Goode & Goode

FAMILY COURT OF AUSTRALIA

J & P

[2006] FamCA 1386

CHILD – conditional application of presumption of equal shared parental responsibility – unacceptable risk of child sexual abuse – principles – requisite findings of fact – weight given to part of the expert evidence – relevance of anxiety of the parent with whom the child primarily lives – graduated regime of supervised or unsupervised periods of time to be spent by the child with the father.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755; M v M (1998) FLC 91-979 at 77,081; “Unacceptable risk – a return to basics”, Hon. J Fogarty, AJFL, vol. 20 (No. 3) at 249; B and B (1993) FLC 92-357 at 79,780; R v C (Family Court of Australia, 25.06.1993, unreported); U v U (2002) FLC 93-112

APPLICANT:

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Loders, Lawyers

FILE NUMBER:

SYF

4309

2002

DATE DELIVERED:

22 December 2006

PLACE DELIVERED:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

31 July 2006; 1, 2, 3 & 4 August 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Connor

SOLICITOR FOR THE APPLICANT:

Abbott Tout, Lawyers

COUNSEL FOR THE RESPONDENT:

Ms D Hausman

SOLICITOR FOR THE RESPONDENT:

Kydon Segal, Lawyers

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER:

Mr D Dura

INDEPENDENT CHILDREN’S LAWYER:

Loders, Lawyers

Orders

That the parties have equal shared parental responsibility for their child L (“the child”) born in September 2000 in relation to the care, welfare and development of the child of a long-term nature other than the child’s health in respect of which the mother shall have sole responsibility after first consulting the father except in cases of emergency AND that the parties shall note the obligations created by this Order and the contact Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
That the child live with the mother at all times other than as specified in Order 3.
That the child live with the father as follows:
During school term
(a)During each alternate Sunday commencing at 9.00am and concluding at 6.00pm commencing on the first Sunday following the commencement of the first school term 2007 and continuing for four (4) subsequent occasions such periods to be supervised at all times by both or either of the husband’s brother and sister-in-law.
(b)Thereafter each alternate Sunday during the same times on an unsupervised basis until the end of Term 1 2007.
(c)In Term 2 2007 and thereafter each alternate weekend from 10.00am Saturday until 6.00pm Sunday on an unsupervised basis commencing from the first Saturday following the commencement of the second school term and thereafter commencing at 10.00am on the first Saturday following the commencement of each subsequent school term.
School holidays commencing at the end of each school term
(d)For the periods referred to in Order 3(a) on a supervised basis supervised by both or either of the supervisors referred to in Order 3(a) commencing on Sunday 31 December 2006 until the conclusion of the January 2007 school holiday period.
Unsupervised periods with the father
(e)During the school holidays following the conclusion of each school term in 2007 on a three (3) day cycle with intervening three (3) days with the mother the first period of three (3) days commencing at 10.00am on the first day of the relevant school holiday period and concluding no later than 6.00pm on the last Saturday prior to the commencement of the next school term.
(f)From the commencement of the December 2007/January 2008 school holiday period on a seven (7) day cycle commencing at 10.00am on the first day of such holiday period with the intervening seven (7) days with the mother and concluding no later than 6.00pm on the last Saturday prior to the commencement of the next school term.
(g)During school holiday periods commencing from the conclusion of the last school term 2008 being for the first half of such school holiday periods in each even numbered year and the second half in each odd numbered year concluding no later than 10.00am Saturday prior to the first day of the next school term.
Other unsupervised periods with the father
(h)On Father’s Day from 10.00am until 6.00pm should it be a day on which the child would not normally spend time with the father.
(i)In the event that the child’s birthday falls on a day on which she would not normally spend time with the father then the parties shall ensure the child spends time with the father for three (3) hours on her birthday.
General
(j)For such alternative or further periods as the parties may agree upon from time to time whether it be during school term; school holidays; or other periods or days whether supervised or unsupervised.
That notwithstanding Order 3 the parties shall ensure the child lives with the mother as follows:
(a)In the event that Mother’s Day falls upon a day on which the child would normally spend time with the father she shall instead live with the mother from 10.00am until the commencement of the next period of time that the child is due to spend time with the father pursuant to these Orders.

Ancillary orders

That in the event of the child becoming seriously ill or injured during a period in which the child is under the care of one party or the other then that party shall immediately notify the other party of details of the illness or injury as well as the name, address and telephone number of the relevant hospital or medical practitioner.
That the mother shall authorise and request the Principal of all schools attended by the child to furnish the father at his expense if necessary copies of all of the child’s school reports, notices, memoranda and correspondence in relation to all school activities, functions and sport involving the child.
That each party shall facilitate and encourage the child to have telephone communication with the other in privacy at all reasonable times that the child is under the care of one or other of the parties.
That each of the parties attend and complete a post-separation parenting program as soon as possible after such program has been nominated by the independent children’s lawyer and within 14 days of receiving such notification shall inform the independent children’s lawyer and the other party in writing of the date of commencement of such program.
That the father attend and complete an anger management program as soon as possible after such program has been nominated by the independent children’s lawyer and within 14 days of receiving such notification shall inform the independent children’s lawyer and the solicitor’s for the mother in writing of the date of commencement of such program.

