Goylan & Anor & Durban

[2019] FCCA 992

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOYLAN & ANOR & DURBAN & ORS [2019] FCCA 992

Catchwords:
FAMILY LAW – Extraordinarily bitter parenting dispute between grandparents – maternal grandmother having been primary carer for child pursuant to Permanent Care Order made in 2016 – relationship with paternal grandparents breaking down – whether child made disclosures of abuse by paternal grandparents – whether disclosures true wholly or in part – maternal grandmother wholly convinced of truth of disclosures – disclosures in fact wholly untrue – change of residence recommended by family report writer and Independent Children’s Lawyer – orders made as sought by Independent Children’s Lawyer.

Legislation:

Evidence Act 1995, s.140

Family Law Act 1975, s.60CC

Cases cited:

Kimber v Owners Strata Plan No.48216 (No 2) [2018] FCAFC 58

Applicants: MS GOYLAN AND MR GOYLAN

First Respondent: MS DURBAN

Second Respondent: MR A GOYLAN

Third Respondent: MS B DURBAN

File Number: DGC 1000 of 2017

Judgment of: Judge Burchardt

Hearing dates: 12, 14, 15 and 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Dandenong

Delivered on: 6 May 2019

REPRESENTATION

Counsel for the Applicants: Ms Clarke

Solicitors for the Applicants: Portelli & Co

The First Respondent: No Appearance

The Second Respondent: In Person

The Third Respondent: In Person

Counsel for the Independent Children’s Lawyer: Mr Marchetti

Solicitors for the Independent Children’s Lawyer: Madison Branson Lawyers

Counsel for the Department of Health and Human Services: Mr Connolly

DRAFT ORDERS

1. Until further order the paternal grandparents have sole parental responsibility for the child [X] born … 2012.

2. The child live with the paternal grandparents.

3. The child spend time with the father supervised by the paternal grandparents or their nominee:

   (a)Each alternate weekend at times agreed between them.

4. The child shall not spend time or communicate with the maternal grandmother for 6 months following the making of these Orders.

5. The maternal grandmother is restrained by injunction from going to and/or remaining at the child’s school.

6. The paternal grandparents shall engage in non-reportable therapeutic family counselling with the child, to support her through the change in residence and to provide the paternal grandparents with guidance about how they can best support her.

7. The paternal grandparents have leave to provide to the following individuals copies of Dr A’s Assessments of themselves and the maternal grandmother and the family report in this matter:

   (a)The child’s GP as nominated by them.

   (b)Any counsellor, psychologist, social worker or related personal whom they engage in connection with the child’s emotional and/or psychological wellbeing.

8. The paternal grandparents, maternal grandparents, mother and father and their servants and/or agents are restrained by injunction from exposing the child, whether directly or indirectly to:

   (a)Family violence and/or conflict between any and all of the parties in the child’s presence, hearing or in a manner that comes to the child’s attention;

   (b)Negative views, opinions, abuse and/or denigration of the child’s family members and/or their friends;

   (c)Inappropriate adult discussions, including in relation to Court Proceedings and/or related matters;

   (d)Inappropriate questioning of the child in relation to allegations of sexual, physical, emotional and/or any other forms of abuse and/or harm;

   (e)Misuse of drugs and/or alcohol.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1000 of 2017

MS GOYLAN & MR GOYLAN

Applicants

And

MS DURBAN

First Respondent

MR A GOYLAN

Second Respondent

MS B DURBAN

Third Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of a young girl, [X], born on … 2012.  As counsel for the Independent Children’s Lawyer said in closing submissions, it has many features which can only be described as tragic.  The applicants, Mr and Mrs Goylan, seek that [X] live with them and that she spend no time with the third respondent, Ms B Durban, for some six months or so.  Ms Durban, the maternal grandmother, seeks that [X] live with her and spend no time at all with Mr and Mrs Goylan.  Mr A Goylan, who represented himself but contributed little to the proceedings, appears, from his evidence, to broadly support his parents’ application.

2. There are, in truth, three central issues in this proceeding.  First, have Mr and Mrs Goylan sexually, and otherwise, abused [X].  Secondly, if they have not, has [X] made disclosures to that effect.  Thirdly, if she has made those disclosures, what has caused her to do so?

3. The fourth and decisive matter, which is not of course a factual question as such, is what the Court should do in the light of the answers to the first three questions.

4. Given the intensity of the emotions that this case has given rise to, it is appropriate to answer the three questions I have just posited now.  First, in the light of all the evidence, there is no possible doubt in my mind that all the allegations made against Mr and Mrs Goylan as to their treatment of [X] are untrue.  They simply have never happened.

5. Second, there is no doubt, notwithstanding this fact, that [X] has from time to time made disclosures to Ms Durban, and to others, consistent with the allegations that Ms Durban puts forward.

6. The reason that [X] has made these disclosures is because Ms Durban, who is a naturally over-anxious person keenly attuned to such matters, has caused the child to create this false narrative.

7. Because Ms Durban is simply wholly unable to accept the innocence of Mr and Mrs Goylan, and will insist on reinforcing a false narrative to the child, very regrettably, it is quite clear that the orders sought by the Independent Children’s Lawyer and by Mr and Mrs Goylan should be made.  This will be a devastating outcome for Ms Durban and not in any way without difficulties for [X] but it is, in the ultimate, what I think is in her best interests.

Agreed or uncontroversial facts

1. Mr Goylan was born on … 1941.  He had a difficult upbringing but emerged from it unscathed.  He married Ms Goylan, born … 1944, in 1965.  They have two children:  Mr A Goylan, who is the father of [X]; and Ms B, who lives in London.

2. Mr A Goylan suffers from schizophrenia and has had, and appears to continue to have, difficulties with substance abuse.

3. Ms B Durban, the primary player in the proceeding, so to speak, for the other side, was born on … 1964.  She has five children, all daughters, including Ms Durban, who was born on … 1983, who is the mother of [X].  Some of those children were born to a father who was extremely violent and abusive and of whom Ms Durban remains, understandably on the materials as I appreciate them, terrified.

4. Subsequently, Ms Durban was in a relationship with Mr E for some years and he is the father of Ms Durban’s last two children Ms R and Ms BB.  They are separated but remain friendly. 

5. Ms Durban has a history of mental illness and substance abuse issues.  She has a son, [W], now almost 17, who has lived with Ms B Durban since he was four years old.

6. The inception and history of the relationship between Mr A Goylan and Ms Durban does not appear to me, despite the wealth of material in this case, to be described in any precise detail.  It is, however, known that between 2012 and 2015, the Department of Health and Human Services (“DHHS”) received 13 reports in relation to [X].

7. By February 2015, DHHS had received a notification alleging concerns that [X] was being neglected and exposed to drug and alcohol abuse by Ms Durban and her then-partner Mr F.  In March 2015, [X] made disclosures to Ms B Durban that Mr F was sexually abusing her.  She made some concerning disclosures to SOCIT and DHHS and the Department placed [X] in the care of Ms B Durban, with whom she has continued to live since that time. 

