child, and similarly therefore it is unnecessary to proceed to any “balancing exercise”.

The child’s best interests – the statutory matters

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

The father, in all outward respects, impresses as a very decent young man with whom there would be benefit for the child in having a meaningful relationship.
However, Ms M observed that the father appears to have “another side” as the perpetrator of family violence disguised as or minimised by him as being “playful”. There is reference, in particular, to evidence that before the separation the father sat on the mother and “farted” on her. The father described the incident as innocent but the mother as violent. In fact, the mother suffered two broken ribs.
The circumstances of the child’s estranged relationship with the father since the parties’ separation are difficult. However Mr H said, as I have mentioned, that in his observation the child did not appear to be fearful of the father and in his assessment did not appear to be traumatised emotionally by seeing the father.
The child presently has a close relationship with the mother. However, Ms M in several parts of her reports described it as enmeshed: see her second report, 20 January 2009, pars 50, 51, 53, 56 and 60. In other parts of her evidence Ms M described the mother as over-protective of the child and that she smothers him. Indeed there is evidence to the effect that even when the child was 4 ½ years the mother would cradle him on a sofa and bottle feed him, holding the bottle for him. See ex 7. The mother disputes this, emphasising that the item in ex 7 was a cup, not a bottle, and had a mouth shaped sipper, rather than a baby’s bottle shaped teat. Ms M has observed nonetheless, that the child in very recent times has reverted to infantile behaviour with the mother: see Ms M’s second report, 20 January 2009, dot point 6 on p2 and pars 25, 30, 44, 46, 48 and 60. Further, of great concern, as I have identified already, is that the child’s disclosures appear to have the hallmarks of prompting or coaching by the mother.
Ms M’s observation in her second report, 20 January 2009, bears setting out:
60.But it is of concern that should this relationship continue in its present pattern, then [the child’s] future psychological development and maturity is highly likely to be compromised.
In her oral evidence on 4 June 2009, Ms M said that there are indications that “[the child] is controlling the mother” and that there were “a lot of things” that could lead the child to have difficulty in later life forming relationships, in essence, because of the mother’s enmeshed relationship with him.
Ms R, the child’s school counsellor, annexed to her affidavit her therapy session notes which included that the child had selected a “white lady” figure to represent the mother, and that he “kept stroking the white lady affectionately – like he had to protect it.”

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

I have determined already that there is no identified risk of sexual or physical abuse of the child by the paternal grandfather or the father, and consequently no unacceptable risk of such.
I have referred to, and set out, Ms M’s observation at par 60 of her second report, to the effect that the child’s future psychological development and maturity is likely to be compromised if the enmeshed relationship with the mother should continue in its present pattern. It would appear on the evidence that before the separation the father subjected the child to disciplinary measures which, if their description be accurate, amount to child abuse. However, I accept the father’s evidence that his life with the mother was difficult and frustrating, many examples of which are provided in his affidavits, leading it seems to polarised views in some respects as to the child’s upbringing. On the present state of the evidence there is no reason to think however that the father’s inappropriate discipline of the child would be likely to recur or that otherwise he would physically abuse him.
There is no case of neglect of the child.

Section 60CC(3) – the additional considerations

Any views expressed by the child

The child repeatedly and consistently in recent times has said that he does not want to see the father nor have anything to do with him.
However, the nature of the issues in the case, its history, and the child’s age have effect that little weight should be given to his views.

The nature of the child’s relationships

I have referred sufficiently to the nature of the child’s relationship with each of the parties.
Until the child’s disclosures relating to the S visit with the paternal grandparents in May 2007, it appears that the child enjoyed a happy and trusting relationship with the paternal grandparents.
There is little evidence as to the child’s relationship with the maternal grandmother, the maternal grandfather or the mother’s sister and the maternal aunt and other members of the mother’s extended family. However, I will say more below about the maternal grandmother’s beliefs and potential effect on the child of those beliefs.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

