GENNARO & GIAVANNA
[2011] FamCA 910
•2 December 2011
FAMILY COURT OF AUSTRALIA
| GENNARO & GIAVANNA | [2011] FamCA 910 |
| FAMILY LAW – CHILD ABUSE – Magellan case – allegations of sexual abuse of the child raised by the child and mother against father – inconsistency of allegations – where mother alleged the father abused the child despite supervision by separate supervision agency – where father’s relationship with child was a close and affectionate one and able to be quickly restored despite long periods apart – no evidence of physical injury to the child despite allegations by mother of serious sexual assaults on child - finding that the father does not pose an unacceptable risk of sexual abuse to the child FAMILY LAW – CHILD ABUSE – risk of emotional abuse of child by mother – where mother constantly questions child about father’s conduct – mother pressures child to make complaints to third parties about father not arising from child’s own experience – several complaints by mother to third parties of abuse of the child and presents child for medical examination and forensic interview – where there is a risk that the child will have a discordance between her own emotional response to the father and the view of the father presented and reinforced to the child by the mother – finding that the mother poses an unacceptable risk of emotional abuse to the child if the child continues to live with the mother or spends unsupervised time with the mother FAMILY LAW – CHILDREN – parental responsibility – where the mother is the child’s primary carer – mother opposes relationship between the child and father – where the child has a close and loving relationship with the mother – where the father’s relationship with child was a close and affectionate one and able to be quickly restored despite long periods apart – where a change of child’s residence is necessary for child to maintain a positive relationship with both parents and is unlikely to lead to further allegations of child abuse - presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the father FAMILY LAW – CHILDREN – with whom a child shall live and spend time – orders made for child to live with father and to spend supervised time with mother |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA |
| M & M (1988) 166 CLR 69 |
| APPLICANT: | Mr Gennaro |
| RESPONDENT: | Ms Giavanna |
| FILE NUMBER: | (P)SYC | 1234 | of | 2009 |
| DATE DELIVERED: | 2 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 26, 27, 28, 29 & 30 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cook |
| SOLICITOR FOR THE APPLICANT: | Storie Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Mr Spencer |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| FOR THE RESPONDENT: | Legal Aid NSW Ms Connor |
Orders
That all previous parenting orders be discharged.
That the child V GENNARO born … July 2006 live with the father.
That the father have sole parental responsibility for V.
3.1That the father shall advise the mother in person or by telephone or in writing (including email or SMS text) of long term issues arising for consideration in relation to V including but not limited to:
3.1.1change of enrolment at school;
3.1.2enrolment in extra-curricular activities;
3.1.3attendance at medical specialists;
3.1.4religious instruction.
3.2The mother may within 21 days of receiving such notice respond to the father in person, by telephone or in writing (including email or SMS text) to advise him of opinion or suggestion in relation to the issue.
3.3The father shall take into account the views of the mother in coming to any decision on a long term issue and shall advise the mother of his decision on each occasion.
That V shall spend time with the mother as follows:
4.1Until V starts school in 2012:
4.1.1twice per week at a Contact Centre for the maximum period of hours permitted by that facility, being one weekend occasion and one week day occasion, the costs of such contact to be shared equally between the parents;
4.2From the commencement of school in 2012 until the commencement of school in 2014:
4.2.1on one occasion each weekend
either at a Contact Centre for the maximum number of hours permitted by that facility;
OR
supervised by Contact Service A for a period of up to six hours, the costs of such contact to be shared equally between the parents.
PROVIDED THAT there has been no finding of Contravention by the mother of Orders 14 and 15 herein THEN unsupervised time between V and the mother shall take place as follows, unless otherwise agreed between the parties:
5.1 From the commencement of school in 2014:
5.1.1for one day of each weekend and for one additional day per week in each school holiday period, on each occasion from 9.00 am to 5.00 pm.
5.2From the commencement of school in 2015:
5.2.1each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday;
5.2.2for one half of school term holidays at times as agreed between the parties and in default of agreement:
for the first half of such school holiday periods from 6.00 pm on the last day of the school term to 6.00 pm on the day that is midway through the said school holiday period in even numbered years; and
(b)
(b)for the second half of such school holiday periods from 9.00 am on the day that is midway through the said school holiday period to 6.00 pm on the day prior to the commencement of the ensuing school term in odd numbered years;
5.2.3for two periods of one week in each Christmas school holiday period at times as agreed between the parties and in default of agreement, for one week in December and one week in January, commencing December 2015;
5.2.4from 12.00 noon on 24 December to 3.00 pm on 25 December in holiday periods commencing in odd numbered years; and
5.2.5from 3.00 pm on 25 December to 6.00 pm on 26 December in holiday periods commencing in even numbered years.
That the Independent Children’s Lawyer shall provide to the father in writing, the names, addresses and contact details of each of the three psychologists recommended by Dr W.
The father shall make an appointment with one of the three experts notified by the Independent Children’s Lawyer for himself, his partner Ms M (if she so wishes) and V at the earliest mutually convenient time and thereafter shall consult with the relevant psychologist as needed for the benefit of V, himself and Ms M.
The father may provide to the nominated expert:
8.1a copy of these Orders and Reasons for Judgment;
8.2report of Dr W, Child & Family Psychiatrist dated 4 May 2005; and
8.3report of Ms R, Family Consultant dated 21 September 2011.
The father and the mother shall each do all acts and things necessary to arrange for the time between V and her mother at Contact Centre B (failing agreement otherwise between the parties as to a suitable Contact Centre) in accordance with Order 4 herein to commence as soon as possible.
The father may if he considers it necessary to do so, give to the Principal of the school which V attends, a copy of these Orders and show to the Principal a copy of the Reasons for Judgment, either at the time of enrolment or at any time in the future.
Until the conclusion of the pre-school year in 2011, the father shall ensure that V continues at … Pre-school for as many days per week as the father considers, in consultation with the Director of the pre-school, will benefit V AND shall otherwise provide day to day care for V himself.
The father may enrol V at K Public School to commence in 2012 and shall arrange for an orientation visit for V and himself in 2011 at a time and date to be arranged between the father and the Principal of that school.
In the event the mother seeks therapeutic assistance with coming to terms with the outcome of these proceedings the mother may provide to such therapist and to NO OTHER PERSON:
13.1a copy of these Orders and Reasons for Judgment;
13.2report of Dr W, Child & Family Psychiatrist dated 4 May 2010;
13.3report of Ms R, Family Consultant dated21 September 2011.
The mother is hereby restrained from the following conduct:
14.1speaking to V about the Court proceedings, including all of the evidence and these orders;
14.2speaking to V, or in her presence, about the allegations of abuse of V by the father and/or statements made by V relating to alleged abuse of her by the father;
14.3questioning V about her care in the household of the father; and
14.4instructing V to make complaints about the father to third parties.
The mother is hereby restrained from criticising the father and/or members of the father’s extended family in the presence or hearing of V AND FURTHER the mother shall make every effort to ensure that friends and family members are similarly restrained.
The father is hereby restrained from criticising the mother and/or members of the mother’s extended family in the presence or hearing of V AND FURTHER the father shall make every effort to ensure that friends and family members are similarly restrained.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gennaro & Giavanna is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P)SYC1234 of 2009
| Mr Gennaro |
Applicant
And
| Ms Giavanna |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This is a dispute between two parents, both aged in their forties, over their only child V (“the child”) aged 5 years.
The parents began a relationship in 2002 and married in June 2005. The child was born in July 2006. They separated between November 2007 and January 2008.
During the marriage the parties lived first in the home of the paternal grandfather at F, then in the home of the maternal grandparents at G and for the last four months, in their own family home (the father’s property at P). That four-month period was the only time that the parties lived alone with their child.
During the marriage the mother provided most of the day-to-day care of the child. Indeed, the main complaint the mother made about the father was that he spent too little time with her and their daughter. The father acknowledged in a note of apology[1] that time as a family had been limited.
[1] Affidavit of mother sworn 25/09/2009, par 15 and annexure A.
The mother went to hospital for surgery just before the final separation. The parties argued over arrangements for the care of the child. The mother urged the father to take leave from work and look after the child himself. The father preferred the child to be cared for by the maternal family. Ultimately he took somewhere between three to five days off work to look after his daughter before placing her in the care of the maternal grandmother. At the time the mother was critical of this decision and disappointed by what she saw as his lack of fatherly commitment.
After separation the father returned to live in his father’s home at F.
The mother lived with the child in premises in F leased and paid for by the father. The properties were about one kilometre apart. The parties easily agreed on a pattern of time for the child to spend with her father, being Saturdays from about 11.00 am to 6.00 pm and most Wednesday afternoons for a couple of hours.
This pattern continued until early May 2009, a period of about 16 months. There were no Court orders and no request or requirement for supervision. Both parties were apparently content with the arrangement.
During 2008/2009 the child suffered from ear nose and throat problems including two bouts of tonsillitis which took her to hospital. The mother was inclined to hold the father responsible for these illnesses. However there is no evidence of any complaint to a third-party by the mother of mistreatment of the child by her father. Some concerns as to whether he had enough food to give her were the extent of it.
The mother asserts in her first affidavit filed on 25 September 2009 that the child had been complaining to her and making alarming statements suggestive of abuse going back to separation in January 2008. However, significantly, no such statements were repeated or referred by the mother to any other person in the whole period from separation to May 2009.
There were a great many people who saw the mother and child to whom reports could have been made.
Dr N in F had been the mother’s general practitioner since at least 1993 and she continued to consult him.
Dr J was the child’s general practitioner. Her first visit to him was within her first few weeks of life. He was regularly consulted.
Ms E was a psychologist with rooms at the same address as Dr J. She saw the mother by referral from Dr J on a regular basis from August 2007 to October 2010. She was treating the mother for depression and anxiety assessed by her to be in the severe range. There were regular consultations and reports back to Dr J.
Dr C, Paediatrician reviewed the child at least from November 2007. His reports relate to her development of swollen breast tissue as a very young infant and also respiratory/ENT problems[2].
[2] Exhibit ‘F9’ – Report of 05/03/2009.
The parties went through an unpleasant episode on 1 October 2008. The father came to tell the mother that he intended to cease paying her rent. The mother said she was upset about that and also confronted the father about the child’s regular illness. The parties argued. The father left, on his evidence to avoid his daughter becoming frightened, on the mother’s evidence because he was not interested in her concerns. In any event, the parties agree that the father accidentally left his car keys in the mother’s flat and she would not permit him to come back in to get them.