Injunction

That until further order the mother is restrained from permitting Mr B from engaging in any of the following activities with the child:
(a)bathing or showering with the child or assisting her with those activities;
(b)dressing or undressing the child;
(c)in any way assisting with the toileting of the child.
That each of the parties shall not denigrate or criticise the other to or in the hearing of the child including but not limited to making any comments in respect of the evidence in these proceedings or the Reasons for Judgment and each of the parties shall use her or his best endeavours to ensure no other person conducts himself or herself in that fashion.

Other orders

Liberty to apply for orders setting aside varying or suspending any of the parenting orders made this day upon three (3) days’ written notice being given.
That all documents produced on subpoena may be returned to the person who produced the same.
That the parties and/or the independent children’s lawyer may make an application for an order for costs in accordance with the Rules on a date and time convenient to all the parties by arrangement with the Associate to the Hon. Justice Rose or as otherwise ordered.
That subject to Order 14 the proceedings be removed from the Active Pending Cases List.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number: SYF4309 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, the applicant J (who for convenience I shall refer to as “the mother”) seeks orders that parenting orders made on 5 March 2003 (“the 2003 orders”) pursuant to which the respondent P (who for convenience I shall refer to as “the father”) had contact with the child of the parties be discharged in accordance with the mother’s Application for Final Orders filed 6 December 2005.
The father seeks parenting orders in accordance with his Amended Response filed 11 July 2006. In substance, the orders sought by the father were:
(a)that the child live with him other than specified periods during which the child would live with the mother, principally being:
(i)during school term;
(ii)two weekends out of four; and
(iii)in the other weeks from the conclusion of school on Monday until the commencement of school on the following Wednesday,
(b)that the child spend half of school holiday periods with each of the parties;
(c)orders in relation to other particular occasions; and
(d)that each party have communication with the child by telephone at all reasonable times.
The father also sought an injunction whereby the mother is restrained from leaving the child alone with her husband, Mr B or enabling him to have unsupervised contact with the child or permitting him to be involved with dressing/undressing/bathing/showering or toileting of the child.
During submissions counsel for the mother stated that her case was that there was an unacceptable risk of sexual abuse of the child by the father rather than that there be a finding that the father sexually abused the child.
During her submissions, counsel for the father informed me that the father no longer sought an order that the child primarily live with him.
Exhibit 10 is the Minute of Orders sought by the independent children’s lawyer. In accordance with conventional procedure those orders were sought during the course of final submissions. In substance, the independent children’s lawyer sought orders that the child live with the mother subject to those periods that the child spend with the father. The relevant periods were:
(e)during school term for the first and second weekends of each three week cycle;
(f)half of school holiday periods;
(g)other specified occasions; and
(h)telephone communication during particular times.
The independent children’s lawyer also sought an injunction whereby the mother would be restrained from allowing Mr B to engage in specific activities similar to the injunction sought by the father.
A further injunction was sought by the independent children’s lawyer restraining the mother from enabling the child to be counselled by a therapist or other health professional without the prior written consent of the father, or further order.
The independent children’s lawyer also sought orders that the parties attend and complete a post-separation parenting program and that the father attend and complete an anger management program.
An order for costs was also sought by the independent children’s lawyer.
The primary issues of fact for determination were whether or not the child is at risk of sexual abuse by the father, and if so, whether such a risk is unacceptable, apart from the ultimate issue of the best interests of the child.

Historical background

The following are further brief relevant historical matters.
The parties had two periods of cohabitation, namely from October to December 1999 and then from May 2000 to 1 November 2000.
The parties have lived separate and apart from each other continuously since that time.
The mother is 40 years of age and engaged in home duties.
The father is 37 years of age and is self-employed.
The father has an intimate relationship with Ms D who is 31 years of age and employed as a manager. Ms D lives in M and the father stays with her in her home for varying periods during the week. Generally speaking, the father and Ms D propose to live together at some indeterminate time in the future.
The child of the parties, the subject of these proceedings, is L (“the child”) who is 6 years of age having been born in September 2000. The child was 1 ½ months old when the parties separated. The child has primarily lived with the mother since that time.
The mother commenced to live with Mr B in January 2004. They subsequently married in July 2004 and have continued to cohabit.
Mr B is 39 years of age and is a designer.
The mother and Mr B have a child, A known as “MI” who is 2 years of age having been born in November 2004.
The mother, Mr B, the child and MI reside together at C.
The father resides at B in premises owned and also occupied by his brother, and sister-in-law as well as the paternal grandparents on a temporary basis.
The father owns a two-bedroom unit at B which is currently leased (“the B Unit”). The father proposes to re-occupy the B Unit at an indefinite time in the foreseeable future.