8. After protracted Children’s Court proceedings, on 25 July 2016 a Permanent Care Order was made, placing [X] with Ms B Durban but providing for time to be spent with Mr and Mrs Goylan on a regular basis.  By late November/early December 2016, the relationship between Mr and Mrs Goylan and Ms B Durban had become strained.  On 6 December 2016, the DHHS was notified as to further disclosures of physical and verbal abuse alleged against Mr and Mrs Goylan and threats that if [X] disclosed the abuse, she would never see Ms B Durban again.

9. On 12 December 2016, [X] was the subject of a Visual and Audio Recording of Evidence (“VARE”) interview (the CD of which is exhibit A2).  On 15 December 2016, Victoria Police executed a search warrant of the home of Mr and Mrs Goylan and removed their computer and other items in an endeavour to find corroborative material to support the allegations made against them.  [X] did not make a sufficient (if any) disclosure of sexual assault and no compromising material was found so the matter did not proceed to charges.

10. In April 2017, Mr and Mrs Goylan commenced these proceedings seeking time with [X].  On 6 July 2017, a section 11F series of interviews took place to which it will be necessary to return, and orders were ultimately made for supervised time to take place.  Additionally, Mr and Mrs Goylan were ordered to attend Dr A for psychosexual assessment reports.

11. Supervised time continued for a period but an endeavour to move to unsupervised time in February 2018 was disastrous.

12. Since that time, Ms B Durban has not complied with Court orders for the Goylans to spend time with [X] and, further, VARE recordings have been taken on 20 April 2018. 

13. It should be noted that the above, while relatively extensive, is merely a reflection of some of the facets of this disturbing proceeding.  Hopefully, they give some structure to what is to follow. 

14. It is appropriate to start with the various Family, DHHS and Psychiatric/Psychological Reports.

The section 11F report of Ms G

1. Ms G’s report commences by setting out the issues in dispute and in the light of the materials as a whole, her analysis of the disagreement between Mr and Mrs Goylan and Ms B Durban strikes me as being entirely accurate.  Ms G noted inter alia:

   “Ms B Durban presented to the Registry without [X].  She said she had previously telephoned the Court and was advised [X]’s presence during the CIC was not necessarily required.  According to Ms Durban, [X] would be traumatised by seeing Mr and Mrs Goylan.

   Once [X] arrived in the registry reception area, Ms B Durban was approached by this Family Consultant and was observed to be holding/nursing [X] tightly.  Ms B Durban explained (in [X]’s hearing) that Mr and Mrs Goylan had yelled ‘hello’ to [X] and that had caused [X] distress.  [X]’s hair was covering some of her face but she did not appear distressed.  Ms B Durban then picked [X] up and carried her into the activity room.  She stated [X] had wanted to be carried.  Ms B Durban considered Mr and Mrs Goylan were motivated to intimidate [X].”

2. Having made some observations as to Ms B Durban forgetting that information in the CIC was admissible and Ms Durban’s assertions that Mr and Mrs Goylan were dangerous people who had had her stalked and, otherwise, misconducted themselves, the report continued:

   “Ms B Durban presented as a person who suffers from anxiousness - specifically associated around her role as a carer to [X] and possibly relating to other areas in her life.  Ms B Durban was defensive throughout the interview process, she was passive aggressive and advised that she had contacted her barrister because she felt unfairly treated.”

3. At a further few dot points down, Ms G recorded:

   “According to Ms B Durban, [X] was having counselling with SECASA and was discharged from that service.  On advice from her own counsellor Ms B Durban had recently arranged for [X] to commence counselling at … Psychology.  Ms B Durban intended on obtaining a report for the purposes of the Court proceedings.  There seemed to be no clear presenting issue to necessitate the counselling.”

4. Having recorded salient points of her interview with Mr and Mrs Goylan, who denied all misconduct and made trenchant criticisms, themselves, of Ms B Durban, Ms G reported:

   “[X] (aged 5 yrs, 3 mths) was an attractive and engaging child.  She explained she had not visited her paternal grandparents for a long time and because of that did not like that they said hello to her.

   Initially, [X] became very tearful when asked about her paternal grandparents and she indicated she wanted to see Ms B Durban and “only” her.  [X] calmed down easily and provided contradictory messages about her paternal grandparents.  Whilst she explained that they “hurt me” she was unable to expand on this.  [X] described positive memories of her paternal grandparents and she indicated she considered her Nanna (Ms B Durban) would not be amenable to her spending time with them.

   It was concerning that [X] explained she loved Nanna Ms B Durban “the best” and she considered she was not permitted to love another family member/s as much as she does her maternal grandmother.  It appeared she wanted to preserve her maternal grandmother’s feeling of being the most important person in her life.”

5. Under the heading “Observations of [X] with Mr and Mrs Goylan”, the report continued:

   “A brief observation of [X] and Mr and Mrs Goylan was conducted.  [X] was sitting watching T.V. when her paternal grandparents entered the activity room and she promptly demonstrated her happiness to seeing them.  [X] smiled and responded to them with relaxed body language and excited conversation.  Mr Goylan and Mrs Goylan offered [X] physical space and it was [X] who approached them each for appropriate physical interaction.  The conversation was age appropriate and [X] explained how she had recently been trying to recollect the language… phrases her grandparents had taught her in the past.”

6. This response, apparently, did not surprise Ms Durban.

7. Under the heading “Future Directions”, Ms G, relevantly, asserted:

   “To date there is no information to collaborate the allegations of sexual abuse allegedly perpetrated by Mr and Mrs Goylan.  However should the Court deem that [X] is at risk of sexual abuse it is recommended that closely supervised time takes place.  It is also recommended that consideration be given to Mr and Mrs Goylan undergoing psychosexual assessment.

   Should the allegations against Mr and Mrs Goylan be malicious [X] is at risk of emotional and psychological abuse.  Supervised time may protect [X] from being primed to make further allegations against Mr and Mrs Goylan.  A period of supervised time with reports to the Court regarding this time may be of assistance when determining future spend time arrangements.”

The Department of Health and Human Services Report, 12 July 2017 (exhibit ICL1)

1. The report commences by setting out the all too numerous notifications to the Department commencing in 2012 and continuing , unfortunately, somewhat unabated, through to 2017.  I note that by February 2015, Ms B Durban:

   “… confirmed that she was assisting Ms Durban with the care of [X], and caring for her 5 days a week due to the Ms Durban’s drug use, mental health issues and her poor care of [X].”

2. The report also noted:

   “On 9^th March 2015 a further report was received with concerns that [X] had made disclosures of sexual abuse to Ms B Durban. The perpetrator was identified as Ms Durban’s partner Mr F, whom the mother met in late 2014 whilst both were inpatients at Suburb H Psychiatric Ward.”

3. The allegations were substantiated following investigation by SOCIT and on 25 July 2016, the Permanent Care Order in favour of Ms B Durban was made.

4. The report relevantly stated (Page 4):

   “… The DHHS assessed that Ms B Durban could provide a stable, long term placement and safe home environment, whereby all her needs were met, including her physical and emotional wellbeing and safety.”