The father forced the door of the flat, breaking a panel of glass. He went in retrieved his keys, knocking the mother’s telephone to the floor. The mother says deliberately, the father says accidentally. They agree that the father repaired the damage to the house, at least on a temporary basis. The mother reported the matter to the police. The police records include a statement by the mother: “Mother says there has never been any (previous) violence between parents”[3].
[3] Exhibit ‘F12’ – Contact Report 02/10/2008 DoHS file.
The following month the mother and the child moved to rented premises in D. The mother continued to be assessed by her psychologist,
Ms E as severely anxious and severely depressed.
However the parties got past this episode. They then lived about eight kilometres apart. The child continued to regularly spend between five and eight hours on Saturdays with her father and members of his family.
On 4 March 2009 the father applied for a divorce.
On 7 May 2009 a letter was sent from solicitors for the father[4]. It referred to a change in the father’s circumstances. His income had dropped due to less work being available. He set out two consequences:
1. He would now need to work on Saturdays when work was available;
2.Although he would continue to pay child support at the same rate, he would likely be unable to give additional money as he had in the past from time to time.
[4] Affidavit of father filed 21/07/2009, Annexure ‘A’.
This was a request for a change from Saturdays to Sundays for time with the child. Rolled up with that request was a proposal that overnight time now start. The proposal was a fairly modest one for a child of now almost three. On Sunday all day on one weekend and on the alternate weekend from Saturday evening to Sunday evening. There was a reference to flexibility for special events involving the extended maternal family. There was no reference to litigation or the need for orders.
The mother was cross-examined on the basis that the reference in this letter to a reduction in financial support had caused her to stop allowing the child to spend time with her father. I do not consider that this is the complete explanation but the letter does represent a turning point in the mother’s attitude.
From early May 2009, the child saw her father only once in the nine months that followed. That was for two hours on her third birthday (July 2009) in the park with many family members present.
It seems that from May 2009 the mother became implacably opposed to the child spending time with her father. The father asserts that the mother wanted him to have no time with the child at all.
In the period between May 2009 and February 2010. There was intense activity by the mother and relentless involvement for the child in interview and examination.
May 2009 also marks the beginning of reported statements by the child to third parties (including her mother) suggestive of sexual abuse by the father.
History of the litigation
The father was the original applicant, although the mother was ultimately treated as the applicant in this hearing. The father filed his Initiating Application in the Federal Magistrates Court on 21 July 2009. It was subsequently transferred to this Court.
On 25 September 2009 the mother filed her first affidavit. It is in this document that allegations of misconduct by the father appear for the first time.
On 7 October 2009 a request was made for intervention and a Magellan report by the Department of Family & Community Services (DoCS).
On 16 February 2010 interim orders were made by a Judicial Registrar which provided for the father to have supervised time in a Contact Centre.
On 17 March 2010 a single expert was appointed, Dr W, Child and Family Psychiatrist.
On 15 November 2010 the matter was listed for final hearing.
The hearing did not proceed. By consent interim orders were made. These orders provided for a progression of time between the child and her father over a six month period, from supervised to unsupervised, progressing to overnight contact by May 2011. Supervision would be provided by private supervisors. A psychologist was appointed to provide counselling and therapy to the parties during this transition.
On 9 February 2011 the psychologist wrote to the presiding Judge[5] to advise that the child had disclosed abuse by her father. Unsupervised time had not commenced.
[5] Exhibit ‘ICL 6’ – Letter from Ms Y to The Hon. Justice Barry.
On 10 March 2011 the mother filed an Application in a Case, and a second Notice of Child Abuse, seeking to stay orders for unsupervised time. The mother alleged that the child had been abused by the father more than once, allegedly during periods of supervision.
On 14 March 2011 an agreement was apparently reached between all parties for time between the child and her father to continue to be supervised despite the orders of November 2010. Consent orders were drafted to that effect and implemented by the parties.
On 2 May 2011the father filed a Response to the Application in a Case seeking residence. An Amended Application filed on 1 July 2011 was in the same terms.
On 4 May 2011 the solicitor for the mother filed a Notice of Ceasing to Act.
On 8 July 2011 directions for hearing were made. The mother was present representing herself. A request was made and granted for the mother to be treated as the applicant.
On 2 September 2011 the matter was relisted as the mother had failed to file the affidavits she had foreshadowed. The father had complied. On that occasion the mother was not present at Court. The Court was advised that the mother had been taken to hospital early that morning. Mr Russo solicitor appeared on behalf of the mother. Mr Russo advised the Court that he had a grant of legal aid but was yet to confirm his instructions to appear. The mother did not attend for her scheduled interview with the family consultant on that day, due to her attendance at hospital. The time for filing and serving of affidavits was extended.
On 16 September 2011 the matter was listed for further directions. The mother was present. Leave to appear was granted to a para-legal (Ms A) from the office of Mr Russo solicitor. Mr Russo had himself been recently taken to hospital, being seriously ill. The mother and the child had been seen by the family consultant on the morning of that day.
An application by the mother for an adjournment of the hearing was made and refused. Ms A advised that a solicitor practising in Richmond would be available to take over the matter. That proved to be the case.
The mother was granted legal aid and was represented by a solicitor and counsel for the hearing.
On 26 September 2011 the first day of hearing, there was a further application on behalf of the mother for an adjournment. The application was declined and short reasons given orally.
The hearing was conducted with the mother as applicant. Leave was granted to the mother to file in Court additional affidavits.
Events affecting the child from May 2009 onwards
The father says that the last time the child spent time with him (unsupervised) was the weekend prior to the despatch of his solicitor’s letter of 7 May 2009 that is, on Saturday 2 May 2009. The father’s diaries for 2008 and 2009 were referred to as exhibits to his affidavit[6]. The two diaries were available throughout the hearing and had been offered for inspection prior to it. The entries are consistent throughout in terms of handwriting and nature of report. There was no challenge to their authenticity. There are entries for May 2009 as follows[7]:
Saturday 2 May: I picked up [the child] from [D] at 10.30 am. I took her back 7.00 pm.
Saturday 9 May: [The mother] won’t let me see [the child] because I won’t give her extra cash money.
Sunday 16 May: I went to [D] at 9.30 am to try and see [the child] but [the mother] won’t let me. She said if I go back there she will call the police. I just want to see [the child] because I miss her and my dad is very upset. It’s all because [the mother] wants more money.
[6] Affidavit of father filed 28/01/2010, par 41; Exhibits ‘LG2’ & ‘LG3’.
[7] Exhibit ‘LG3’.
I find that the child last spent unsupervised time with her father on 2 May 2009.
The mother during cross-examination referred to having kept a diary of events over the relevant period. The diary was brought to Court on the fourth day of hearing after repeated requests. That diary was not tendered into evidence. The evidence of the mother is as follows[8]:
[8] Affidavit of mother filed 25/09/2009, par 45.
On May 2009 at 7.30 pm after returning home to me from spending time with her father, [the child] had what to me appeared to be a bad attitude and mood swings. We had a conversation in or to the following:
[V]:Mummy it is your fault.
Me:What is my fault?
[V]:It’s your fault mummy. You ugly mummy and I pretty.
Me:That is not nice. Who says that?
After some general conversation and playing [the child] appeared to become upset and said to me:
The boys with daddy are very naughty smack and biting me and pushing me. I want to stay at your house.
The mother then goes on to say that she was concerned there was something not right about all of the child’s time spent with her father and recounts complaints said to have been made by the child at unnamed periods in the past[9]. The mother then goes on to say[10]:
From the events and conversations described in paragraphs 19, 20 and 22 of this affidavit I considered [the father] was not competent to spend time with [the child] overnight.
[9] Affidavit of mother filed 25/09/2009, par 46.
[10] Affidavit of mother filed 26/09/2009, par 47.
In her affidavit the mother asserted that frequently after the father had spent time with the child he returned her in an untidy state with dirty face and clothes, hungry and thirsty. The mother then says at paragraph 48:
On or about 9 May 2009 I was very concerned about [the child] waking up and screaming the day after access by [the father]…
It goes on:
I became concerned for her welfare, safety and development that I spoke to [the father] when he returned [the child] to me at the conclusion of his access with her on 9 May 2009 and had the following conversation with him…
The mother then sets out the conversation she asserts she had with the father alleging that the child woke up with bad dreams every Sunday morning after she had spent time at her father’s house the previous day, that boys and girls at the grandfather’s house are naughty to her, they smack and bite her and lick her back and push her and she does not want to go there.
The mother then went on to complain that these events happened because the father was failing to look after the child. She asserts she said to him[11]:
You are always working on your bike. She is your daughter too. You should make it your important business to find out what is happening to her when she is with you.
Finally her concluding statements in this alleged conversation:
From what I understand is happening to her it is very serious and you do not know about it and she is suffering. Because of this you cannot have her overnight and you can see her on Saturdays but you must stay here with her and you cannot take her away because you do not know what is going on or happening to he(r) when you are supposed to be spending time with her and looking after her.
[11] Affidavit of mother filed 25/09/2009, par 48.
It is clear that the mother was well aware on 9 May 2009 that the father was both seeking to have overnight time with the child and that he wished to change the day from Saturday to Sunday and in the future including an overnight on Saturday.
There is no reference in this affidavit of the mother as to how she knew that this was the father’s intention. I accept that the information came from the letter of 7 May 2009 from the father’s solicitor. In her affidavit[12] the mother goes on to say: “[The father] had spend time with [the child] from 11.00 am to 7.30 pm on Saturday 9 May 2009”. I reject this evidence.
[12] Affidavit of mother filed 25/09/2009, par 49.
The mother goes on to say that at 3.00 am the following morning she was awoken by the child screaming and crying and that she tried to comfort her by holding her and she went to sleep after an hour. If there had been an argument between the parents on the previous day the child may well have had a nightmare on that night. In that paragraph the mother went on to say[13]:
[The child] now frequently wakes up at night screaming and telling me of things that happen to her when she is with [the father]. I was very concerned for the welfare and development of [the child] and I decided to make an appointment for [the child] to see a child psychologist, for the purpose of having her assessed and any problems identified and treatment arranged.
[13] Affidavit of mother filed 25/09/2009, par 49.