Relevant orders

On 27 September 2002 a Registrar of the Family Court of Australia made orders that:
“1.I suspend Interim Orders made by the Local Court, Family Matters on 26 July 2002.
2.That the child [L] born [in] September 2000 have contact with the Father as follows:
a)On a 2 weekend out of 3 cycle as follows:
I.On Saturday and Sunday from 8am until 4pm. First such Saturday to commence 12 October 02, with the second period to commence 2 November 02.
II.On the Second Weekend from 8am until 4pm on Sunday. First such Sunday to commence 20 October 02, with the second period to be 10 November 02.
III.For this weekend only being Sunday 29 September 02, from 8am until 4pm.
b)Each Wednesday between 7.00am until 8.30am
c)Telephone contact each Monday and Saturday at 8am or soon thereafter.
3.The Father to have contact with the child on Christmas Day from 9.30am until 7pm that evening.
4.At all other times the child to live with the Mother
5.The Father is to collect and return the child to the Mothers home for all periods of contact
6.Parties may vary Sunday contact as set out in Order 2(a)II to a Saturday, by giving each other 14 days notice.
7.The parties may by agreement vary dates, times and places of interest.
8.Each party has responsibility for making decisions concerning the day to day care, welfare and development of the child, whilst the child is in their care.
9.By Consent, each party is restrained from taking the child out of the State of New South Wales without the written consent of the other party obtained before hand or by order of the Court.”
On 5 March 2003 the 2003 orders were made by consent as final orders. Those orders provided for the child to live with the mother and for her to have sole responsibility for the child’s daily care, welfare and development during such times as the child lived with her. The orders made on 27 September 2002 where set aside, except for certain of the contact orders. In addition, orders were made for the father to have contact with the child upon the child attaining the age of 3 years each alternate weekend; each Wednesday morning for an hour and a half; and part of Greek Easter; as well as more extensive orders upon the child attaining the age of 5 years.
In November 2005 in the Local Court at North Sydney an interim apprehended violence order was made for the protection of the mother and Mr B from the father. Subsequently, the father pleaded guilty to a charge of common assault arising out of the incident at the home of the mother and Mr B in November 2005 to which subsequent reference will be made. There is an absence of evidence in relation the relevant court orders.
In December 2005 a Registrar of the Family Court of Australia suspended the father’s then current contact orders; an injunction restraining the mother from discussing proceedings with or in the presence of the child; and requiring the mother to ensure that no other person other than professional persons or the independent children’s lawyer discuss the proceedings with the child in her presence or hearing. Directions were made.
In December 2005 interim contact orders were made in favour of the father for the period 10.00am to 4.00pm on specified two consecutive days in each week for particular dates in December 2005, January and February 2006. Such contact was to be supervised by one or more of the father’s brother, sister-in-law, or the paternal grandparents. Further orders were made in relation to the appointment of Dr Q as the child expert for the purpose of preparing a report; injunctions restraining the parties from taking the child for medical examinations or further counselling; and requesting the Director-General of the NSW Department of Community Services to intervene.
In February 2006 further interim orders were made which included a contact order in favour of the father for the period 10.00am to 4.00pm on specified dates in February 2006. Such contact was to be supervised by one or other of the father’s relatives previously described. Directions were made.
In February 2006 interim contact orders were made in favour of the father for the period 10.00am to 5.00pm on specified dates in February, March, April, May and June 2006 on a supervised basis as previously.
In May 2006 a written undertaking was made by the mother to the Court pending further order in which she undertook to take all steps necessary to ensure that Mr B was precluded from the following activities in relation to the child:
“(a)bathing (in the bath or shower) with the child, or assisting the child with her bathing activities;
(b)dressing or undressing the child to or from her underclothes;
(c)appearing naked in the presence of the child;
(d)in any way assisting with the toileting of the child.”
That undertaking was subsequently given by the mother.

Relevant legal principles pursuant to the

family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.

It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the child and other relevant factors

Each of the parties gave evidence which, if accepted, implicitly reveal that the views of the child are to continue to spend periods of time with each of them. Although, the evidence of the mother is that the child from time to time has been resistant to spending previously arranged periods of time with the father.
Expert evidence was given in the form of a report which became Exhibit 1, as well as orally, by Dr Q. Her evidence does not directly deal with this issue. However, it is implicit in the positive aspects of the relationship that the child has with each of the parties and members of the paternal family that the child’s views are to continue to spend time with all of them.
It is also implicit from Dr Q’s evidence, which I accept, is that the child’s primary attachment is with the mother and consequently I find the child’s view is to maintain that attachment by continuing to mainly live with the mother absent contrary evidence.
There is no issue arising out of the evidence of Dr Q that the child is a very intelligent and articulate child.