5. The report noted:

   “On 6^th December 2016 a report was received at intake with allegations made that [X] disclosed that during a contact the paternal grandparents had ‘whacked her to the back of head’, ‘hurt her bum’, ‘banged her head’.  Further allegations made that [X] disclosed verbal abuse by the paternal grandparents calling her a ‘fucking idiot’.  SOCIT were informed of this report however no further action was taken as this was determined inappropriate discipline and not a criminal matter.  Report closed at intake with [X] safe in the care of Ms B Durban.

   On 12^th December 2016 a report was received with allegations that [X] had disclosed that the paternal grandparents had stuck fingers in her bottom when she was naked, that photos were taken and that photos of [X] were on their computer.  No further context or other clarifying detail was able to be provided in regards to the report.  Report was closed at Intake.  SOCIT were notified of the allegations and completed a VARE (Video Audio Recording Evidence) with [X] however there was insufficient evidence to proceed with the matter.

   On 10^th April 2017 a report was received raising concerns that Ms Durban was withholding contact with [X] from Ms Durban unless Ms Durban would attend the Federal Circuit Court hearing in support of Ms B Durban to prevent the paternal grandparents having contact with [X].  Report closed at Intake.

   On 24^th April 2017 a report was received with allegations that [X] had disclosed that the paternal grandparents has grabbed her by the throat and also choked her during a contact.  [X] allegedly imitated how the paternal grandparents grabbed her by the hair and ‘poked her inside the bottom’.  There was also allegations that Mr Goylan exposed himself to [X].  SOCIT were notified of the allegations and based on previous VARE with [X] (December 2016) in which she provided no information to support any allegations against the paternal grandparents, SOCIT were satisfied that no further action was required.  Child Protection and SOCIT both queried why [X] would make these disclosures at that time given Ms B Durban had been withholding contact from the paternal grandparents since approximately November, 2016.  Report closed at intake.

   On 1^st May 2017 a report was received raising concerns that [X] was not comfortable to make disclosures in previous investigations with Child Protection and SOCIT due to her not being comfortable in front of male professionals.  Also allegations were made that Mr A Goylan had been subject to inappropriate discipline as a child perpetrated by the paternal grandparents.  Report was closed at Intake.”

6. The report continued on page 5, relevantly, having noted that Mr and Mrs Goylan were to spend time with [X] pursuant to the terms of the Permanent Care Order:

   “On 9^th June 2017 Child Protection interviewed [X] at school.  [X] spoke fondly of the paternal grandparents and throughout the interview did not raise any concerns about her safety in their care.  [X] advised the writer that she would like to have contact with her paternal grandparents.

   On 9^th June 2017 follow up was conducted ‘South Eastern Centre Against Sexual Assault’ (SECASA) regarding [X]’s engagement with her counsellor Ms J.  [X] has attended 10 sessions in total with Ms J between 2016 and 2017 (in which time the DHHS has received 8 reports with concerns for [X]’s welfare).  [X] has made no disclosures of harm (physical or sexual) in any of these sessions and no concerns were raised about the contact she has with her paternal grandparents.  [X] was described to be a well-adapted, positive little girl and it was recommended that she cease sessions with Ms J.  It was recommended that there was no further role for SECASA and that it may be appropriate for [X] to re-engage in her early teens if required.”

1. The Report continues, relevantly:

   “On 3^rd July 2017 Child Protection met with Ms B Durban.  Ms B Durban acknowledges she has withheld contact from the paternal grandparents for approximately 6 months in breach of the Permanent Care Order.  Ms Durban justifies her decision as she believes the paternal grandparents have harmed [X] sexually (Mr and Mrs Goylan ‘poked [X] in the bottom’), physically (hitting [X] over the head; choking; inappropriate discipline), and emotionally (verbal abuse; swearing at her).  In regards to the concerns that Ms B Durban has about the paternal grandparents, Child Protection, SOCIT, and SECASA have never obtained disclosures from [X] which confirm any of the allegations against the paternal grandparents.”

2. On the following page, the report, which is authored by Ms K, someone to whom we shall return, asserts under the heading “Outcome”:

   “After reviewing [X]’s Child Protection file and conducting the investigation, the DHHS strongly recommend that contact between the paternal grandparents (Mr Goylan and Mrs Goylan) and [X] resumes as per the Permanent Care Order (PCO).

   There is a distinct pattern throughout [X]’s Child Protection file of the nature of concerns being reported regarding allegations towards the paternal grandparents however these concerns have not been shared by the DHHS.  Throughout previous involvements the paternal grandparents have been assessed as appropriate and suitable carers when having contact with [X].  The only concerns noted are in relation to the ongoing conflict between the maternal grandmother Ms B Durban and the paternal grandparents regarding contact.

   It is of particular concern to the DHHS that Ms B Durban continues to engage [X] in intrusive professional intervention in order to illicit a ‘disclosure’ from [X] which corroborates the allegations made against the paternal grandparents.  The DHHS is aware that Ms J (Counsellor - SECASA) advised Ms B Durban in May 2017 that it was not necessary for [X] to re commence counselling sessions as there was no indication of any sexual/physical harm in previous sessions and that continuing sessions was not in [X]’s best interests.  Despite this professional advice Ms Durban informed the writer that she was engaging [X] with a private psychologist (whom she was not willing to provide details of) as she was worried that if [X] did not disclose sexual/physical harm ‘enough to a professional’ then paternal grandparents may be entitled to have contact with [X] pending the upcoming Family Law Court hearing.  The DHHS has strong concern about the emotional impact this is having on [X] and the lack of insight Ms Durban has in relation to this.

   By withholding contact from the paternal grandparents, Ms Durban is neglecting to preserve [X]’s identity and connection to her birth family.  This is detrimental to [X]’s emotional wellbeing and against her wishes and is not assessed as in [X]’s best interests.  It is the recommendation of DHHS that [X] be allowed and supported in attending contact with the paternal grandparents.  The DHHS has no information at this time to suggest [X] is at risk of harm in the care of the paternal grandparents.  The DHHS will be recommending further assessments of the current placement if future reports are received which are of a similar nature which cannot be substantiated.”

The DHHS report, 12 October 2017 (exhibit ICL2)

1. The Department’s section 69ZW report is dated 12 October 2017.  Necessarily, much of it repeats matters in the July report.  I note that it repeated the concerns expressed above as to Ms B Durban’s intention to engage with further counselling, despite the advice of Ms J that continuing sessions were not in [X]’s best interest.  The report adds little but I note that at page 7:

   “On 20 June 2017 Child Protection were able to have a phone discussion with Mrs Goylan whom presented as very upset and felt failed by the DHHS for lack of intervention in regards to Ms B Durban withholding contact with [X] in breach of the Permanent Care Order.  Mrs Goylan feels helpless and ‘sick’ about the allegations that have been made about her and Mr Goylan.”

The DHHS report, 3 July 2018 (exhibit ICL5)

1. The report noted a new intake report on 14 March 2018.  It details:

   “Concerns raised regarding ongoing cumulative harm, risk of further re-trauma and emotional harm for [X] due to contact with the paternal grandparents who are alleged to have caused part harm re sexual abuse and re FLC Orders.  No new information however given [X] is reported to be having physical stress and trauma symptoms assessed by a GP further follow up to occur.”