In fact the mother told Dr J about the child’s nightmares, behavioural problems and allegations of misconduct by her father and the doctor made a referral for the child to a Clinical Psychologist, Dr O. The child had her first session with Dr O on 7 July 2009.
The Child’s third birthday party
It is common ground that the mother allowed the father to attend the child’s third birthday party in a park on … July 2009. The father and his sister came to the party and spent approximately two hours with the child. There is no explanation for why the mother allowed this time, or would not agree to any other time between May 2009 and February 2010. The father was unaware at this time of any complaint of sexual misconduct.
The Affidavit of 25 September 2009
In her affidavit of 25 September 2009 the mother says the child awoke in the early hours of the morning of Thursday 3 January 2008 screaming out and saying ‘pink monster, the pink monster.’ She was in a dream state screaming, crying and appeared to be in shock. This continued for 30 minutes. She did not return to sleep until 3.30 am a period of an hour and a half[14].
[14] Affidavit of mother filed 25/09/2009, par 27.
On 11 January 2008 the child is alleged to have asked her mother whether she was a boy or a girl and stated that her father said that she V was a boy.[15] The mother then goes on to say that in mid January she informed the father that the marriage was over and said words to the effect, “You have never spent any time with me or [the child]. We had never had a true family. It is now over”[16].
[15] Affidavit of mother filed 25/09/2009, par 28.
[16] Affidavit of mother filed 25/09/2009, par 29.
The parties had separated in November 2007. The mother refers to there being a permanent separation on 17 November 2007, so this conversation came two months after separation and clearly represented the mother’s intention to put an end to the prospect of reconciliation. Yet the mother said nothing to the father at that time about the nightmares and shock, the calling out about a pink monster or the strange conversation where the child, aged 18 months, is said to ask her mother about being a boy or a girl. If that conversation between mother and daughter did take place, it clearly was not sufficiently of concern to the mother for her to make any complaint to the father in mid January 2008 when she finalised the marriage. Her complaint that the father was insufficiently involved with the child and herself.
On 1 October 2008[17], the mother asserts that she said to the father:
Why does [the child] always have when you return her home to me (sic)? Why is she always sick? Where are you taking her for this to happen to her?
This is the occasion already referred to in these reasons, when the father broke into the mother’s flat to retrieve his keys. I accept that the child would have been upset and frightened on this occasion.
[17] Affidavit of mother filed 25/09/2009, par 35.
Next the mother says that in February 2009 the child complained that her back was sore because her father dropped her on the floor[18]. She further states that on 14 February 2009 the child had returned from time with her father saying, “Noo noo sore” (the child’s word for her vagina). Apparently there was no injury or treatment.
[18] Affidavit of mother filed 25/9/2009, par 40.
On 24 February 2009 the mother says the child was kneeling on all fours to have her nappy put on saying, “Put [cream] on”[19]. The mother thought the conduct was unusual. The mother reports that the child was having bad dreams and waking up screaming in the early hours of Sunday mornings after spending time with her father the previous day.
[19] Affidavit of mother filed 25/9/2009, par 42.
On 2 May 2009 the child is reported by her mother to have come home from time with her father with a bad attitude, referring to her mother as ugly and herself as pretty. She did not answer the question “who says that.”[20] She then reported, “The boys with daddy are very naughty, smack and biting me and pushing me I want to stay at your house” and that at some unknown time during this period between January 2008 and May 2009, the child is reported to have said, “I not go to Daddy’s house the boys and the girls are pushing biting and smacking me. The boys tease me I wear nappies. Daddy leaves me with the boys he’s in the garage with his friends.”[21] The mother reports the child returning in an untidy state, face and clothes dirty, child hungry and thirsty and she challenged the father about those matters.
[20] Affidavit of mother filed 25/9/2009, par 45.
[21] Affidavit of mother filed 25/09/2009, par 46.
No other conversations between the father and the mother up to May 2009 are reported. Assuming that I accepted the evidence of the mother in its entirety about those conversations with the father, it is impossible to see why all contact stopped. Given that the mother had continued to provide the child for contact throughout the period from January 2008 to May 2009. On balance I consider it more likely that other than nightmares, there was no complaint by the child about her father before May 2009, which is consistent with the entire absence of reports to third parties prior to May 2009 of their being any problem. There is no realistic explanation for contact ceasing.
On 6 July 2009, the child is reported to have said:
At poppy’s house boy takes my nappy off and a little girl is there. The boy puts me and the other little girl on the bed and the little girl call out for our mummys but you’re not there mummy you’re at home you can’t hear me[22].
and on the same day
The pink monster wakes me up while I sleeping. It takes the blanket off and puts me on his bed and starts smacking me. He takes me to the moon and mummy when its get dark the pink monster takes me back to my house
and on the same day or early in the morning of the following day:
The pink monster mummy. The pink monster takes me back to your house when it gets dark and then I see you mummy and I am happy. I am mummy I am with you.
[22] Affidavit of mother filed 25/09/2009, par 53.
If it is the case that the child was saying those things on 6 July 2009, they could only have referred to events prior to 2 May 2009. I accept that the child may have been having nightmares, but in the event that she had actually been smacked and left unattended on a bed, it is likely to have been raised at the relevant time, or at least for the mother to have observed the child distressed when she was returned.
Some days after this alleged conversation, the father and paternal aunt attended the child’s birthday party. On her own evidence the mother does not raise relevant concerns.
At paragraph 56 the mother says that she was so concerned that she decided to take the child to Ms E, Psychologist. She says she did so on 11 July 2009. The mother does not refer to the fact that Ms E had been her own treating therapist for two years by this time. Nor does she explain why an additional psychologist to Dr O would have been necessary.
Ms E denied that the child was bought to see her on 11 July 2009. In the witness-box she checked her notes and confirmed that had not occurred. What did occur was that the mother made allegations on that date which caused Ms E to make a notification to the Department of Community Services.
On 22 July 2009 the mother says she had a conversation with the father when he asked to see the child. The mother said[23]:
You can see her either at my place or the park. I do not want her to go to your house because of what’s been going on with the boys kicking, biting and smacking her and the boy taking her nappy off.
[23] Affidavit of mother filed 25/9/2009, par 57.
The father is alleged to have denied the truth of such allegations. The mother then went on to say[24]:
If you do not believe what you do not believe what your daughter is saying to me than how can I allow [the child] to go over to your father’s house. I am very worried for our child’s safety in regards to who is coming and going to his father’s place when she is there with you and the boys taking her nappy off and doing things to her.
[24] Affidavit of mother filed 25/9/2009, par 57.
In her oral evidence the mother agreed that she had not asked the paternal grandfather anything about these allegations. The mother confirmed that she had a high regard for the paternal grandfather and had also told Dr W her opinion that the paternal grandfather was a “lovely sensitive caring person”[25].
[25] Report of single expert, p 3, par C.
The allegations said to have been made by the child in July 2009 came in the form of nightmares recounted when the child woke up, or related the following day. On 24 July 2009 the mother says she asked the child: “Why do you have such a terrible dream last night? What was the dream about?”[26] By asking the child about the dream in this way the mother was forcing the child to create explanations.
[26] Affidavit of mother filed 25/9/2009, par 60.
If I accept the evidence of the mother, the child had been difficult to put to bed the night before, clinging to her and crying, fearful that “the pink monster will come to me in bed.”[27] She had talking in her sleep saying “stop rubbing it, stop.”[28] She then began crying in her sleep and would not sleep, appeared to be very frightened and crying so much she was almost choking. She was then apparently awake when she reached out her arms to her mother seeming to be terrified and would not let go. This whole episode lasted over an hour.
[27] Affidavit of mother filed 25/9/2009, par 59.
[28] Affidavit of mother filed 25/9/2009, par 59.
It is difficult to understand why the matter had to be re-investigated the following evening. At paragraph 60 the mother says the child apparently described the dream in this way:
The pink monster again, the pink monster has yucky dirty black hands, the pink monster wakes me up when I’m sleeping. Then the pink monster smack me and licks me on the face, back and everywhere, and puts his black dirty fingers in my mouth. The pink monster shows his big noonoo and his hairy big bum.
The mother asks:
What is the pink monster?
and the child says:
It’s papa he takes my nappy off and licks my noo noo and my bum. He has black hands and he gives it to me his black hands. Daddy puts his black fingers in my mouth and they taste yucky. Daddy hurts my noo noo.
On 25 July 2009 the mother says that she again took the child to see Ms E on
25 July 2009. This is again inconsistent with the evidence of Ms E who says that the only times she saw the child to speak to were on two later occasions in September and October 2009. I accept the evidence of Ms E on this issue when she saw the child. Accordingly, I find that the mother did not take the child to Ms E in July 2009.
There is no doubt that the mother did recount these or similar matters to
Ms E who made a second notification in those terms to the Department of Community Services (DoCS) on 25 July 2009. There is a report by
Ms E to Dr J dated 25 July 2009. The report advises the doctor that Ms E has made a second notification to DoCS. She set out in bullet points what the child is reported to have said to her mother. Additionally she reported the mother having stated that:
Every time [the child] sees her father she will not eat and is constantly screaming grabbing for her mother.
Since the child had not seen her father at that time for almost three months, this could only be a reference to some past event. Ms E reports that the mother said:
When it is necessary to put cream on her daughter’s vagina the child assumes the doggy style position like it was sex and asks her to put the cream on her this way.
Ms E did not challenge the sexual association the mother made with the child’s request and position.
The mother’s evidence is that she observed the child on all fours for nappy change in February 2009. This report tends to confirm that the mother did not have the child with her as she states she did. It is also apparent, and was from the oral evidence of Ms E, that the mother had not communicated to Ms E that all contact between the child and her father had ceased in early May 2009.
I find that the mother failed or chose not to give Ms E this information.
Report to Police
On 26 July 2009 the mother reports she made a statement to a police officer at X Police Station, which is the first documented allegation by the mother of frank misconduct by the father. It bears close consideration[29]:
[29] Affdiavit of mother filed 25/09/2009, par 66.
On 26 July 2009 at 12.56 pm I received a phone [X] Police and had a conversation with a police officer who identified himself as Constable [T] as follows:
Police:A Mr [B] came to the station about your child, do you know him.
Me:Yes, he is a family friend. This is about my daughter who is 3 years old and her father and I are separated. The father has access to the child and when she returns she says he has touched her on the vagina.