The nature of the relationship of the child with each of the parties and other persons

I accept Dr Q’s evidence unless otherwise stated. Her evidence was generally professional and well-considered.
There is no issue that the child has a loving relationship with each of the parties. Although, so far as the father is concerned there are inherent complexities in that relationship. Exhibit 1 contains Dr Q’s conclusion that:
“[L] has a complex relationship with her father. Predominantly, she seems to have a very warm and affectionate bond with him but there is also some guardedness.”
I accept Dr Q’s evidence in that regard and make findings accordingly. However, Dr Q then proceeded to express the view that the “guardedness” to which she made reference:
“…could be as a result of some experience of inappropriate touching or equally could be the result of her having been coached to believe that some abuse took place.”
Dr Q then expressed her impression “that [L’s] disclosures were not authentic and were probably related to some form of coaching”. That “impression” will be reviewed by me in the context of my findings on the evidence on the subject of whether there is an unacceptable risk of the child being sexually abused by the father having regard to past allegations and disclosures that were made.
Dr Q also came to the conclusion that the child “has a very warm and loving bond with her stepfather” who appeared very loving towards her. Dr Q expressed concern regarding the intensity of Mr B’s attitude to the child and in that regard she expressed what seemed to be tentative views. Exhibit 1 refers to the view that Mr B’s attitude to the child was one borne out of concern and protectiveness due to a belief that the child had been abused by the father, but that his attitude may also or separately be due to historic issues of sibling rivalry within his own family and quite serious psychopathology that Dr Q considers was apparent from the file of Dr D who had been the consulting or treating psychiatrist for Mr B and previously the mother.
Dr Q concluded that the child has “a normal sibling relationship with [A]”. I accept Dr Q’s evidence.
Dr Q also concluded that the child “has an important attachment to all the paternal family and they are very loving and appropriate with her and appear highly invested in her welfare”. I accept Dr Q’s evidence subject to the evidence of the mother that the father’s brother may have made statements to or in the hearing of the child which could be taken as a means of undermining the child’s relationship with the mother perhaps in the context of the distressing disclosures of alleged abuse by the father of the child. I will refer to this matter subsequently.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

I have concluded that the mother has a demonstrated willingness and ability to facilitate and encourage the relationship referred to. Generally speaking, arrangements between the parties for periods of time to be spent by the father with the child or pursuant to the relevant orders earlier referred to in this Judgment, suggest that the mother has played her part in that regard.
Obviously, the attitude of the mother changed once there had been a number of disclosures made to her by the child which could be interpreted as the father having sexually abused the child. However, despite that background when at that stage there had been vague comments made by the child regarding her sore “front bottom” being a reference to her vaginal area, the mother actively facilitated a Queensland holiday of several days which the child had with the father in accordance with previous arrangements, by the mother also travelling with the child for that purpose. Those actions of the mother took place notwithstanding the violent conduct of the father in November 2005 at the home of the mother and Mr B. The mother’s actions of proceeding to accompany the child for the holiday with the father to Queensland, at expense to her, demonstrated a willingness and encouragement to facilitate time to be spent with the father that perhaps not many other parents in her situation would have shown, including the father.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living

I accept the evidence of Dr Q that the child is primarily attached to the mother. Consequently, in view of the child’s young age and the fact that the child has lived primarily under the sole care of the mother since she was 1 ½ months of age, it would be traumatic for the child to no longer primarily live with the mother.
As previously referred to, this is no longer an issue as the order that had been previously sought by the father that the child live with him was no longer sought.
A potential change in the child’s circumstances is that the child spends future periods of time with the father on an unsupervised basis as well as for lengthier periods of time than as provided in the last interim parenting orders, namely 24 February 2006.
The assessment of the likely effect of the child in those circumstances will in the context of these proceedings largely, if not entirely depend upon my subsequent findings in respect of the allegation of unacceptable risk of child abuse by the father.
Consequently, my consideration of the likely effect upon the child of changes in her circumstances will be a consideration dealt with by me in the conclusion of this Judgment.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty and expense involved as the child lives with the mother at C and the father lives at B. Nonetheless, generally speaking arrangements made by the parties that have taken place in the past or otherwise pursuant to current Court orders have occurred without any real difficulty.
No submissions were made in this regard.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

There is no issue that each of the parties has the capacity to provide for the physical needs of the child subject to the allegations made that there is an unacceptable risk to the child of child abuse by the father which will be the subject of subsequent findings.
There is no issue in relation to each party’s capacity to provide for the emotional and intellectual needs of the child subject to the same allegations that have been made due to the potentially adverse emotional effect upon the child if findings are made consistent with the mother’s case or alternatively, that the allegations made by the mother and/or Mr B were contrived.
An issue was raised in the proceedings in relation to the capacity of Mr B to provide for the physical needs of the child in terms of safety from child abuse and the consequential emotional effect upon her. Those matters will also be the subject of subsequent findings by me.

The maturity, sex, lifestyle and background of the child and with either of the parties

The child is a light, young girl who in the assessment of Dr Q is very intelligent and articulate.
The child is fortunate to have a multicultural background which includes the Greek background and culture of the father. No issues have been raised in relation to those matters.

The parental attitude of each of the parties

This matter would be non-controversial were it not for the allegations of unacceptable risk of child abuse of the child to which earlier reference has been made.
The mother has also alleged that due to comments made to her from time to time by the child the father has sought to manipulate the child’s feelings to ensure she is closer or more sympathetic to the father. I accept the mother’s evidence which was not substantially challenged, if at all, and make findings accordingly.