2. On page 2, in relation to an Intake Report commencing 27 February 2018, the report continues:

   “Report due to concerns that [X] is showing indications of physical and emotional trauma as a result of having access with her paternal grandparents.  Recently the access was changed from supervised to unsupervised in the Family Law Court and the report indicates that [X] repeatedly indicates that she does not want contact, she has wet her pants during the last contact during which the PGP verbally abused [X]’s carer (MGM), and there are concerns that [X] continues to disclose possible sexual, physical and emotional abuse from the PGP.  The reporter does not believe that [X] has been “coached” to disclose.  Information also suggests that the PGP are requesting additional unsupervised contact with [X] in the future and there is a court hearing scheduled in August 2018.”

3. I note that some of the reports in this document are somewhat different in their terms to the description of the report of the same investigations in the earlier DHHS material.  In relation to the report covering the period 24/04/17–27/04/17, the reported various allegations made, relevantly, against Mr and Mrs Goylan and continued (this being not material in the earlier version):

   “It is assessed that [X] is not at significant risk of harm in her maternal grandmother’s care.  The concerns raised in relation to the paternal grandparents are historical and the maternal grandmother has ceased contact between [X] and the paternal grandparents.  The police were notified of the concerns and advised that no further action would be taken given that a disclosure interview was previously completed with [X] and she did not disclose this information.

   If a report was received in relation to the paternal grandparents having contact with [X] then Child Protection would have concerns as mentioned in the previous report and consideration be given to investigation.”

4. The previous report covers the period 05/04/17 – 19/04/17 and relevantly asserts:

   “It is apparent that there is conflict occurring between MGM Ms B Durban and PGP’s Mr and Ms Goylan regarding contact arrangements for 5 year old [X] with reported current FLC involvement.  Reports relating to this have started soon after [X] was placed in the permanent care of Ms B Durban by Child Protection in August 2016.

   [X] has experienced significant trauma in her life from the time of her birth with exposure to serious parental mental health issues, substance abuse and resulting neglect and likely sexual abuse.  Throughout extensive Child Protection involvement, Ms B Durban has been assessed as the one constant, stable and protective presence in [X]’s life since she was born due to her parent’s inability to adequately care for and protect her.

   After [X] had been in the permanent care of Ms B Durban for approximately three months, serious concerns have been raised for [X] in her PGP’s, Ms and Mr Goylan’s care that have not been investigated by Child Protection.  This has been due to Ms B Durban ceasing all contact and initiating FLC proceedings and hence being assessed as acting protectively by CP.  While police investigation has not resulted in charges against Mr and Ms Goylan, it is likely that Child Protection investigation would be required if [X] were to have unsupervised contact with Mr and Ms Goylan.  The concerns cannot be considered to be merely related to acrimony between extended family regarding [X]’s care arrangements given the independent observations of the child care centre regarding the changes in [X]’s behaviour upon returning from her PGP’s care is significant which gives validity to the concerns raised.”

5. It should be noted that this extract is markedly different in its tenor to the earlier reports prepared by Ms K.  It is apparent that the position of the Department had changed.  Indeed, the entire report rewrites the descriptions of earlier events, to which the author Ms L and her supervisor, Ms M were not a party, in terms more negatively expressed about Mr and Mrs Goylan.

6. Under the heading “Summary of current protective concerns and outcome”, the report relevantly indicates that:

   “… there is also a very conflictual relationship between the paternal grandparents and the maternal grandmother, Ms B Durban.  [X] was reported to present with physical and psychological symptoms of trauma which have been assessed by a doctor.  In relation to the ongoing concerns being raised for [X], it was assessed at the time of intake, that there was evidence of significant emotional and psychological cumulative harm impacting on [X] who was presenting as distressed with physical symptoms.  [X] was noted to be a very young child with lifelong experiences of trauma and likely attachment issues, which includes whilst in the care of her parents and since being in the primary care of the maternal grandmother.  Given the family history of mental health for the mother and father, [X] is also at significant risk of psychological developmental harm and future mental health issues, which is highly likely to be triggered by trauma in early childhood and cumulative harm.  It was also assessed at intake, given the family dynamics; [X] should also be free from exposure to adult conflict to ensure that [X] can have a safe and positive relationship with the maternal grandmother, parents and paternal grandparents.

   Child Protection workers Ms M and Ms L initially met with [X] unannounced at the maternal grandmother, Ms Durban’s home on April 6^th 2018.  [X] presented as a bright and happy child who would wander in and out of Ms M and Ms L’s company in the living room while an interview was being conducted with Ms Durban.  Ms Durban responded appropriately when [X] entered the room and concluded all conversations in regards to the reported concerns and Family Court.  Ms Durban informed workers of the disclosures [X] had made to her, as well as the incident at the park on February 18^th 2018, which resulted with police involvement and an interim IVO being made.

   Ms M and Ms L met with [X] shortly after speaking to Ms Durban.  Ms Durban was not present for [X]’s interview and Ms M and Ms L sat with [X] in her room, speaking with [X] while she was playing with her toys.  [X] immediately stated that workers were present to speak with her in regards to the paternal grandparents when asked why she thought Ms M and Ms L were present in her home.  [X] disclosed about an incident involving the paternal grandparents and stated that she feels better when someone is with her when she sees the paternal grandparents, however, at this moment in time she did not want contact.”

7. Having traversed interviews with [X]’s paternal grandparents and parents, the report continues:

   “Following a thorough file review and investigation, Child Protection have assessed that [X] is not at significant risk of harm in the paternal grandparents, Mr and Mrs Goylan’s care given she has had supervised contact since November 2016 and Mr A Goylan has attended at the majority of these visitations.  Based on [X]’s supervised visitations and the father being present at the majority of the visitations, it is highly unlikely that [X] has experienced any physical or sexual harm perpetrated by the paternal grandparents, however, Child Protection believe that [X] has experienced physical and/or sexual abuse during her young life from a male known to the family and Child Protection.

   Child Protection believe that it is in [X]’s best interests that neither the maternal grandmother, paternal grandparents, or parents, discuss such issues in future as Child Protection believe [X] has been exposed to numerous age inappropriate conversations.  [X] is clearly aware of the animosity and conflictual relationship between the adults in her life.”

8. The report went on to recommend a reintroduction of the paternal grandparents in a public place, together with family therapy. 