Police: Have you reported it to DoCS?
Me: Yes
Police: What is the reference number from DoCS?
Me: Reference (page 18) I spoke to case worker ….
There is an affidavit by Mr B a family friend of the mother’s family sworn on 7 November 2010. It is a brief affidavit setting out those matters involving statements and allegations of concern heard by Mr B made by the child. The only statement allegedly made prior to 26 July 2009 is this one[30]:
On or about 9 May 2009 around 8.30 pm I was at the home of [the mother]. [The mother] and [the child] had a conversation to the following effect:
[Mother]:Go and get your pajamas (sic) and get ready for bed.
[Child]: No I am frightened the pink monster will get me.
Later that night I heard [the child] say: ‘The boys at Daddy’s house were hurting me’.
[30] Affidavit of Mr B filed 10/11/2010, par 3.
Mr B was not cross-examined. However it seems entirely unlikely that he attended at the police station on 26 July to raise a concern about the child based on what he says he heard, or saw about the child prior to that date. It seems equally unlikely that he would have omitted any worrying observation given that the whole content of his affidavit related to allegations of misconduct or bizarre behaviour and statements by the child. The reference number given by the mother in this conversation with the police is the reference number Ms E refers to as having been given to her on the previous day, 25 July 2009.
Increasing number of complaints by child reported
From that date the child continued to make allegations on a daily basis.
On 29 July at 10.34 pm the mother reports that the child did not stop crying and did not want to go to bed and said words to the effect[31]:
[31] Affidavit of mother filed 25/9/2009, par 75.
[Child]: The pink monster smacks me on noonoo and touches my hair, mummy he hurts my noonoo.
Mother: Who is the pink monster?
[Child]: It is daddy he hurts me and smacks my noonoo.
Interestingly on 4 August 2009 at 9.50 pm the mother reports that she said to her daughter, then aged three[32]:
[32] Affidavit of mother filed 25/9/2009, par 76.
Mother: [V] it is time for you to go to bed.
[Child]:I don’t want to go to bed I’m scared there’s a pink monster in there.
Mother: There is no monster.
[Child]:Yes mummy he is in the bedroom. It is daddy he is the pink monster mummy.
Mother: There are no monsters it is only a bad dream.
On 21 August 2009 there was a new allegation where the mother reports that the child was sitting on the floor with her finger in the hole of her track suit pants. The mother took a photo of the hole in the track suit pants[33]. The mother asked the child[34]:
[33] Affidavit of mother filed 25/09/2009, Annexure ‘C’.
[34] Affidavit of mother filed 25/9/2009, par 81.
Mother: How did you get a hole in your track suit pants?
[Child]:Daddy puts his finger in my track suit pants and goes poing point poing.
She then paused and went on to say[35]:
Daddy puts on my face a mask and it’s blue in color (sic).
Mother: Really.
[Child]:Yeh. Daddy also puts on a mask, and it’s a pink one, pause then ‘Daddy says I’m a boy not a girl’ then pause and ‘Daddy’s naughty he calls me a boy, he calls me a boy, I take mask off me and off daddy.
[35] Affidavit of mother filed 25/9/2009, par 81.
Over the following days the childis said to have said:
Daddy tells me to spit in his bum, daddy makes me lick his bum and it tastes yucky, daddy takes me to the moon at [L’s] house, daddy makes me put all my hand in my mouth…daddy makes me put his hand in my mouth and daddy does pippi in his pants, daddy takes lots of tissues and throws them in the bin (par 84).
Daddy then takes me to the shops and daddy buys lots of things and daddy makes me put small balls in my bum (par 85).
By September 2009 the allegations included third parties[36]:
Daddy has a friend his name is [L]. He has a daughter she is 4 and her name is [I]…Daddy is the moon and the moon is in my bed, and the moon is also at [L’s] house…I am in bed, [L] and daddy are smoking in the room. The smoke smells. [L] sleeps in my bed, daddy and [L] hurt me in the bum and my noonoo. Daddy hurts [I’s] bum, daddy also puts spiders in the bed.
[36] Affidavit of mother filed 25/9/2009, par 86.
By Friday 21 August 2009, if not before, the mother was aware that the father had made an application to the Federal Magistrates Court for orders that he be able to spend time with the child.
The matter came before the Court on 25 August 2009. There is some reason to doubt what the mother says about her knowledge of the application. She filed an affidavit on 25 August 2009, which contained six paragraphs. The mother said that on 19 August 2009 she received a telephone call from a person who identified themself as from Spencer Whitby & Co Solicitors. She did not have time to speak to this person. Then on Friday 21 August 2009 she received in the mail box a sealed copy of the initiating application in the proceedings and a letter dated 19 August 2009 from Spencer Whitby. She said this:
After receiving the Initiating Application in these proceedings I now know that Spencer Whitby & Co are solicitors who represent the applicant father in these proceedings.
I do not accept this evidence. The mother had known since May 2009 that Spencer Whitby & Co were the solicitors acting for the father. She had received their letter of 7 May 2009 and subsequently received the Decree Nisi when divorce was granted. I consider that the affidavit filed 25 August 2009 was done to create the impression that the mother had no idea that there would be any application by the father to spend time with the child. In fact the parties had attended mediation on 3 July 2009 which had been unproductive and it was undoubtedly the case that the mother knew an application would be forthcoming.
Sequence of events – 2 May 2009 to November 2010
The sequence of events are as follows:
2 May 2009
Last period of unsupervised time between the child and her father.
7 May 2009
Letter sent by father’s solicitor.
3 July 2009
The parties were involved in an unproductive mediation.
7 July 2009
The child had her first session with Dr O, Clinical Psychologist.
11 July 2009
Mother consulted Ms E, her personal psychologist and reported allegations.
13 July 2009
Mother took the child to Dr N where the child reported allegations.
17 July 2009
The child attended the second session with Dr O. His advice to the mother was to keep calm and not to prompt questions. It is apparent that the mother did not adopt that advice and questioned the child regularly on an increasingly frequent basis.
…
Father and aunt spend two hours at the child’s birthday party in the park.
25 July 2009
Mother made allegations to Ms E which were the subject of the second notification to DoCS.
26 July 2009
Mother had the phone call set out above from the police.
27 July 2009
Mother rang the Department of Community Services in … to make a complaint.
1 August 2009
Ms E reported again to Dr J that the mother was suffering severe depression and severe anxiety[37].
5 August 2009
The child had her third session with Dr O. Dr O again recommended to the mother that she not prompt the child with questions.
18 August 2009
The child had her fourth session with Dr O. Dr O recommended the mother try to maintain routines and adopt an attitude of calmness. I am satisfied that the mother did not accept this advice or act on it.
21 August 2009
Mother was served with the father’s application which came before the Court on 25 August 2009 and was adjourned to 14 October 2009.
27 August 2009
The child had her fifth session with Dr O. On that same day the child was referred to CC Care The reasons for referral to CC Care are included in the referral form dated 27 August 2009[38]. The reason set out is for suspected sexual abuse of daughter:
[The mother] reports sexual interference to daughter after visits to ex partner father of [the child]. [The child] has nightmares and tells her mother that her father hurt her vagina and she is having throat infections. [The mother] has taken [the child] to hospital for throat infections. Report made both to DoCS and police by [the mother] and … (mother’s friend). Father is going to Court for custody access of daughter and [the mother] has been denied legal aid. Daughter also reports another child present on visits to father.[39]
There is a note apparently made on 31 August which says:
Visits of daughter to father ceased since … July.
This note is inaccurate, although it may well have been faithfully recorded.
29 August 2009
Third notification to DoCS by Ms E with her usual follow-up report to Dr J about mother’s poor mental health.
31 August 2009
Mother took the child to Dr J and told him she thought the child might be drugged by the father. Dr W in his report notes that a urine screen was conducted with no result.
9 September 2009
JIRT interview scheduled. Mother and child attended but the child became too distressed to be interviewed. The mother’s reaction was one of anger and disappointment. “There is no justice, how can I save my child”. On that same day the solicitor for the mother, Mr Keady wrote to the child’s psychologist, Dr O requesting “a report and recommendation that I can present to the Court and otherwise use and in preparing the defences by the mother against the application by the father for granting the father access to the child.[40]”
These were said to have commenced on 3 January 2008 and to have prompted the mother to consult with Ms E and with Dr O himself. The letter went on to say that the mother had on 2 May 2009, informed the father that he could not have further access to the child. This information was both inaccurate and misleading as follows:
· The statement: “From about November 2008 the father regularly came and took the child for access on Saturdays, Wednesdays and Fridays during the day and returned the child to the mother in the night” was not correct. There had been a regular arrangement from January 2008.
· The mother had been attending on Ms E as her own personal therapist since August 2007, prior to the separation of the parties. Ms E had been treating her for severe anxiety and severe depression.
· The referral to Dr O had been made by the child’s doctor.
· The mother did not, on her own evidence, advise the father that he could not have further access on or about 2 May 2009.
· The application made by the father in the Federal Magistrates Court had been filed on 21 July 2009 and not 25 August 2009.
10 September 2009
Correspondence from Dr J to the mother’s solicitor starts with this note in bold:[41]
The mother of the above child presented on several occasions expressing an anxious feeling following every visit that [the child] to her father.
10 September 2009
The child was taken to a Hospital by her mother and a history was given of one day of vomiting and diarrhoea. She also attended her final session with Dr O on that day.
14 September 2009
Response from Dr O to letter from Mother’s solicitors. Not relied on by the mother but was tendered into evidence by the father. With respect to Dr O the report is a model of restraint. Amongst other things the report says this[42]:
She [the child] showed no signs of disturbance or psychopathology. However the mother reported dramatic nightmares showed me some of them on video and said these have been worsening over time. Sessions focused on providing reassurance that these would settle down, providing normal routine and soothing strategies for her daughter and advice on keeping daytime routines normal. Further during these sessions Mrs [Gennaro] (Ms [Giavanna]) began to report levels of concerning information about her daughter’s disclosures of alleged events that the mother believed amounted to sexual abuse. At first they were very vague but at time went by them became more elaborate, although not to the level reported in your letter to me. I explained that making an assessment of what has happened in this matter is a case for the Department for Community Services and JIRT, and I suggested a referral to these agencies…I understand the father has served papers requesting overnight and daytime access. I have never met the father nor interviewed him about the allegations. This is a matter for JIRT. Thus I am not in the position to comment on whether access should be approved or denied.