Family violence and family violence orders

The evidence is that in 2005 and perhaps earlier, the mother claims that the child from time to time complained to her of having a sore “front bottom” following periods of time spent with the father. The evidence is the child had in the past suffered from a form of vaginal infection for which she had been treated.
The mother became increasingly concerned as to the possibility of sexual abuse of the child by the father. The mother and the child have consulted Dr G (a general practitioner). Exhibit 5 contains Dr G’s clinical notes.
On 22 October 2004 the mother brought the child to Dr G for examination. Dr G examined the child and concluded that there was “no sign of trauma”. Apparently, subsequent pathology tests did not change that conclusion. Dr G expressed the view in his notes that the child was “very happy and gregarious showing no concern about being examined”.
In November 2005 the interim apprehended violence order was made in the Local Court North Sydney earlier referred to. That followed violent conduct by the father at the home of the mother and Mr B in November 2005 referred to in the following paragraphs.
In November 2005 the father attended the home of the mother and Mr B in the company of the father’s brother. The background was that there had been prior arrangements made between the parties to enable the father to take the child on a holiday to the Gold Coast in Queensland.
The evidence of the mother is the child showed increasing opposition to travelling with the father in accordance with those arrangements. Ultimately, Mr B telephoned the father and expressed the concern that he and the mother had in relation to the child travelling with the father on holiday due to the child’s resistance and suggested the arrangement be postponed. The father was adamant the holiday arrangement proceed. Mr B then conveyed the view of the mother, in particular the child should not be compelled to travel in the circumstances described. The father took the view that he was being dictated to by Mr B in relation to when he could have the child. The father reacted angrily and then went with his brother to the home of the mother and Mr B.
Upon arriving at the mother’s home, the mother, Mr B and the child were present as was Ms M who had been employed by the mother on a part-time basis as a babysitter for the child and later MI.
Regardless of the father’s resentment, justified or not, at the content and tone used by Mr B (as perceived by the father), his violent conduct in physically assaulting Mr B and involving the mother in that fray, not to mention the stress which must have been caused to the child irrespective of whether or not she was physically present when the assault occurred, was inexcusable.
Whilst I accept the evidence of the father’s brother that he intervened to pull the father away from Mr B it is a pity that he was either unable or did not want to prevent the father from conducting himself in the way described.
The evidence before me, which I accept, is that the father recognised he behaved in an unacceptable and violent manner.
There is no evidence of the father repeating that conduct or threatening to do so.
Following the incident at the home of the mother and Mr B in 2005 the father left with the child for a short while to have a discussion with her and then returned. The child was crying. The child said she would go with the father on holiday.
The mother subsequently arranged with the father that she would accompany the child on the holiday to the Gold Coast. The mother considered that such approach at her expense would provide comfort to the child and that they would occupy a separate room to the father in the hotel. The parties and the child then travelled by air to Queensland. The child had greeted the father at the airport in Queensland and embraced him. The holiday ensued until the return by the parties and the child to Sydney in November 2005.
The evidence of the mother, which I accept, is that the child was relaxed and happy following checking in to the hotel and her visit to the father’s room. Later that day the child went with the father to his room to have dinner. Upon the child’s return the mother noticed the child appeared to be very active and precocious. The child did not answer the mother directly when she asked her a number of questions to ascertain if there was something wrong or untoward happened. Eventually, the mother asked the child whether the father had touched her and the child “jabbed her finger repeatedly towards her lap”. Subsequently, the child claimed the father pinched her gently near her vagina and on her bottom. The next day the child went to entertainment areas with the father and subsequently had dinner with him. Upon the child’s return the mother stated the child was tired but otherwise did not act in a disturbed way as during the previous night. During the last night in Queensland the mother states that the child said to her the father had been touching her and demonstrated that by putting her hand down the back of the mother’s pants and pushing her finger into her bottom. The child then would not discuss the matter further or engage in any conversation as to the activities of that particular day. The parties and the child returned together to Sydney.
The evidence of the mother is that despite her concerns as to possible abuse of the child by the father, she permitted the child to spend the last part of the holiday with him on the basis that she considered the child would be safe as they were only going to public areas.
The day following the parties return with the child to Sydney, the child spent that day with the father to attend a concert with him. The mother’s evidence is that upon the child returning to the home, she was upset and said to the mother “well he touched me again”. The child was hyperactive and disobedient. The next day the mother made arrangements for a consultation with Dr G. Before leaving to attend that appointment the child allegedly disclosed to the mother the father had pulled her buttocks apart while bending forward and that “he put his penis there”. The child indicated that this type of behaviour had previously occurred.
Exhibit 5 reveals that during the course of the consultation the mother claimed the father “has been touching [L’s] genitals – [L] said this happened yesterday and F was touching his penis afterwards”. Dr G did not carry out an examination. After he had called paediatricians at Royal North Shore Hospital, Dr G referred the matter to the Child Sexual Unit as well as making a disclosure to the NSW Department of Community Services. Apparently, any subsequent examinations or information given did not advance the matter any further. In view of the notes and assessments contained in Exhibit 8.
A “Magellan Report” was provided by the NSW Department of Community Services and was made Exhibit 9.
On 2 December 2005 the child was interviewed by officers of the Joint Investigation Response Team (“JIRT”). Further disclosure was apparently made by the child, although in different terms to that previously referred to. The child is recorded as having said “the father sticks sharp knives, pointy sticks” and penis in her vagina in public. The child is recorded as further stating “that her father touches her vagina with his hands and he does it because he wants everyone to laugh at her”. According to L her father “he ripped my bottom apart” and “he turned me around and showed it to everybody”. In addition, L stated that during their trip to Queensland her father touched her vagina with his penis wherever he took her during the day and night. L reported that she and her mother “resided in separate rooms and her father”.
Exhibit 9 (Report dated 8 February 2006) concludes that:
“the Department of Community Services is unable to substantiate risk of sexual harm/injury on [L]. Therefore the Department does not have grounds to consider taking further action at this time and do not propose to intervene in Family Court proceedings.”
Critical evidence reaching conclusions as to whether or not there is an unacceptable risk of child abuse by the father has been the evidence of Dr Q, a well qualified child expert and of substantial experience.