The DHHS report, 12 October 2018 (exhibit ICL6)

1. This report repeated the observation that [X] was not at significant risk of harm in the presence of the paternal grandparents.  I note that page 3 of the report observes (without any specific timeline):

   “Ms L and Ms M completed a home visit to Mr Frank and Mrs Goylan, where Mr and Mrs Goylan were advised that Child Protection do not support their application to have [X] placed in their care and that Child Protection would only be recommending supervised contact given [X]’s reactions to attempts to get to supervised contact of late, when Ms L and Ms M interview [X], her negative reaction and physical response to being asked questions about Mr and Mrs Goylan.  [X] appears to be having an increasingly negative reaction and this at times, presents as physical to attending contact with Mr and Mrs Goylan.  Child Protection observed [X]’s physical response, which was in the form of [X] putting her hands over her mouth and presenting as though she was going to vomit.  [X] also attempted on several occasions to avoid and redirect Ms M and Ms L’s topic of conversation in regards to contact with the paternal grandparents, such as asking the workers to look in different directions at things around the room.  It is of Child Protection’s view that [X] should not be forced to attend contact with Mr and Mrs Goylan and for there to be a considerable break and this to then be revisited in future.  [X] is only six years old and has given very clear instructions that she does not want to attend contact and this should be taken into consideration.

   Child Protection are of the view that [X] is getting lost in the different court arena’s and that Mr and Mrs Goylan are failing to put [X]’s best interests forward and respect her views and wishes at this moment in time.  Child Protection can NOT support [X] being placed out of Ms Durban’s care at any time.  [X] was officially placed with Ms Durban in 2015 following a Protection Application by Emergency Care.  Prior to this, [X] regularly resided with Ms Durban for short periods of time since birth and has a very positive and strong attachment to Ms Durban.  [X]’s half-brother, [W], also resides with Ms Durban and has done since age 20 months for like protective concerns in relation to the mother, Ms Durban.  If [X] was to be removed from this family situation this would be significant detrimental to her psychological and emotional state.”

2. The report went on to recommend a considerable break on contact and for time to be revisited in the future as per [X]’s wishes.  It also recommended that there be mediation to enable communication between the grandparents and that Ms N be the only person to discuss contact arrangements with the child.  The report concluded relevantly:

   “It should be noted that Child Protection feel that any plans in place for contact will most likely not occur due to the level of animosity between the grandparents, and this is why the above is recommended.  Child Protection believe in order for [X] to feel comfortable about contact with her paternal grandparents, there needs to be a significant positive shift in the relationship between the paternal grandparents and maternal grandmother.  As stated before, [X] is very much aware of the animosity in the relationships with the adults in her life and it has been assessed that for any progression of contact to occur, this needs to be addressed.”

The reports of Dr A - Mr Goylan

1. The report noted that Mr Goylan was a 76 year old man who was psychosexually evaluated in the context of Family Law proceedings.  At page 14 of 32, of Dr A’s affidavit filed 14 February 2018, the report records:

   “Mr Goylan presented as friendly and outgoing.  He presents as in reasonably good health although there is some indication of memory difficulties from his presentation and he raised this issue in the early part of the evaluation.  … He was somewhat emotional in discussing issues involving his granddaughter and the allegations, but not unusually so.”

2. As earlier indicated, Mr Goylan had a difficult early life but the report noted that he had coped with this.  Unsurprisingly, Mr Goylan’s history of the matter was consistent with his position in the Court case.  Dr A conducted the Paulhus Deception Scale (PDS) test and I note that at page 23 of 32, Dr A reported:

   “Overall, this is a profile which shows some tendency of the individual towards impression management and self deceptive enhancement, potentially reducing the overall substantive scales.  Apart from this issue, there was an elevation on introversion, suggesting the individual is not particularly outgoing.  There

   
   

   is some interpersonal passivity.  It is notable that the positive impression management and self deceptive enhancement do not fit with the clinical presentation, but they do fit with the PDS.”

3. Dr A also applied the Family Strengths and Needs Assessment Tool.  This produced a risk rating of low.  At page 28 of 32, Dr A sets out a synopsis of sexual violence history, noting the allegations that Mr Goylan and his wife had abused their granddaughter, [X], but that there was no evidence to support the allegations.  At page 30 of 32, in his summary Dr A opined:

   “33.  Mr Goylan was evaluated in the context of allegations of sexual offending against his granddaughter who is now aged 5 years.  There is no evidence that supports the allegations.  There are concerns associated with the veracity of the allegations.

   34.  In the RSVP, there are allegations only and so no sexual violence history.  Across the evaluation, Psychological Adjustment is not problematic, Mental Disorder is not present, Social Adjustment is non-problematic and Manageability is non-problematic.

   35.  There was no indication of the risk of sexual violence based on the RSVP evaluation.  Psychosexual risk is determined as Low.”

4. On page 31 of 32 under the heading “Conclusions”, the report concluded:

   “39.  Psychosexual evaluation revealed no risk factors that would be of concern and Mr Goylan is rated as having Low psychosexual risk.

   40.  This evaluation identified that Mr Goylan should be afforded normal time based on a historical close relationship with the grandchild.  There is no requirement for supervision.  He and his could undertake full time care of the child if so requested.”

The report of Dr A - Mrs Goylan

1. At page 14 of 29 of his affidavit filed 14 February 2018 in respect of Mrs Goylan, under the heading “Presentation”, Dr A recorded:

   “3.    Mrs Goylan is a 72-year-old woman who presented as very emotional.  She was talkative.  She had cognitive difficulties to some degree.  She was conservative.  She reported that she has been struggling with Multiple Sclerosis for some years.”

2. At page 15 of 29, having noted allegations of sexual abuse against Ms Durban’s partner and Mr Goylan, the report continued:

   “8.    Mrs Goylan reported that the maternal grandmother is a public servant and was sexually abused as a teenager, as was the mother of the child.

   9.    From Mrs Goylan’s perspective, the maternal grandmother was preventing time with them as they were spending time with the child for four hours once a week and the maternal grandmother then got a permanent care order.”

3. On the same page at paragraph 11, the report recorded:

   “11.  The allegations regarding the grandparents were as follows:

   a.  That they poked their fingers into the child’s bottom;

   b.  She goes around on all fours and they take photos of her;

   c.  The fat neighbour takes photos;

   d.  They put her on the balcony and tell her to jump off the balcony;

   e.  They have their hands around her neck and choke her;

   f.   They throw her on the bed and the neighbours play with her vagina.

   12.  SOCIT found nothing at their place and they took everything and returned everything after examination.  [X] disclosed nothing and had ten sessions with SECASA and she was taken to a private psychologist.  They did not see the child unsupervised.

   13.  Mrs Goylan reported that they did not see the child for seven months and despite this and the child’s age, the child remembered them and hugged and kissed the grandparents.”

1. At page 16 of 29, the report noted:

   “21.  Mrs Goylan has no mental health condition.  She has not had a mental health condition over her lifetime.  Her personality is well functioning and she presents as a person with sound psychological defences.  She uses humour appropriately.  She is not impulsive and there is no history of antisocial activity or other activities which would raise concerns about her impulsiveness.  She presented with some positive impression management.”

2. Under the heading “Clinical Considerations” on page 22 of 29, Dr A reported:

   “Overall, this is a non problematic profile.  It should be noted that the MMPI validity scores correlate with the PDS scores to some degree.”