…
I can say developmentally behaviourally and emotionally she presented to me as a normal well-adjusted child, I have not witnessed signs of distress and disturbance when I have spoken to her about her father.
Given that Dr O saw the child between 7 July and 10 September 2009 on six separate occasions I find the evidence in this report, prompted only by the mother’s solicitor’s letter, compellingly helpful.
21 October 2009
There was a second home visit by DoCS[43]. The child was observed to be non-compliant with her mother.
7 November 2009
Mother applied for a pre-school place for the child on Mondays and Thursdays[44].
16 November 2009
There was a third home visit by DoCS to the mother who indicated she was trying to implement a bedtime routine[45]. It is apparent that the mother was continuing to struggle managing the child on her own.
16 February-
13 April 2010Interim Orders were made for supervised time. The child saw her father on six occasions supervised at Contact Centre B. Visits then ceased.
17 June 2010
Report of Dr W released.
15 November 2010
On the first day of a final hearing, orders were made by consent for a progression of time over six months.
Time did not progress but has remained supervised by a private agency to date.
[37] Exhibit ‘ICL 3’
[38] Exhibit ‘F 14’
[39] Exhibit ‘F 14’.
[40] Exhibit ‘F13’ – Letter LesKeady Legal to Dr O dated 09/09/2009.
[41] Exhibit ‘F 2’.
[42] Exhibit ‘F 13’.
[43] Exhibit ‘F 14’.
[44] Exhibit ‘ICL 7’ – D Preschool, Child Enrolment Form dated 07/11/2009. .
[45] Exhibit ‘F 14’.
Ms E, Psychologist
Ms E was between 13 August 2007 and October 2010, the mother’s personal therapist.
On 19 September 2009 the child was taken by her mother to see
Ms E. In her oral evidence Ms E was adamant that she only saw the child in terms of having a conversation with her on two occasions, on 19 September 2009 and 3 October 2009. She had previously caught sight of E as a toddler when the mother had been unable to arrange babysitting.
She reported to Dr J who had referred the mother to her in the first place. Ms E consistently assessed the mother to be in the severe range for depression and anxiety.
On 17 January 2009 Ms E records[46] that the mother had been referred to Dr H to investigate the possibility of thyroid problems and had been referred to a psychiatrist, Dr S. Ms E’s notes suggest that the mother was really struggling with being a sole parent.
[46] Exhibit ‘ICL 9’.
On 30 May 2009 she notes that the mother “can’t breathe, feels like going to have a heart attack and that her head is going to explode.”[47] However Ms E made no connection between the allegations which she notified, the fact that the child was brought in to see her on 22 September 2009 and again on 3 October 2009 and the litigation in which the mother was by then embroiled.
[47] Exhibit ‘ICL 9’.
Ms E chose to step outside her role as the mother’s therapist and interview the child on both those occasions. She did so spontaneously using her mobile phone. When she attempted to transfer to a disk the two interviews, both of which were approximately 20 minutes, the disk failed. When that disk was played in Court there was no more than three minutes of content. Ms E apparently did not see it as her role in any way as the mother’s therapist to challenge the increasingly startling and detailed allegations made by the child. Indeed, it is quite unclear as to what Ms E had been told about contact between the child and her father. On the balance I consider she did not know that contact had stopped in May 2009 (other than the birthday visit). She certainly conceded in the witness-box that she had believed that the child was having overnight time with her father. That would account for the leading questions included in one of her interviews as follows:[48]
[48] Exhibit ‘ICL 9’, Psychological Report dated 8/10/2009 to Dr J, p 6.
Psychologist: Do you like sleeping at your dad’s place?
[Child]: Shakes her head.
Psychologist: Why don’t you like sleeping at your dad’s?
[Child]: Cause he does those things.
Psychologist: When does he do those things?
[Child]: On my bum.
Psychologist: Do you like what he does?
[Child]: No.
Psychologist: Do the other girls sleep over?
[Child]: Yes.
Psychologist: Where do they sleep?
[Child]: I like my hair down.
Ms E conceded that given the child had never slept over at her father’s home her assumptions had led to a misleading result and again in the first interview:[49]
[49] Affidavit of Ms E 02/10/2009.
Psychologist: Is daddy a good daddy to you?
[Child]: No.
Psychologist: What do you mean, what happens with daddy?
[Child]: He hurts me.
Psychologist: How does he hurt you?
[Child]: He hurts me in my noonoo.
Psychologist: Where’s your noonoo?
[The child] then grabbed her crutch and started rubbing it a little.
Psychologist: and when does he do that? Does he do it in the day time or the night time?
[Child]:He does it in the night time. Mummy closes the door and then the monster comes in.
Psychologist: What’s the monster?
[Child]: Daddy.
The interviews were based on false assumptions and contain many leading questions. I find that both interviews took place as the result of pressure from the mother who was becoming desperate to have expert evidence establishing that her child had been sexually abused. The report containing that first interview was annexed to the first affidavit filed by the mother on 25 September 2009. That these interviews took place and that the first interview was used in the way that it was is of great concern for the child. The mother simply did not accept on 2 September 2009 that there could not be another JIRT interview. She caused her solicitor to write, in the way that has been described, to Dr O, the psychologist who had been referred for the child to assist her with nightmares. Clearly she then turned to Ms E.
The mother made a video clip of the child screaming and not wanting to go to her father. The mother had taken comfort from the fact that Ms E made a notification to DoCS on each occasion that she reported allegations. Had Ms E stayed in her role as the mother’s therapist, she might have been able to challenge the mother to the likelihood of events reported having taken place. Ms E made a seventh and final notification on 8 October 2009. She did not see the child again but continued to see the mother as her therapist for the next 12 months.
There were three affidavits filed by Ms E, on 2 October 2009, 19 October 2009 and 10 November 2010. The third affidavit was filed after the conclusion of the professional relationship between Ms E and the mother and at paragraph 15 she says:
My interviews with [the child], were to ascertain whether there was abuse of the child and whether I had to make a recommendation that a further investigation needed to occur. The child had disclosed information in my presence that alerted me that she may have been sexually abused. I was reluctant to ask questions that may be viewed as leading but needed to do this to assess whether in the interests of the child I was required as a psychologist to make a mandatory report.
I do not understand this evidence. By the time Ms E interviewed the child for the first time on 19 September 2009, she had already made four notifications to DoCS as to use her own words “a mandatory reporter”. On balance I consider it likely that Ms E simply succumbed to pressure, stepped outside her role and took on forensic work which should properly only be undertaken by the JIRT team. Unfortunately I consider that the seven notifications and two interviews provided the mother with either comforting reassurance that she was right to believe that E had been sexually abused; or simply the evidence she thought she needed in court.
Supervised visits at Contact Centre B
The child saw her father at the Contact Centre five times between 16 February 2010 and 13 April 2010[50]. Eight visits had been pre-arranged. By the date of the first visit the child had not seen her father (other than for two hours at her party in July 2009) for between nine and 10 months.
[50] Exhibit ‘ICL 1’ - … Contact Centre.
The first visit (16 February 2010)
The child was reported to be “very quiet” for the first 10 minutes, after which she settled and “appeared to be enjoying the time”[51]. The child ate some of the food her mother had packed and a piece of food brought by the father. She accepted two gifts from her father. They played together outside on the equipment without incident.
[51] Exhibit ‘ICL 1’ - Contact Note 16.2.2010.
The child is reported to have become quiet and apparently withdrawn when saying goodbye to her father. She said to him, “I like it when you kiss me.” The note by the supervisor says, “Session appeared to go well”[52].
[52] Exhibit ‘ICL 1’ - Contact Note 16.2.2010.
The mother was cross-examined about this first visit. She said she accepted what might be written there but “the behaviours when she came home were completely different. She threw things at me and hit me.” I consider that if the child was behaving this way it was at least possible that she was angry with her mother. The mother did not accept that the child might have genuinely enjoyed the visit.
It is clear that the mother herself was anxious before and after the visit. This is evident in the letter the mother wrote 10 days afterwards to the Co-ordinator of the Centre[53]. It is also clear that the child was questioned and not appropriately reassured.
[53] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010.
The letter of 26 February 2010
The mother says she and her mother collected the child from the Centre. In the car going home the child had said she was scared of seeing her father, scared he was going to hurt her. This quickly escalated into the following alleged statements by the child[54]:
· Daddy’s hurt my bum and my noo noo.
· Daddy hits me on the head hard and puts me in a big rubbish bin with a yellow lid and hits the bin with a shovel while I’m in the bin and its dark and I’m scared. He hits the bin really hard and growls like a tiger and keeps hitting the bin hard.
· Daddy puts me on the tree branch and then he pushes me off the tree making fall on the ground and he hurts my back.
[54] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010 pages 1-2.
The mother reports that she reassured her daughter at the beginning and end of these complains by saying, “It’s okay mummy is with you. It’s ok.”[55] There is no allegation by the mother of actual physical injury resulting from these alleged events. No treatment was sought. The mother said she absolutely accepted that what her daughter said had happened.
[55] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010 page 2.
The mother then went on in the letter to relate conduct by the child in the (10) days following the visit[56]:
[56] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010, pages 2-3.
-bad dreams;
-screaming while dreaming;
-wetting the bed at night;
-incontinent during the day due to fear of using the toilet because her father would be there;
-clinging to mother;
-coming into mother’s bed at night;
-seeing the shadow of the “pink monster daddy”;
-holding her mother’s hand while eating;
-putting her underwear up high in between her vagina and touching her vagina and saying look at my noo-noo;
Mother: That’s naughty, who teaches you that?
[Child]:Daddy does teach me. Daddy puts dummy in my noo-noo and my bum and then daddy puts dummy in his bum and puts it in his mouth. ‘That’s yucky’.
The mother concludes her letter with this statement[57]:
It’s an awkward and stressful situation that my daughter has been put in while seeing her father.
[57] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010 page 3.
I do not accept that the child had been abused, molested and terrorised during this visit to the Contact Centre. It is inherently incredible. I do accept the evidence of the supervisor of an enjoyable affectionate visit.
The mother had not read the notes from the Contact Centre produced on subpoena. I encouraged her to do so during the course of the hearing. If she did there was no indication of her resiling from her position that the child had been neglected (by the Centre) and horribly abused by the father.