That evidence has been particularly important in view of the nature of the disclosures alleged to have been made by the child, especially during and subsequent to the Queensland holiday in November 2005, the child being an intelligent and articulate young girl, and the obvious distress that has been experienced by the mother in particular, not to mention all other relevant adults.
Particularly relevant material contained in Exhibit 1 is as follows, not departed from by Dr Q during the course of her oral evidence:
(a)“[L] separated easily and was happy to interact with me”. Dr Q noted that the child was making good school progress and there were no behavioural problems.
(b)Upon being asked when the child was angry she volunteered “when my dad used to stick sharp stuff into my bottom and having to go to places all the time like this and asked questions”. The child has been asked “180 questions”. I infer that from the child’s perspective she may have been over-questioned or had to participate in discussions about disclosures and other related matters which had become overwhelming.
(c)Upon being asked when the father did do the things referred to, the child said:
“when I went to visit daddy he did it, he still does it. Not when people are around like you.”
(d)Upon being asked what were “the sharp things”, the child’s answer was “like knives and forks and a stick, it was a stick from a tree, he had to pull parts of the tree”. The child said that this happened at “his house”.
(e)The child said that in relation to whether her paternal aunt was there, the child’s answer was “mostly and mostly not”.
(f)Dr Q considered the child volunteering “this is the truth” was highly unusual and not typical of a child of her age.
(g)Importantly, in relation to the Queensland, Dr Q recorded that the child’s response “it was great”. The child mentioned that the best part was seeing dolphins. Upon the child being asked what the worst part of the holiday was, the child’s answer was “nothing”.
(h)The child stated that at the father’s home she has her own bed in his room. She stated that she does not sleep over anymore “because he stuck things up my bottom”. Dr Q noted that the child made that statement “very casually” and then returned to her game.
(i)Apparently, the child said that she did not want to return to sleep-overs at the father’s place or the home of her paternal uncle and aunt and upon being asked her reasons, the child responded “I don’t know, I am not sure”.
Dr Q’s conclusion in relation to the disclosures, their content, and the manner in which they were given was:
“Given that [L] is an intelligent and extremely articulate child, the disclosures made during this assessment were inconsistent and at times made little sense, for example, knives and forks in her bottom.” {emphasis added}
Dr Q noted the very warm and affectionate bond with the father “but there is also some guardedness”. Dr Q noted that it may be as a result of inappropriate touching but alternatively due to the child having been coached to believe that abuse actually occurred.
Dr Q’s conclusion, although inferentially not an analytical one due to her phrase “it was my impression” was in the following terms:
“That [L’s] disclosures were not authentic and were probably related to some form of coaching.” {emphasis added}
Dr Q raised as an issue whether or not the mother has had “over-stated concerns” regarding sexual abuse of the child and has tried to alienate the child from the father.
At this point, it is relevant to state my finding in relation to the credibility of the mother. Having read the affidavits of the mother and in particular closely observed her whilst giving her oral evidence and the manner in which that evidence was given, I have concluded that the mother has been a sincere and truthful witness.
I find that the mother has not either coached the child or sought to alienate her from the father, those being possible explanations for disclosures raised by Dr Q in Exhibit 1. Indeed, I find the mother has been willing and facilitated periods of time spent with the father, has been very responsible in not initially over-reacting to earlier statements made by the child which could have been interpreted as disclosures of possible child sexual abuse and, at her own expense and no doubt inconvenience, was very constructive in relation to ensuring that the November 2005 Queensland holiday took place.
It is not beyond the realms of possibility that other parents in her situation, especially following the father’s inexcusable violent conduct shortly prior to that Queensland holiday occurring, not to mention increasing concern regarding the child’s statements to which I have referred, would not have accompanied the child to Queensland for the purpose of enabling the child to hopefully enjoy holiday arrangements with the father.
I am fortified in that approach due to the lack of substantial, if any, cross-examination of the mother by experienced counsel so far as the issues of possible “coaching” or alienating conduct were concerned.
Dr Q expressed the following opinions in relation to the subject allegations:
“The disclosures made to this assessor were not in keeping with her developmental abilities. She would be capable of identifying sexual abuse more accurately than she did. She made very explicit disclosures during this assessment but given her developmental capacity and excellent expressive language and intelligence it was surprising that there were bizarre allegations such as having knives and forks stuck in her bottom. [L] said this without emotion. These statements were tossed at the interviewer in a very casual way without appropriate affect.”
Dr Q raised the possibility of whether there may have been some involvement by Mr B given the descriptions of “knives and forks” having regard to Dr Q’s review of information provided by Mr B’s consulting psychiatrist, Dr D.
Exhibit 6 contains clinical notes provided by Dr D. Dr D included the copy of a Report dated 25 May 2005 that he had furnished to Dr L, a general practitioner who Mr B had previously consulted. Dr L had referred Mr B to Dr D.
Dr D expressed the opinion that Mr B had historical periodic major depressive episodes and was suffering from a “mood disorder”. Dr D considered Mr B was a very distressed 37 year old man. Anti-depressants were prescribed. Dr D recommended further review and the possibility of on-going psychotherapy.
Mr B had volunteered evidence in chief regarding a disturbing episode of the child acting in a sexualised way by sliding on one of his legs in the bath and showing what seemed to him to be unusual fixation with his genitalia. The evidence of both the mother and Mr B was that he had appeared to be very stressed, had been viewing adult pornography on the computer, and sent pictures of himself naked to a woman he had known in Singapore. He had also wanted to engage with the mother in heightened sexual activity.
The evidence of Dr Q and Mr B has not left me in any doubt that Mr B loves the child, that there is a loving relationship between them, and he is concerned for the child’s welfare. Mr B has been seeking appropriate medical advice and assistance in trying to overcome his emotional issues.
Whilst Dr Q raised “the question” of whether “the rather bizarre disclosure [L] made about knives and forks in her bottom” may somehow or other be related to Mr B’s behaviour of cutting his penis with a knife, I have concluded that it is a quantum leap to progress from the latter disturbing episode to in effect link Mr B with some form of child sexual abuse or otherwise an activity that has led to the child’s reference to “knives and forks in her bottom”. Indeed, other than raising “the question”, no evidence of any substance was given by Dr Q to substantiate that possible linkage, nor was there other reliable evidence upon which I could make such a serious finding.
Of relevance is Dr Q’s opinion that “[L] is an extremely intelligent and very articulate child who is developing well” {emphasis added}.
Accepting as I do, Dr Q’s professional opinion regarding the pleasing development of the child, that opinion is obviously inconsistent with the child having been sexually abused or there having been conduct by the father or anyone else to the child which has been distressing to her in that context. They are obviously contradictory matters.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