3. On page 23 of 29, under the heading “Synopsis of Sexual Violence History”, the report noted:

   “There have been allegations from the maternal grandmother in this case that Mrs Goylan, along with her husband Mr Goylan, have sexually abused her granddaughter, with allegations of sexual touch and penetration.  There is no evidence of these allegations as such.  There have been no charges laid.  The allegations against Mrs Goylan and her husband are extreme and somewhat bizarre.  They have not been validated by DHHS involvement.  The accounts of the alleged sexual violence are extreme, and it would be expected that the child and the abuse would have been made obvious to outsiders.”

4. Under the heading “Summary”, on page 26 of 29, the report continues:

   “31.  On the RSVP, based on the information available including psychosexual evaluation in interview, Mrs Goylan was found to have no psychosexual risk and the chances of her offending sexually, are Low.

   32.  Realistically based on norms associated with women offending against children, the chances of Mrs Goylan offending are insignificant.”

5. The report went on to opine under the heading “Conclusions”, on page 28 of 29, that:

   “43.  Mrs Goylan should be able to have open and appropriate time with the child.  She would be in a position of caring for the child on a full time basis.”

Dr A’s report - Ms B Durban (exhibit ICL3)

1. Having noted the limitations arising from the fact that Ms Durban’s report was evaluated in the context of Legal Aid funding, Dr A observed at page 7 of the report, under the heading “Presentation”:

   “2.    Ms B Durban is a 53-year-old woman who presented as over inclusive.  She was extremely anxious.  I note that she has provided a range of other materials following the evaluation as she felt there was not enough time to discuss aspects of her life or relationships.

   3.    I note that Ms Durban was evaluated over a period of almost two hours.  She spoke in an anxious fashion throughout the evaluation.  She spoke negatively about the paternal grandparents throughout.”

2. Unsurprisingly, much of what Dr A records reflects materials already described.  I note that the first allegation of abuse occurred when [X] was three years old and was apparently perpetrated by Mr F.  At paragraphs 14 to 16, the report records:

   “14.  Subsequently Ms Durban was referred to a psychologist Ms N in Suburb P, and she has seen her from June 2017 onwards.  The matter has been back to Court, within the Family Court.  Ms Durban stated that she believes that [X] has been abused by the grandparents.  Her account is that when [X] has contact with the grandparents, her behaviour changes.  Additionally, she stated that “as she becomes older, she says more”.  Ms Durban stated that she will talk about why the grandparents hurt her and why they poked her in the bottom and she prays at night for them not to hurt her again.  Ms Durban stated that she has played out the poking in the bottom scenario with Barbies and a friend.  Ms Durban stated that [X] does not like purple as that is the nanna’s favour colour.  Ms Durban stated that [X] will speak about why the grandparents hurt her. 

   15.  There have been further disclosures.  Ms Durban stated that the child disclosed that the grandparents took pictures

   
   

   of her being poked in the bottom and then they played it on television and then got people to watch and the child named [DD], Mr Y and two dogs and those individuals came over and took pictures of them poking her in the bottom.  She spoke of

   
   

   a camera and the grandmother taking pictures.  She says they took her into the basement which Ms Durban indicated means the garage.  Additionally, Ms Durban reported that the grandparents sticky taped [X]’s mouth so that she would shut up.

   16.  Ms Durban’s account is that she believes the child’s statements that these events occurred.  She believes that there should not be unsupervised or supervised time as the child

   
   

   is unable to get over the scars.  She believes the grandparents were abusive with her own son and that he has scars from having a fire poker put on him and that he was dragged into the bed in the middle of the night.”

3. Under the heading “Other Issues”, relevantly, Dr A recorded:

   “… She spoke of becoming a victim with her first partner and being re-victimised by the family report writer who she described as unprofessional.  She spoke of feeling judged and she felt that others were biased, speaking about the family report writers and clinicians.  Her account is that Ms Durban is now suicidal.  She spoke of her whole life focusing on the grandchildren and children.”

4. At paragraph 21 on Page 10 of the report, Dr A recorded:

   “As indicated, Ms Durban reported a neglectful and abusive childhood where she was physically abused and she described problematic attachment with her mother in particular.  Her account is that her first partner was charged with rape and found guilty and tried to murder her and the children, and that she was shot and stabbed by him and that the children were in the car.  She reported having treatment and counselling via

   
   

   a women’s refuge for a period of five years.  She reported that she still has gun pellet marks on her shoulder and a scar from the stabbing.”

5. At paragraph 26 on the same page, Dr A opined:

   “Ms Durban has likely been affected by her early experiences of neglect, and that these experiences have shaped her personality, and these issues have been affected by her relationship and other traumas.”

6. Under the heading “Conclusions” on page 13, Dr A reported, relevantly:

   “33.  Ms Durban, although she has no formal disorder, has personality issues related to her life experiences that are likely to have influenced her perceptions, including regarding the current matter.

   34.  My understanding is that Ms Durban has reported in December 2016 that [X] made disclosures that the paternal grandparents, Ms Goylan and Mr Goylan, sexually abused [X].  Ms Durban’s account is that the child made a series

   
   

   of statements that she was being hit by the paternal grandparents, that they poked her in the bottom, that they subsequently then took pictures of [X] being poked in the bottom and played these pictures on television and invited people over to watch on television and that they took her into the basement and they sticky taped her mouth so that she would not speak.

   35.  I note that Ms Durban is of the view the child’s alleged statements should be accepted as evidence of the grandparents’ abuse of the child, and she perceives the paternal grandparents as a dangerous factor and believes that the child should not have contact with them.

   36.  In this matter, there is clearly complexity associated with the need for a complete analysis of the child’s statements and the context of the evaluations that should be separated from the individual evaluations of the grandparents and Ms Durban. Nevertheless, the statements, which were reported to have been said by the child, raised concerns with respect to their veracity. Nevertheless, it is accepted that Ms Durban has taken

   
   

   on board the child’s statements literally.  It is likely that she has done so in part, due to her own background of experiences

   
   

   in life, and potentially for other reasons, related to her views

   
   

   of the grandparents.

   37.  A broader analysis is required but nevertheless, it is inevitable in such matters that there should be serious questions asked about the child’s statements and it is recommended there is a more general review of the sexual abuse allegations in this matter.”

The Family Report of Ms Q

1. Ms Q’s report commences with a lengthy and, in my view, balanced and fair overview of the history of the matter taken from the various materials.  She traversed the positions of the parties and the risk factors asserted in the materials and the history of DHHS and SOCIT intervention.  She noted the report of Ms N and at paragraph 41 opined:

   “Ms. N, a Psychologist prepared a report dated 5 December 2017.  She was engaged by Ms. B Durban.  Her report appeared skewed as she offered recommendations and opinions based on information provided to her by Ms B Durban and meetings with [X], and a reading of the CIC report.  It is unclear if Ms. Durban obtained the Court’s permission to share the CIC report with Ms N.  Ms N did not meet the paternal grandparents, but offered her “informed opinion” that [X] would be at significant risk of further abuse if she spends unsupervised time with Mr. and Mrs. Goylan.”

2. Ms Q had also earlier, at paragraph 40, noted a report from the Family Contact Service, Point Cook, Victoria, to which I shall return. 