Dr W considered the significance of this first visit and the mother’s follow up letter to it[58]. The doctor concluded that:
The allegations set out in the letter were fanciful, probably produced by leading questioning. Ultimately that is a matter for the Court. I do find that the allegations by the child, if made in the stated terms, were baseless.
[58] Report Dr W, page 21, par 2.
The report of Dr W was released in June 2010. The mother had read it. There was nothing to suggest in her evidence before me that the mother doubted herself after reading it. Nothing at all to suggest that she stood back and considered just how unlikely it was that either:
(a)the child had been abused by the father at the Centre despite supervision; and/or
(b)the child a had remembered events from before May 2009 which did not come to the mother’s attention at the time despite their violence.
The failure of the mother to entertain doubt is of great concern.
The second visit (2 March 2010)
The mother left without saying goodbye to the child. The child settled after two to three minutes “and started to talk and play.”[59] She is reported to have enjoyed the time with her father. They spoke easily and again played outside. The child ate food brought by her father. She played with another child for about 10 minutes. At the end of this visit there is a note, “A kiss and a hug when leaving”[60].
[59] Exhibit ‘ICL 1’ - Contact Note 2.3.2010.
[60] Exhibit ‘ICL 1’ - Contact Note 2.3.2010.
The observation by a supervisor is inconsistent with the assertion in the mother’s letter four days prior, “This poor child is terrified of him (the father).”[61] I accept that the child was pleased to see her father and enjoyed her time with him.
[61] Exhibit ‘ICL 1’ – Letter from mother 26/02/2010.
The third visit (16 March 2010)
The mother advised a centre worker that “child was very distressed and did not want to attend the session”[62]. In stark contrast the child is observed to have appeared happy to separate from her mother to go to her father. She gave him a hug and a kiss. She was “talkative and friendly with father talking constantly during the session.”[63] They played and chatted with the child “happy to sit near her father.”[64] Again she ate with him.
The following observation is significant[65]:
When worker told child it was time to pack up because ‘Mummy is here’ child became sullen and withdrawn and would not say goodbye to father.
[62] Exhibit ‘ICL 1’ - Contact Note 16.3.2010.
[63] Exhibit ‘ICL 1’ - Contact Note 16.3.2010.
[64] Exhibit ‘ICL 1’ - Contact Note 16.3.2010.
[65] Exhibit ‘ICL 1’ - Contact Note 16.3.2010, page 2.
In my view there had been rapid progress in the restoration of the relationship between the child and her father. On this third visit she had been instantly pleased to see him and sad to say goodbye. Unfortunately when the child was reunited with her the mother’s first words to her were, “What’s wrong?”[66] The mother was observed to repeat this question to the child more than once and to remark to the worker, “Can’t you see how stressed she is?”[67] The worker did not observe distress.
[66] Exhibit ‘ICL 1’ - Contact Note 16.3.2010, page 2.
[67] Exhibit ‘ICL 1’ - Contact Note 16.3.2010, page 2.
Either the mother was being manipulative or she jumped to an unjustified conclusion consistent with her opening statement before the visit. I am satisfied that the only distress the child might have been feeling was sadness at leaving her father.
On 29 March 2010 Dr W interviewed all parties for the report.
The fourth visit (30 March 2010)
This visit was a day after the interviews. The child was happy to separate from her mother and to see her father and also her paternal aunt. She settled quickly. When she saw another child changing between parents, she became withdrawn. The supervisor distracted her with a DVD and “the child soon began talking again”[68].
[68] Exhibit ‘ICL 1’ - Contact Note 30.3.2010, page 1.
At the end of the session the child asked to speak to the supervisor “in the other room.”[69] The child is reported to have said to the supervisor, “Daddy hurt me. In my bum. In my bed.”[70] The child then joined her mother who again asked, “What’s wrong?’[71] The child replied, “I told them my daddy hurt me.”[72] The mother was advised that the child’s statement would be followed up with the authorities. It was the day after this visit the mother again wrote to the Co-ordinator of the Centre[73]. The letter was to protest the presence of the paternal aunt. Contrary to the mother’s assertion in that letter, the Court orders of 16 February 2010 did not state that no other person was entitled to the contact.
[69] Exhibit ‘ICL 1’ - Contact Note 30.3.2010, page 1.
[70] Exhibit ‘ICL 1’ - Contact Note 30.3.2010, page 1.
[71] Exhibit ‘ICL 1’ - Contact Note 30.3.2010, page 2.
[72] Exhibit ‘ICL 1’ - Contact Note 30.3.2010, page 2.
[73] Exhibit ‘F10’ – Letter 31/03/2010.
However in my view the letter is significant for another reason. The mother has made no complaint about the behaviour of the paternal aunt. She had been well-known to the child before contact was stopped in May 2009. She attended the birthday party in the park in July 2009. Given the mother’s stated fears about the father, her presence logically would have been reassuring and welcome to the mother. Her protest suggests that the mother was simply opposed to contact at the Centre and was determined to find fault with the arrangements until it could be stopped. I consider that the mother herself was unable to cope with the contact visits.
The fifth visit (either 13 April 2010 or 27 April 2010)
This visit did not proceed. This time the child arrived clinging to her mother. The mother made firm statements[74]:
My child is very distressed. I will not distress her further. I cannot force her. I do not want to upset her more.
The child was present. The child was observed to be unhappy, teary eyes and no smile although not crying.
[74] Exhibit ‘ICL 1’ - Contact Note 13.4.2010, page 1.
The mother rejected the invitation to bring the child inside to see if she would settle with toys and the other children. A worker took the child reassuring the mother the centre would ring if the child did not settle. The mother said[75]:
I am distressing my child. I do not want to do this. My child has asthma. I’ve given her medication.
The child cried loudly, had her fingers in her mouth and was trying to choke.
[75] Exhibit ‘ICL 1’ - Contact Note 13.4.2010. .
The paternal aunt was present with the father. The child was not able to be distracted. The supervisor became concerned about the child’s high body temperature. She could feel the heat. The father and aunt asked that the child be returned to her mother as she was so distressed and appeared unwell. That was done. The child blew a kiss to her father and aunt.
There were no more visits at the Contact Centre.
Dr W had expressed a clear view that the mother’s inability to manage her emotions, together with carelessness in what she did and said, could sabotage visits between the child and her father rather than support them[76]. The evidence supports a finding that what was predicted happened at the Contact Centre. I find that the child was put under pressure by her mother to make further allegations about the father and to reject him against her own feelings.
[76] Report Dr W, page 23, par 22.
In November 2010 all the parties consented to interim orders with an escalation to unsupervised time by May 2011. The mother was openly unhappy in Court about the orders being made, although consenting.
Interim settlement at final hearing
The matter was set down for a five-day hearing commencing 15 November 2010. On that day interim orders were made by consent of all parties.
Order 5 provided for six sessions of four hours time between the child and her father, supervised by a contact service organisation. Contact Centre A was ultimately used. The dates nominated in the Orders were:
·5 December 2010
·19 December 2010;
·9 January 2011;
·23 January 2011;
·13 February 2011; and
·27 February 2011.
Thereafter unsupervised contact was to begin commencing 6 March 2011 and each successive second Sunday all day.
There were exchanges in Court between the presiding Judge and the mother. The mother clearly stated that she believed the child had been abused by her father and that she was unhappy about unsupervised contact[77]:
[77] Transcript dated 15/11/2011 but in fact recorded 15/11/2010, page 17: 25-45 and page 18: 35-45.
[THE MOTHER: Yes.
HIS HONOUR: You enter these orders of your own free will?
[THE MOTHER]: Yes I do, your Honour.
HIS HONOUR: And to the extent that the orders impose obligations commitments on you, you give me an assurance that you will honour those obligations and commitments?
[THE MOTHER]: Yes I do, you Honour.
HIS HONOUR: All right. Well, I want to ask you this. It’s implicit, in the way the orders are framed, that there’s an underlying acceptance on your part in moving to unsupervised time, that the father has not sexually abused [the child]. Do you accept that?
[THE MOTHER]: Do I accept that he hasn’t?
HIS HONOUR: Yes.
[THE MOTHER]: I just-believe he has because of what of my daughter said to me.
…
HIS HONOUR: You may not accept the finding but at least one of the parties has got a finding one way or the other.
[THE MOTHER]: I mean, I’ve been fighting this to help my daughter. I believe my daughter, what she said. I still believe. I’m not happy with this unsupervised, no I’m not. But what can I do, your Honour?
HIS HONOUR: Have you considered the possibility that, for whatever reason, however it came about, your daughter – that nothing has happened? Can you conceive of that as a possibility?
[THE MOTHER]: Something has happened for my daughter to say that to me.
In her oral evidence in these proceedings before me the mother confirmed that she had not wanted to consent to the orders. Her legal advice had made her fearful of losing her daughter.
Having seen the mother give evidence over the course of three days, I am confident that she dreaded the prospect of unsupervised contact. I am further satisfied that the mother became determined to do everything in her power to prevent unsupervised time between the child and her father ever taking place.
Ms Y Clinical Psychologist
Ms Y was assigned the role of family therapist by the orders of November 2010. Her task apparently was to reconcile the parents to the child spending regular unsupervised overnight time with her father.
Ms Y did not provide an affidavit. I do not know if she was asked to, nor do I know whether a subpoena issued for her records. I was told when the hearing began by counsel for the mother, that Ms Y was unavailable to give evidence. A short service subpoena was issued. The Court was then advised that Ms Y was unable to give evidence through ill-health arising from a recent accident.
The Independent Children’s Lawyer and the father asked that the matter proceed without the evidence of Ms Y. The mother asked that the proceedings be adjourned until Ms Y was well enough to attend. This application was refused in circumstances where Ms Y was not a witness for any party. Her evidence may have been helpful but the urgency of the matter outweighed that possibility. Such evidence as there was, was annexed to the affidavit of the mother.
The parties apparently saw Ms Y for the first time on 24 November 2010 in accordance with the orders[78]. There were two more visits. One of them was on 31 January 2011. There is no evidence before me as to the date of the other visit. There is however a note in the records of Contact Centre A[79] at 5.20 pm on Thursday 2 December 2010 that “the visit will not go ahead as per decision of [Ms Y], Clinical Psychologist”. I am unable to find any basis for this reported statement by the mother. It led to a flurry of email correspondence between Contact Centre A and the parties’ legal representatives.