There is no reason on the evidence to conclude that, despite the matter of the child’s disclosures and the mother’s potential involvement in causing or prompting or coaching them, the child’s father does not have willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother.
In contrast, the mother’s continuing belief, as put candidly by Mr Crisp, that the subject matter of the child’s disclosures actually occurred has effect in my view that she is not able to value the child’s need for a relationship with the father and in the circumstances does not have willingness or ability to facilitate a close and continuing relationship between the child and the father. Indeed, on all of the evidence, I conclude that the mother has a little willingness or ability to value or accept that the child would benefit by having a relationship with the father. I am conscious that the mother said in parts of her evidence that she would accept the Court’s decision in relation to whether there has been sexual abuse, and whether there is unacceptable risk, and that she based her alternative proposal, as I have mentioned, on the week about basis in that event. However, having seen the mother in the witness box, and heard Mr Crisp’s candid submissions as to the mother’s continued belief, I have no confidence in her ability to be persuaded by my findings that her beliefs are wrong and that in consequence she would value and promote a relationship between the child and the father, particularly because of her enmeshed relationship with the child.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living

Ms M, in a third short report (undated) annexed to her affidavit filed on 4 June 2009, prepared during the hearing, referred at par 2 to the child’s likely reactions to separation from the mother, given their close and enmeshed relationship:
·    Anger - tantrums, rejection of [the father]
·    Confusion – especially as [the child] presents as believing that he has been physically and sexually abused by [the father]
·    Sadness at separation from [the mother] – withdraw, crying, regression
·    Fear/anxiety – likely to lead to sleep disturbance and bed wetting, general anxiety.
In her oral evidence on 4 June 2009, Ms M agreed with the proposition put to her that if the child should be moved to the father’s home any difficulties in the short term would be outweighed by the benefit to the child of not continuing in the enmeshed relationship with the mother.

Practical difficulty and expense

This matter did not assume great significance.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

I have referred sufficiently to the evidence concerning this aspect of the matter, including Ms M’s view as to the child’s infantile regression observed by her when the child was with the mother.
There was little evidence as to the child’s intellectual needs.
Ms M, in her oral evidence, which I accept, said that the child’s principal need at present is to have the “uncontaminated” opportunity to form his own opinion of the father. In this context, it is plain that Ms M meant uncontaminated by the mother’s views and the views of the maternal grandmother, who in her oral evidence said that she believed the subject matter of the child’s disclosures, in particular that the paternal grandfather had “made a milkshake” with his penis in a cup and that the father had put his “willy” in the child’s mouth.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

This matter has been canvassed sufficiently.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The parties each love the child. To the extent that one of the responsibilities of parenthood may be to encourage a close and continuing relationship with the other parent, sufficient observation has been made.

Family violence involving the child or a member of the child’s family or family violence order

I have referred already to allegations by the mother of violence by the father to herself and the child before the separation. The material shows the making of at least one protection order against the father by consent on 17 July 2007, which on 22 July 2008 was varied by consent to continue in force until 21 July 2010.

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

The circumstances are such that there may be no order that would be least likely to lead to the institution of further proceedings in relation to the child.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

It is necessary to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with and communicate with the child and has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with and communicating with the child and has fulfilled or failed to fulfil the parental obligation to maintain the child.
It is not necessary to revisit the evidence. These matters, to the extent relevant, have been sufficiently canvassed.

Discussion and conclusions

The mother seeks sole parental responsibility. My findings have the effect that there is no basis to exclude the father. The appropriate order in my view is, as urged by the father and the independent children’s lawyer, that the parties have equal shared parental responsibility for the child. Accordingly, I will order that.
In relation to the parties’ competing proposals, and the ultimate proposal put by the independent children’s lawyer, it is significant that I have determined that neither the paternal grandfather nor the father has sexually abused the child, nor been engaged with or engaged the child in any untoward inappropriate sexual activity, and that after the separation, and in particular on Father’s Day in September 2007, the father did not physically abuse the child.
Further, it is significant that I have determined that there is no unacceptable risk of sexual abuse of the child by the paternal grandfather or the father, nor physical abuse by the father.
I have referred, at the commencement of these reasons, to the independent children’s lawyer’s initial position in submissions that it would be in the child’s best interests for there to be an equal time order, specifically, week about. Further, having regard to the circumstance that there is to be an order for equal shared parental responsibility, the statute dictates that an equal time order is a matter which I am required to consider, and, according to Full Court authority, to consider positively. However, as explained, the independent children’s lawyer’s initial position changed once it was realised by reference to the written submissions of Mr Crisp of Counsel, for the mother, that the mother’s position remained that she has a genuine belief that the subject matter of the child’s disclosures actually occurred. As I have said, in my view this belief in turn has the likely effect that the mother is not able genuinely to value and thus facilitate and encourage a relationship between the child and the father. Further, the evidence indicates that she does not have the ability to cooperate with the father in relation to the child, such that an equal time order would not be likely to be in his best interests. There is also the circumstance of the child’s enmeshed relationship with the mother, and perhaps the prospect of continued prompting of the child or coaching of him against the father as a “bad” or “naughty” person in the child’s life. Moreover, despite the independent children’s lawyer’s initial recommendation for week about time, such was contrary to Ms M’s firm evidence against a week about arrangement for the want of its “workability”. In that regard Ms M said that the positive factors for equal time, including week about time, were geographical proximity of both parties’ residences to each other, both being comfortable homes, and proximity of each to the child’s school, but “I don’t think it would work because it would require quite a lot of communication between the parents”. In relation to what Ms M described as “flip flopping” between the two homes, for week about time, Ms M anticipated this would be very difficult and recommended that the child should live primarily with one parent and spend time with the other. Thus, despite initially recommending a week about relationship, the independent children’s lawyer, as explained, ultimately supported Ms M’s recommendation.