3. At paragraph 44, Ms Q observed:

   “The relationship between the paternal grandparents and Ms B Durban appears to have broken down completely and there is no direct communication between them due to the events that have unfolded.  The paternal grandparents are very upset, and perceive that Ms B Durban deliberately went about discrediting them and used her position as a public servant to make malicious allegations against them and cause them significant stress, anguish and financial costs.”

4. At paragraph 48 and following, Ms Q recorded her interview with Ms B Durban.  There was a bump right at the start because Ms Durban wanted Mr E to attend, but this was not possible because this had not been pre-indicated.  I note that, subsequently, Mr and Mrs Goylan stated that they would have objected to Mr E being present due to concerns about his character, as he has an alleged criminal record (something that, in my view, there is nothing

   
   

   to support).

5. At paragraph 49, Ms Q recorded:

   “Ms. Durban presented as being extremely anxious, jittery, and defensive during her interview.  As soon as she entered the writer’s office, she launched into complaints about the CIC family consultant.  She alleged that the family consultant was rude, aggressive, and unprofessional to her, and that her behaviour was witnessed by Mr. E.  She said she was feeling very anxious about her meeting with this writer due to her experiences with the CIC family consultant, and this was her reason for wanting to have Mr. E present during the interview.”

6. At paragraphs 50-52, the report continued:

   “She was asked whether her position had shifted with regards to [X]’s future relationship with her paternal grandparents given that the investigations by DHHS and SOCIT did not corroborate her allegations of abuse.  Ms Durban responded that she continues to maintain concerns for [X]’s safety in the care of the paternal grandparents and repeated the abuse allegations detailed in her affidavit.  She said, “[X] clearly said she was poked in the bum” and made the disclosure not just to her, but also to Ms R.  She explained that [X] did not make disclosures to SOCIT because she was interviewed by  3 men.  However, she acknowledged that [X] did not make any disclosures of abuse to the female SECASA counsellor.  She said, “ever since [X] made disclosures, I have felt like no one has listened to her”.  She also said she feels nobody believes her.  She said she believes the disclosures [X] made to her that the paternal grandparents molested her and took photographs of her.  She said Ms N also believes that [X] was abused by her paternal grandparents and that

   
   

   she would be at risk if she spent unsupervised time with them.  She said she would be devastated if the Judge made orders for unsupervised time between [X] and her paternal grandparents.

   51.  When questioned why she took [X] to Ms N against the advice of DHHS and the SECASA counsellor, she responded that DHHS did not advise her not to take [X] to another counsellor.  She said she took [X] to Ms AA (unclear when) after the SECASA involvement ceased.  She shifted the focus of the question and complained that after DHHS interviewed [X] at her school, “[X] has been ostracised by other mums”.

   52.    She was asked to explain the incongruence between the observations of independent assessors including the Family Contact Service and CIC family consultant that [X] interacted positively with her paternal grandparents and her belief that [X] will be traumatised by seeing the paternal grandparents.  She said, “[X] is comfortable with her paternal grandparents with Ms X from the Contact Service because Ms X makes her feel safe” but did not offer similar validation for the CIC family consultant.”

7. I note that when Ms Durban was interviewed, it was reported at paragraph 61 that:

   “She reported that the paternal grandparents and her mother never got along since [X] was born.  She said there was rivalry between them over their relationship with [X], particularly in the last 3 years.”

8. I note that Ms Durban indicated that she was sexually abused by her father when she was about four years old and that her mother had discovered this following a disclosure.  At paragraph 64, the report noted:

   “… She said, “sometimes I think my mother is saying the same things happened to [X] as what happened to me when I was the same age”.  She also said similar allegations were made by her mother against Mr. Mr F as what happened to her as a child.”

9. I note that Ms Durban’s position appears to be that Mr F had probably not abused the child.

10. When Mr A Goylan was interviewed, the report recorded at paragraph 74:

    “After the permanent care order was made, he began spending time with [X] at his parents’ home when they spent time with her.  He said he has never witnessed any abuse of [X] by his parents when he was there.  He said, “there is a lot of lies and deceit going on here” and does not believe the allegations that his parents have abused [X].  He said the allegations “have destroyed and affected my parents’ health”.  He said he advised his parents not to initiate family law proceedings, but they felt very strongly that [X] is being harmed by these unfounded allegations.  He stated that if his parents are successful in obtaining unsupervised time with [X], he wishes to spend time with her at his parents’ home.”

11. At paragraph 77, the report continued:

    “He was asked to respond to claims from Ms B Durban that he was abused by his parents as a child.  He said, “they sometimes disciplined us with an open hand to the head” but does not consider they were abusive.”

12. At paragraph 79, Ms Q recorded her interview with the Goylans.  The report states:

    “Mrs. Goylan was the main spokesperson during the interview. She appeared very distraught at times as she spoke about the various child abuse accusations levelled against them by Ms B Durban.  Mr. Goylan impressed as a stoic man, who maintained a calm demeanour throughout.”

13. It should be noted, as I think indicated previously, that Mrs Goylan is not shy in making lurid assertion of allegations about Ms B Durban and those in her camp.  At paragraph 86, Ms Q recorded that Mrs Goylan accused Mr E of having a criminal record and surmising whether he had sexually abused [X] and whether he and Ms B Durban were covering this up by pointing the finger at them.  I note that at paragraph 87, Mrs Goylan expressed the opinion that people who make false allegations should be punished, clearly a reference to Ms B Durban.

14. At paragraphs 91 and following, Ms Q recorded her observations with [X].  The report says:

    “[X] (aged 5 years) presented as a pretty and lively child, who settled quickly for her separate interview with the writer with support from her mother (Ms Durban).  In the presence of Ms Durban, the writer asked [X], “Did your Nanna Ms B Durban explain why you are here?” and she replied, “Yes, she said I have to tell you about Nonno and Nanna”.  The writer responded, “What if I wish to talk to about other things, would that be okay?” and she indicated that would be okay.”

15. Having described her family (which included the Goylans) and having a good relationship with Nanna Ms B Durban and [W] and Papa Mr E, the report noted at paragraph 95:

    “95.  … When asked to describe her Nanna and Nonno she appeared conflicted about them.  She told the writer, “my whole family is upset because they don’t want me to see Nonno and Nanna”.  When asked, “How does Nanna Ms B Durban get along with Nonno and Nanna? she said, “they don’t get along because Nonno and Nanna hurt me”.  When asked, “how did they hurt you?” she said, “they stick their finger up my bottom”.  She was unable to give any context around these statements and these statements could easily have been rehearsed. 

    96.  When asked if anything about her family makes her feel angry, she said, “sometimes the people in my family swear” and “I had to say, Nanna a 5 year old is in the house”.”

16. It should be noted that Nanna is Ms B Durban.

17. I note that at paragraph 97, having recorded material answers provided by [X], Ms Q opined, “This suggests that the maternal adults discuss adult issues within her hearing”, a finding with which I entirely concur.