This is a matter which I will refer to as part of my considerations set forth in the “conclusion” that follows.

Conclusion

It is convenient to first determine whether it is in the best interests of the child for the presumption of equal shared parental responsibility to be reflected in an order pursuant to s61DA.
I have concluded that I will make such an order, with the exception of one of the major issues in accordance with s4(1) namely, the health of the child. I will make an order whereby that major issue is the sole responsibility of the mother. The reasons are as follows.
The mother has acted responsibly in relation to the successive comments and/or statements made to her by the child suggestive of possible child sexual abuse by the father.
The mother has not over-reacted, and has facilitated continuing periods of time to be spent by the child with the father subject to subsequent interim orders that were made and has taken the child to medical practitioners for assessment at appropriate times. Indeed, the mother may well have been criticised for not doing so.
By contrast, the father has been dismissive of the expression of concerns by the mother to him in relation to the relevant statements by the child prior to the Queensland holiday in November 2005. I am not confident that the father would willingly join in with the mother in having the child consult with the appropriate medical practitioner or other health professional should a matter of possible seriousness be raised so far as the child’s emotional well-being is concerned. By that, I am not suggesting the mother take the child to such an expert on the slightest pretext.
In addition, I have made findings regarding the father’s manipulation of the child for the purpose of cementing his relationship with her in a way which hardly shows requisite maturity or responsibility.
With regard to one of the primary factual issues, namely whether or not there has been an unacceptable risk of child sexual abuse by the father, the High Court has held in M v M that, inter alia, in reference to tests for defining risks:
“the courts have endeavoured, in their efforts to protect the child’s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed that a court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.”[5]
[5] M v M (1998) FLC 91-979 at 77,081
Whilst various judgments of the Full Court of this Court have grappled with difficulties associated with “unacceptable risk” and associated different terminology used, I am bound to follow the test expressed by the High Court, as is the Full Court, until such time as the High Court provides a different test or legislation is introduced which overrides it.
The difficulties from a Court’s viewpoint are aptly analysed and commented upon in a recent article “Unacceptable risk – a return to basics” by a former senior judge of this Court, the Hon. J Fogarty AM.[6]
[6] “Unacceptable risk – a return to basics”, Hon. J Fogarty, AJFL, vol. 20 (No. 3) at 249
Essentially, the trial judge has to determine whether or not there is a risk of child sexual abuse and if so whether that risk is unacceptable.
I have concluded that a risk does exist but I am not satisfied there is an unacceptable risk. In approaching these difficult matters I must bear in mind the gravity of the allegations as such that I should be cautious in being satisfied on the balance of probabilities that the allegations have been established in view of s140(2)(a)-(c) of the Evidence Act 1995 (Cth).
As I have accepted the evidence of the mother that the statements in the nature of disclosures were made by the child, particularly the disclosure concerning touching during the November 2005 Queensland holiday, I find that the “risk” has been established. It is then a question of interpretation of the “risk” in the light of the balance of evidence in the face of the father’s denial for me to then conclude as to whether or not the “risk” is “unacceptable”.
I have accepted the evidence of Dr Q regarding the level of intelligence and articulation of the child and that fortunately she is a child who has developed well. The child’s progress at school has been good. There is no evidence of disturbing behaviour. The child has a loving relationship with the parties and other relevant adults.
I have accepted Dr Q’s conclusions that the disclosure by the child in terms of “knives and forks” to which earlier reference has been made and do not require reiteration are bizarre and not capable of rational explanation other than that the father has acted in that fashion, or the mother has coached or alienated the child, or that on some unexplained basis there is a linkage with Mr B’s concerning mental health issues and related actions that he has taken.
I accept Dr Q’s evidence that there is nothing of substance in terms of the father’s conduct that somehow or other can be linked to the child’s description to which I have referred.