Having regard to Ms M’s evidence, although I have considered whether an equal time order would be in the child’s best interests, and considered that positively, in all of the circumstances of the case I conclude that it is not.
As to whether the child thus should live primarily with the mother and spend time with the father or live primarily with the father and spend time with the mother, it is significant that Ms M has described the enmeshed relationship between mother and the child and warned of difficulties for the child if that enmeshed pattern should continue. Further, there is the circumstance of the mother’s continued belief in the subject matter of the child’s disclosures such that if the child should live primarily with her he would be exposed to a greater extent to the prospect of the mother imparting her belief to the child or deliberately or unwittingly prompting other disclosures. In contrast, if the child should live primarily with the father, although the child presently is estranged from the father and inevitably there would be short term difficulty as explained by Ms M, such would be outweighed by the benefit to the child by not continuing in the enmeshed relationship with the mother. The father works as a tradesman, however gave evidence that he is able to be flexible in his working hours to ensure availability to the child before and after school. The father has also the support of his family, being the paternal grandfather, the paternal grandmother, and his brother Z. The father candidly said in evidence, in respect of his new relationship, that the child is his priority.
On balance, having regard to the evidence, the submissions, and the statutory matters which I must consider, including the objects of the Act and the principles underlying the objects, in my view the child’s best interests would be served by living primarily with the father and spending time with the mother.
As to the amount of that time, it was canvassed with Ms M whether an eight nights/six nights or a nine nights/five nights arrangement would be in the child’s best interests, or an extended weekend in alternate fortnights with an overnight in the off week. Ms M favoured however, ten nights with the father/four nights with the mother, as carefully explained by her, which recommendation I accept, is in the child’s best interests, and I will so order.
Further, both the father and the independent children’s lawyer urged that for one month, that is before any shared care regime should commence, the child should live with father and have no communication with the mother. Ms M supported this, agreeing that the child should have the “uncontaminated” opportunity to form his own view of the father, which she identified as the child’s “principal need”, before any regime of shared time should commence. I accept this view, and accordingly will so order.
During submissions Mr Crisp made clear that the mother does not raise any R v C [1993] FamCA 62 argument in relation to the mother. This, it appears, is despite the evidence of Ms Q, the mother’s treating psychologist, to whose evidence thus it is not necessary to refer.
Finally, the father sought and the independent children’s lawyer supported an order that the child not be left unsupervised with the maternal grandmother. I have mentioned already the maternal grandmother’s beliefs. In cross examination, she was unable to be moved in her intractable belief that the paternal grandfather and the father have sexually abused the child. Further, there is evidence of a very close relationship between the mother and the maternal grandmother. Although the maternal grandmother is a significant person in the child’s life, I am satisfied that the extent and severity of her beliefs, and her consequent attitude to the father, demonstrated plainly in the witness box, has effect that such a restraint order would be in the child’s best interests and I will make it in the terms sought.
The orders which I have formulated include several other orders relating to communication, information and the like which are sensible and in my view are in the child’s best interests, and are not matters of contention. Accordingly I will make those orders.
I will include also an order that despite these orders the parties may make other arrangements in relation to the child spending time with each of them, provided that such other arrangements are agreed in writing, to avoid unnecessary recourse to the Court in the future to vary the orders if the parties should be able to agree convenient variation. In my view, such an order is also in the child’s best interests, in the hope that future litigation concerning him can be avoided.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:

Date: 22 July 2009

[2009] FamCA 641

22 July 2009

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Family Law

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