[78] Order 2 of Orders 15/11/2010.
[79] Exhibit ‘ICL 2’, Email dated 2/12/2010 from … at Contact Centre A 5.41 pm to father’s solicitor and Independent Children’s Lawyer.
The first visit did go ahead on 5 December 2010 as ordered. However I am left with the information that the mother apparently believed after either one or two visits with Ms Y that the supervised contact should not go ahead. This is unlikely to be the case. However I infer that the mother had expressed her fears and views to Ms Y and was hopeful on 2 December 2010 that supervised contact might not go ahead.
At the meeting on 31 January 2011 the child apparently made a statement to Ms Y. The child had been brought by a supervisor, was seen with her father but did not engage with him. Ms Y asked the father to leave the room. She then spoke to the child who apparently said, her father “put his fingers up her vagina and her bum. This hurt her and he should not have done this to her”.
Ms Y asked her to identify her feelings on a “How do you feel today?” chart. The child is said to have pointed to “aggressive” and “surly”. I take the latter to mean that the child pointed to symbols which are interpreted by those words. This is only my guess.
It is impossible to know what might have happened if Ms Y had had the opportunity to read the report of the supervisor on that occasion[80]. The child was collected at 8.00 am by the supervisor from the mother’s home. In the car she was asked if she wanted to come with the supervisor to see her father. She said she did. She chatted, sang songs and appeared calm and happy. The supervisor had trouble finding parking for the appointment. They were late, arriving some time after finding a parking space at 9.20 am.
[80] Exhibit ‘ICL 2’, Report of supervisor, 31/01/2011.
The child seemed shy and stood close to the supervisor. Her father was present with his girlfriend Ms M and Ms Y. He asked her how she was. The child said “good” and looked around the room. I consider it likely that the child had thought she was going for a visit to her father at home in the ordinary way and was at least surprised.
Ms Y took father and daughter into her room. The father emerged at 9.45 am. The child then remained with Ms Glaser for 15 minutes alone. During this 15 minute period the child must have made the assertions of sexual abuse referred to by Ms Y in her letter to the Court. She was assessed to be feeling aggressive and surly.
Ms Y then returned the child to the waiting room, thanked everyone and said they could leave. The father, Ms M, the child and the supervisor left together. I quote the balance of the report by the Supervisor[81]:
[The father] asked if [the child] wanted to go in the lift together and we could say goodbye on the street. [The child] said she would like that. [The child] stood next to [the father] and they chatted. As we walked to the street he held her hand, bent down and kissed her, and told her he would see her on the weekend.
[Ms M] kissed [the child] and said goodbye and they embraced. [The father] and [Ms M] thanked me and we said goodbye and walked away. [The child] turned to wave to [the father] and she blew him a kiss. [The child] was quiet as we walked to the car.
On the way home [the child] chatted about her mum and her cousins. She sang songs and said she was hungry. I allowed her to eat her snacks and drink. She seemed relaxed and happy as she ate and looked out the window.
We arrived back her mother, [Ms Giavanna’s] house at 11:00 am where we were met by [the mother] at the back gate. We exchanged greetings and she asked how it went. I told her it went well and [the child] had eaten snacks in the car. [The mother] thanked me, we said goodbye, and I left.
[81] Exhibit ‘ICL 2’, Report of supervisor, 31/01/2011, page 2.
Is there an unacceptable risk of sexual abuse?
In this matter I am satisfied that there is no unacceptable risk of the child being sexually abused or otherwise being mistreated by her father. There are three reasons for this finding.
1. Inconsistency of allegations
Between her birthday in July 2006 and the separation of the parties in November 2007 to January 2008 the only complaint that the mother had about the father was the inadequacy of his involvement with her and the child.
Between separation in November 2007 - January 2008 and 2 May 2009 there was regular weekly unsupervised time between the child and her father by arrangement between the parties.
There is no evidence during that time of complaint by the mother or the child about the father to any relevant third parties.
In May 2009 the mother stopped making the child available without explanation.
In September 2009 the mother filed an affidavit responsive to the father’s Application to spend time with the child. This affidavit contains complaints retrospective to the date of separation.
Subsequently supervised time broke down twice in the context of allegations of serious sexual assaults on the child by the father despite supervision.
2. Father’s relationship with the child
The child’s relationship with her father on all of the evidence is a close and affectionate one, although not yet fully developed.
Material from Contact Centre B and from Contact Centre A reveals how quickly the relationship was restored after long periods of time apart and how genuinely affectionate and joyful the child was in her father’s company.
3. Medical evidence
There was no evidence of physical injury to the child despite allegations by the mother which if true would have meant traumatic injury for the child including vaginal and anal penetration digitally and the insertion of a knife into the child’s bottom.
There is evidence that the mother has been suffering poor mental health since at least 2007 and continuing.
Unacceptable risk of emotional abuse
I am satisfied that there is an unacceptable risk of emotional abuse of the child if she continues to live with her mother and spends time with her father whether it is supported or not.
The emotional abuse that I refer to is:
1.Constant questioning of the child by the mother about the father’s conduct;
2.Pressure on the child to make complaints to third parties about the father which do not arise from the child’s own experience;
3.Complaints by the mother to third parties of abuse of the child; and
4.The presentation of the child for medical examination and forensic interview.
The risk for the child is that she will have a discordance between her own emotional response to her father and the view of him which is not only represented to her by her mother but which she has been compelled to repeat.
Examples of this risk are the incidents in Ms Y’s office[106] and the report by the child at Contact Centre B[107].
Additional Considerations
[106] Paragraph 147-149.
[107] Paragraph 123.
Section 60CC(3)(a) - Views of the child
V is a five-year old child. She has always lived with her mother. She is assessed to have average emotional maturity for her age, but is too young to express a view about where she should live. However, I do take into account the child’s reaction at the end of the supervised visit on 20 March 2011. This was the time when the child anticipated that she would take possession of the bedroom that had been set up for her in her father’s home and would stay overnight for the first time. She was genuinely distressed. The supervisor’s description of her disappointment and sadness and quietness on the trip home was moving. In that way I consider that the child was revealing a view that she enjoyed time with her father and wanted more of it.
Section 60CC(3)(b) - Nature of relationships
The child’s most important relationships are with her mother and father. She has developed a close and affectionate friendship with her father’s partner Ms M, and with her paternal grandfather in whose home the father lives.
She likely also has a close and affectionate relationship with her maternal grandparents, both of whom provided affidavits in these proceedings. The affidavit of the paternal grandfather was annexed to an affidavit of an Italian interpreter. Italian is the first language which is spoken in the home of the grandparents. The conversations between each grandparent and the child are in English. A later affidavit of the maternal grandfather sworn 20 September 2011 was in English without reference to an interpreter. I am unable to be confident about this evidence. It seems likely that the child did make complaints about her father. However neither of the grandparents took any step apparently in relation to what they were told. Both of them refer to an incident around March 2010 where they report the child saying in their home, that she did not want a doll that her father had given her because:[108]
I don’t want anything from Daddy. Daddy hurts me. He wee-wees on my face. It gets in my eyes and mouth. Poppy catches Daddy doing this says to daddy, ‘You bastard what are you doing?’ and Daddy says to Poppy ‘shut up’.
At this time the child would have been three years and nine months old.
[108] Affidavit of grandmother sworn 09/11/2010, par 16.
Another allegation equally bizarre and unlikely is said to have been made in April 2010, when the grandparents heard the child say[109]:
Daddy hurts me and I don’t want to see him. He hurts my bum and noo noo. He hurts my noo noo with a plastic knife and my bum with a fork and squashes my face with his hands.
[109] Affidavit of grandmother sworn 09/11/2010, par 18.
The broad re-statement of both grandparents of these and many other allegations suggests that they did not seriously consider that their granddaughter was being assaulted.
Likewise in supporting affidavits by Mr B, Ms PM and Ms SM, none were cross-examined. All repeated a variety of allegations made by the child, but there were no conversations of concern between the deponents and the mother or any evidence as to any independent step taken by any concerned witness. On balance it is likely that the child did make quite startling allegations about her father to a variety of third parties. I consider it is a reflection of how often matters were considered in the child’s home. At least one witness refers to having listened to the child and distracted her to another topic which was appropriately child focused.
Section 60CC(3)© and s 60CC(4)(b) - The willingness and ability of the child’s parents to encourage a close and continuing relationship
In this matter there is no evidence of the father criticising the mother or the maternal family to the child or in her presence. The mother was enormously critical of the father, stating however that she wanted her daughter to continue to see her father as long as it was supervised. Indeed when she was asked about parental responsibility, she replied quite steadily, “Both (to have parental responsibility) is okay of course.” The mother was unable to provide a response to why she would want her daughter to have a relationship with a man who had cruelly sexually assaulted her. My impression was that the mother’s emotional response to the allegations was inconsistent. At no time did she show signs of anger, revulsion or a desire to keep the child away from her father at all costs.
A video was shown in Court taken by the father on his mobile telephone on 17 May 2009. This was soon after the mother had ceased making the child available for time with her father. The mother opened the door and stood with the child speaking to the father in the forecourt of the apartments where she lived. On more than one occasion the mother said this:
You can see her. I’m not stopping you seeing her, but my solicitor will set dates and time.
I had the impression that the mother believed what she was saying, but she did not in her oral evidence see an inconsistency between what she had been saying in May 2009 and what had actually happened since, that is, that there had been no unsupervised time and no time without a court order requiring it. The mother has not consulted the father about enrolment of the child at pre-school or school, did not include the father’s particulars in the pre-school enrolment and under the heading, “Any fears of the child” agreed that she put “the father.” Her actions do not match her words and her allegations do not match her responses.
Section 60CC(3)(d) - The likely effect of a change in the child’s circumstances
There will be a great impact on the child of the proposed change of residence. The family consultant considers that the child “would be likely to miss her mother a great deal[110]”. There will be at least initially distress for the child and confusion as to why she is no longer spending time with her mother on a daily basis. However there may well be quickly a positive effect for the child of living with her father and spending a great deal of time with him and his partner. It will be essential for the father to devote himself to the child’s care and to be available to her when she first comes into his care and this will be his duty and not that of Ms M, although no doubt she will be of great assistance to him.
[110] Family Report par 37.