I have made findings that on the balance of probabilities the mother has not engaged in coaching or alienating conduct and Mr B cannot be held responsible for the strange and unexplained descriptions given by the child of alleged physical abuse.
Consequently, I find that the issue of “unacceptable risk” in terms of possible abuse by the father of the child has not been established on the balance of probabilities.
The evidence of the mother, which I accept, is that the child appeared to be settling down more in terms of supervised periods of time that have been spent by her with the father as well as members of his extended family. The mother spoke complimentary about the father’s sister-in-law and also his brother, with some reservation about him being sufficiently objective in carrying out a supervisory role. The latter is understandable.
However, there is no doubt that members of the paternal family love the child and enjoy her spending time with all of them. It is not credible to contemplate that any of them would permit something untoward or harmful taking place so far as the child’s safety and health are concerned.
I have concluded that it is in the best interests of the child in terms of promoting her having a meaningful relationship with each of the parties consistent with one of the prime considerations in s60CC(2), that there be parenting orders made which reflect a graduated regime of periods of time to be spent by the child with the father, initially on a supervised basis and then leading to such periods being unsupervised. This will have the effect of maintaining stability and routine for the child to which she has been accustomed for some time with a gradual transition to longer periods on an unsupervised basis, as well as giving the mother an opportunity for her undoubted anxiety to be gradually reduced. The anxiety of the parent with whom a child primarily lives is a relevant matter to take into account and in this case I attach significant weight to it.[7]
[7] B and B (1993) FLC 92-357 at 79,780; R v C (Family Court of Australia, 25.06.1993, unreported)
In making parenting orders I am not required to only make orders that either party has sought. So much has been made clear by the High Court in U v U[8]. The basic reason is that s60CA makes it mandatory to only make parenting orders that are in the best interests of a child.
[8] U v U (2002) FLC 93-112
I will make an order which gives liberty to apply to set aside vary or suspend any of the parenting orders made this day on short notice. This should not be seen as an encouragement to litigate further but rather that should something develop which severely distresses the child then either party may initiate fresh proceedings without delay.
I also have considered that the graduated regime to which I have referred, lessens the possibility of further parenting proceedings being instituted for the reasons previously given.
I have made findings in respect of some manipulation of the child by the father. I am not confident that similar comments may be avoided by him or his brother, let alone other of the father’s family members. It is also important for the mother and Mr B to appreciate that adverse comment about the father or any of his relatives should not be made to or in the hearing of the child in relation to the evidence or findings that I have made, or on any other basis. Consequently, a non-denigration order will be made by me.
The time specified in the Orders for the commencement and conclusion of periods of time the child will spend with the father have taken into account the distance to be travelled between C and B. So far as those times are concerned, as well as the relevant periods or occasions the subject of these Orders, the parties will from time to time need to be flexible, sensitive and use commonsense. An order will be made which ensures that flexibility is open to them.
It is clear that the quality of communication that once existed needs to be restored, not only for the benefit of the parties but especially the child. Accordingly, orders in that regard sought by the independent children’s lawyer will be made.
I have reluctantly determined that an injunction will be granted restraining the mother from permitting Mr B from engaging in certain activities with the child which might otherwise be part of a normal household which includes a small child. That should not be seen as criticism of Mr B, but rather the reflection of a need to remove anxiety which the parties or either of them, may have due to Mr B’s past history of emotional issues, as well as a means of protecting him from any further insinuations or allegations.
The mother may use the liberty granted to apply for further orders for the purpose of seeking an order setting aside or varying the injunction upon presentation of appropriate evidence as she may be advised.

I certify that the preceding one hundred and thirty nine [139] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 22 December 2006

[2006] FamCA 1386

22 December 2006

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