Section 60CC(3)(e) - The practical difficulty and expense of a child spending time
The parties do not live far apart, 10 or 15 minutes by car. However there are practical difficulties. There is a very real risk that the mother would continue to undermine the child by questioning her and upsetting her are the risks the mother perceives in the father’s household. The relationship will need to be supervised for the child’s protection from this emotional abuse.
In terms of expense, the parents may not be able to afford to continue using the Contact Centre A private supervision service. Accordingly the Contact Centre B, which is immediately available, is the practical solution.
Sections 60CC(3)(f), (4), (4A) - The capacity of each of the child’s parents and any other person to provide for the needs of the child
The mother is somewhat more emotionally available to the child and the father less experienced as a parent. However the father is assessed to have been sensitive and careful when restoring his relationship with the child and in managing the artificiality of supervision over extended periods.
The father has given some thought to the child’s needs, however in my view he underestimates the behavioural difficulties he may have to deal with in the early weeks and months of the child’s residence with him. It is for that reason that an order has been made for the father to connect with a psychologist recommended by Doctor W. This is for the benefit of the father, his partner and the child so that he is able to access somebody who is able to learn about the background and history of the matter as and when he needs assistance. In no sense is the chosen psychologist to be charged with the responsibility of making the orders work.
The father in his oral evidence said that he wanted to be given the opportunity to provide love and comfort to the child He should have that opportunity. However in the event that there is some difficulty, it will be convenient to be able to immediately access help when the need arises.
Section 60CC(3)(g) - Maturity sex lifestyle and background
The child is a five-year old girl. She would be unable to remember her parents living together. She is bright, artistic, well-behaved and to use the words of her pre-school, delightful. She may be wary in relationships and test them. She is already bilingual in English and Italian. She has good relationships with cousins on both sides of her family.
Sections 60CC(3)(k), (4), (4A) - The attitude to the child and the responsibilities of parenthood
The mother has devoted herself to the care of the child and has given her priority in her life, even to her own detriment. The mother has struggled with depression and anxiety, at least since 2007. There was no significant improvement for her as noted by Ms E over the three years or thereabouts of their relationship.
The mother has struggled with being a parent but has sought assistance from a variety of resources. She did have the benefit of the advice of a psychologist, Dr O, about establishing routines and staying calm. She was unable to accept this advice and has at times found the child’s behaviour hard to manage. This is hardly surprising given the number of interventions the child and her mother have attended over the last two and half years.
The father has been responsible most particularly financially. He provided accommodation for the mother and the child, then a young baby, post separation. He has continued to pay child support. He has been steady in his interest in having the child for regular weekly periods of time. He made a proposal in May 2009 for time to increase to longer periods, including overnight. I am satisfied he would have continued to develop the relationship and to spend increasing amounts of time with the child if he had been able to.
Section 60CC(3)(j) and s 60CC(3)(k) - Family violence and family violence orders
There are no family violence orders in place. The mother says that the father was violent towards her early in the marriage, slapping her face and attempting to break a piece of furniture in her parent’s home through frustration. The father denies hitting or hurting the mother. The parties agree that there was significant argument between them from marriage to the date of separation.
No doubt the child as a very young child was exposed to this. There have been at least two occasions when the child has been exposed to violent argument, particularly on the occasion when her father broke into the apartment to recover his keys which he had inadvertently left inside. It does not appear that the child has been permanently adversely affected by these matters.
Section 60CC(3)(l) - An order less likely to lead to further proceedings
In the report of Dr W the doctor reflects on the orders sought by the father at that time which was for alternate weekends, one week day afternoon and other celebratory times. Dr W considered that application as appropriate but saw the problem as implementation. He said this[111]:
The problem however is implementation. I am very concerned that [the mother] behaves in such an insightless, transparently coercively and persuasive way that she will be able to set [the child] against her father and that the visits will not last very long. Indeed I note that the materials I have received from the Contact Centre seem to indicate this inexorable downward slide over quite a short time timeframe. I also note other medical records which seem to indicate that [the mother] has a propensity to exaggeration and my impression that she can be quite selective about what she focuses on and how vividly it is described.
[111] Dr W’s report, page 23, par n.
As previously stated, Dr W’s prediction was accurate, both as to contact visits in the Contact Centre B and again during supervised visits by Contact Centre A. In the event that the child remained living with her mother, I consider that it is inevitable that further allegations would be made if the child spent time with her father, whether or not that time was unsupervised. On the other hand, if the child lives with her father and the mother is appropriately supervised until she comes to terms with the change, the child will no longer be confronted with her mother’s ideas about her father.
I am satisfied that the father will promote the child’s relationship with her mother.
Section 60CC(3)(m) - Any other relevant fact or circumstance
The mother has revealed a quick willingness to complain. In particular she complained in letters to Contact Centre A and to third parties in authority at length and in stern terms. The mother conceded that she had not composed the letter to Contact Centre A herself and had been assisted by a person who she was unwilling to name. The mother wrote twice to Contact Centre B to raise complaints about lack of appropriate supervision leading to the child being abused. The mother complained about two of the supervisors.
It is appropriate of course for anyone to address matters where they are dissatisfied. However I think there is a risk of the child learning that once committed to a course, her mother will not brook opposition and will confront it until she has her way.
The child referred to her mother and grandmother as often fighting, which the mother denied, but my impression of the mother was that there was a somewhat stubborn and confrontational aspect to her personality. This was brought to bear in relation to the mother’s belief about sexual abuse allegations, but seems to be a reflection to the mother’s attitude to those who do not share or support her views.
A prime example of this was her attitude to the JIRT team in September 2009 advising her that the child could not be interviewed. The mother was not simply unhappy about that but is recorded as having said: “How do I save this child? No one is willing to protect (my) daughter. There is no justice[112]”.
[112] Magellan Report 09/11/2009, page 2.
In her oral evidence the mother agreed that JIRT and the Department had done the wrong thing by her daughter and still held the belief that her child should have been re-interviewed. It was from the refusal by JIRT that the mother proceeded to take the child to Ms E, the mother’s own psychologist and was successful in having the child interviewed twice by her.
Section 61DA - Parental responsibility
When making a parenting order in relation to a child, the Court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that the parent of a child has engaged in:
(a) abuse of the child; or
(b) family violence.
The presumption may be rebutted by evidence that satisfied the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this matter I am satisfied that the parents do not have the capacity to share equal shared parental responsibility for the child. The father will be making all of the decisions about the day-to-day care of the child. It is important however that the mother maintains the relationship and the knowledge of how her daughter is progressing. It is for that reason that an order has been made for sole parental responsibility for the father, but that he must advise the mother of his long-term plans and must genuinely take into account her views provided they are expressed in the way set out by the order.
It would really be artificial to make an order for equal shared parental responsibility. Both parents and the Independent Children’s Lawyer asked for this order. However, the parents have been locked in conflict over the allegations raised on behalf of the child. The mother has not at any time consulted the father in advance of long-term decisions being taken. Importantly the mother continues to express the view that the child has been sexually abused and cruelly used by her father despite supervision.
In her oral evidence the mother was horrified at the idea of the child living with her father and could only say that she would need to see the child every day in response to the question “What orders for time would she seek.” I consider that there will be a period of weeks or months when the mother has the utmost difficulty accepting the change of arrangements and would be quite incapable of actively cooperating with the father, consulting and compromising to make decisions about the child. The mother will need time to hopefully reconsider her position and to seek professional help to understand this outcome.
For that reason time is graduated over a period from short supervised visits to weekends and holiday times. The child will be older and more able to communicate concerns by that time.
Conclusion
The child spent regular unsupervised time with her father from the time of separation of her parents (late 2007/early 2008) until May 2009. There were no orders in place. Since May 2009 the father has spent no unsupervised time with the child at all.
Allegations of sexual misconduct by the father were made by the mother in her first affidavit in these proceedings filed September 2009. The allegations have become more serious as time has passed. The father denies any misconduct and further denies that such allegations were raised with him prior to the filing of the affidavit.
Allegations of sexual abuse and assault have continued to be made by the mother on behalf of the child from September 2009 to the date of hearing. The mother became increasingly focused on finding and presenting evidence of this kind to obviate unsupervised time between the child, her father and his extended family.
This conduct by the mother has been adverse to the child’s welfare. She has been interviewed and examined extensively. I have found that she has made reports about her father on the instructions of her mother. The mother believes that abuse has occurred, despite the compelling evidence to the contrary by:
(i) Members of the father’s family;
(ii) Contact Centre B;
(iii) Contact Centre A.
The mother has interrogated the child and seized on pieces of information to create sinister interpretations. It is likely that some allegations have been so exaggerated that from an original grain of innocent fact, that they amount to fabrication.
I conclude that the mother is unlikely to relinquish her belief that the child has been cruelly treated and sexually assaulted by her father. This despite the lack of medical evidence of the kind that would be expected if a child had been assaulted. The mother is committed to her belief. The potential damage to the child is thoroughly set out in the reports of Dr W and the Family Consultant. I accept their evidence[113]:
[The mother] appears to be reinforcing in [the child] that [the father] cannot be trusted. Without the presence of trust in this relationship, it is difficult for [the child] to feel safe, close to [the father], or thoroughly comfortable in his care.
On what I have seen, I think that what has most probably happened is that [the child] has been interrogated by her mother, perhaps unintentionally or in a misguided fashion, and that [the child] had been producing increasingly fanciful material largely made up from her own child experience which she has attached to the scaffolding of leading questions which have brought up subjects like touching in the genital area, penetration etc. I would also note that if this is the case, this would constitute a form of psychological abuse of the child in the form of implantation of false memories. (emphasis added)
[113] Dr W’s report, pages 21-22.
The child should no longer be asked to withstand the gradual building up of her relationship with her father only for it to stop. She must not be compelled to answer any more questions about past allegations, or submit to physical examinations. She needs stability in her life and fun.
Residence with her father in my view offers the child her best chance of developing and maintaining meaningful relationship with both parents. Each of them loves her very much. She will need that loving support to adjust to the shock of a change of residence and limited time with her mother, for some time.
That will be especially difficult for the mother. For that reason an order has been made for the release of relevant material to any specialist, medical practitioners or psychologist who may help the mother to come to terms with the loss of the fulltime care of her only child.
I certify that the preceding two hundred and sixty-four (264) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 December 2012.
Associate:
Date: 2 December 2012
Ms GM, Supervisor for visits on 05/12/2010; 13/02/2010; 27/02/2011.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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