18. Notwithstanding her earlier expressed views, [X] agreed to greet the Goylans.  The report continues at 99:

    “[X] smiled when she saw her paternal grandparents, and appeared happy to see them.  Both grandparents greeted her lovingly and appeared happy to see her.  She approached her paternal grandfather first and he greeted her with a hug and they shared spontaneous casual conversation.”

19. The report goes on to detail perfectly satisfactory and unremarkable, enjoyable interaction between [X] and Mr and Mrs Goylan.  This is illustrated best, perhaps, in paragraph 102 which relevantly reads:

    “[X] appeared relaxed in the company of her paternal grandparents and interacted positively and comfortably with them.”

20. At paragraph 104, Ms Q opined:

    “The observations did not give rise to concern that [X] was uneasy or traumatised in the company of her paternal grandparents.  In fact, she was uninhibited and interacted freely and easily with her paternal grandparents.”

21. In the “Evaluation and Recommendations” section of the report, Ms Q said at paragraphs 110-111:

    “110.     [X] was observed with her paternal grandparents by a CIC family consultant, a Family Contact Service and by this writer at different times.  There were similarities to the observations made, in that [X] did not display apprehension in the company of her paternal grandparents and interacted positively and affectionately with them.  It is acknowledged that [X] told the CIC family consultant and this writer that her paternal grandparents hurt her but did not expand on this statement to provide any context to it.  It is highly probable that she was coached by her maternal grandmother to make the statement.  When asked by this writer whether her maternal grandmother explained why she was meeting this writer, [X] said, “Yes, she said I have to tell you about Nonno and Nanna”.  This suggests that the maternal grandmother had spoken to the child about the paternal grandparents before bringing her to the interview.

    111.     This writer is concerned that Ms B Durban continues to hold rigidly to her belief that [X] was abused by her paternal grandparents and is influencing [X] to repeat statements of abuse to prevent the paternal grandparents from obtaining unsupervised time with [X].”

22. Having noted Ms Q’s evaluations of Mr and Mrs Goylan, the report continues at paragraphs 114-115:

    “114.     The writer is very concerned that Ms B Durban and members of her household are placing pressure on [X] not to see her paternal grandparents.  This removes any confidence we can have about the ability of Ms B Durban and her family to support a positive and ongoing relationship between [X] and her paternal grandparents.

    115.     In the writer’s opinion, unless. Ms B Durban can change her behaviour of repeatedly influencing [X] to make statements of abuse to professionals, [X] could be at risk of significant psychological harm if she continues to live with Ms B Durban.”

1. Ms Q went on to recommend a forensic examination of Ms B Durban by Dr A (which occurred, and I have traversed above) and recommended unsupervised time.  At paragraph 119, the report asserts:

   “If the Court determines that Ms B Durban is unable to comply with orders made, it is recommended that consideration be given for [X] to be placed in the full time care of her paternal grandparents.  If this happens, [X] and her paternal grandparents will require therapeutic support and assistance to address problems that arise.  If a change to [X]’s living arrangements occurs, it is recommended that a moratorium be placed on Ms B Durban having any type of contact or communication with the child for a period of time (6 to 12 months) to ensure that her new living arrangements are not undermined while the child is settling in her new arrangements.”

The affidavit of Ms S

1. Ms S is the person who supervised time between Mr and Mrs Goylan and [X] between October 2017 and February 2018.  I note that even on the first visit on 14 October 2017, Ms S recorded:

   “[X] presented as a happy child who appeared to be well prepared to attend contact where she understood she would play and see her paternal grandparents, Nanna (Ms Goylan) and Nonno (Mr Goylan).”

2. I note that even on 25 November 2017 when [X] was very clingy at the commencement of time, clinging to Ms Durban’s legs and burying her face into her, she was not unhappy.  The time she spent with Mr and Mrs Goylan on that day was quite unremarkable.  None of the observations in Ms S’s report suggest any difficulties of interaction between [X] and Mr and Mrs Goylan, whatsoever.

The report of Ms N

1. Ms N’s report was not independently filed, but it constitutes annexure D11 to Ms B Durban’s trial affidavit.  The report runs to some 33 pages in total.  It comprises an initial Confidential Report from pages 1 to 9.  There is an appendix A, a transcript of counselling notes which runs to page 14.  There is then a Confidential Psychological Report from pages 15 to 21, a further Confidential Report dated 5 December 2017 from pages 22 to 28 and an Addendum Report from page 30 to 33.  It is readily apparent that this is perhaps not a particularly well-structured report for the Court.

2. I note that the referral came from Dr O of the Suburb P Medical Group.  The first part of the report gives Ms N’s qualifications.  Under the heading “Purpose of Evaluation” on page 3 of the report, it is stated:

   ·To review proceedings to date and summarise events from [X]’s perspective.

   ·To support [X] and her right to be heard, to have freedom from abuse, violence and neglect and to feel safe.

   ·To provide opinion and management of [X]’s distress and provide recommendations for further management.

3. An extensive background and history is set out.  I do not propose to traverse this in detail, as it speaks for itself.  It is readily apparent that Ms N obtained much of her history from Ms B Durban and she adopts it in a number of obviously partisan ways.  When describing the initial CIC interview with Ms G, the report notes:

   “… Ms Durban reported that the family consultant had gained access to her LEAP file outlining how she had been a victim of an horrific crime thirty years ago which contrary to best practice caused considerable distress to Ms Durban and her daughters who had been unaware of the crime which involved their father.” (Page 4).

4. Ms N opined on the same page:

   “After questioning Ms Durban about her abuse, the family consultant described Ms Durban as a person who suffers from anxiousness, specifically associated around her role as a carer to [X].  Ms Durban’s privacy had just been exposed and

   
   

   a traumatic event occurring 30 years ago used as ammunition against her.”

5. It should be noted that this assertion, clearly vividly advanced by Ms Durban to Ms N, was denied by Ms G.  For reasons I shall come to, I accept that denial.  It is entirely apparent that Ms N has accepted, without any form of qualification, everything that Ms B Durban has said to her.  Ms N’s report is unrestrained in its criticism of Ms G’s interview.  At page 5 of the report when dealing with the matter, she wrote:

   “While Ms Durban’s life was exposed, there was no indication that the same diligence to investigate the Goylan’s background was performed.  The subsequent report listed many negative assumptions about Ms Durban.  Rather than holding the child in mind and being worried about how and why she could have made up these allegations, what is going on for this child that has triggered these disclosures.  Rather than trying to determine what may have been done to upset her, it appeared as if the reaction was instead a smear campaign against Ms Durban where [X]’s interest, fears or emotional state were not considered.”

6. That grossly distorted analysis of Ms G’s report speaks for itself.

7. It has to be said that, read objectively in the light of all the materials filed in this case, the report suggests that Ms N has been completely partisan from the start.  I note, however, that at page 8, Ms N reported:

   “Developing mouth ulcers and stomach problems prior to scheduled access, wetting her pants at the park during an attempted changeover and repeatedly saying that she doesn’t feel safe at her grandparents house are clear indicators that [X] needs a break from the pressure in order to heal.  It would not be in her best interest to be forced to go with her paternal grandparents against her will.”

8. Ms N made comprehensive recommendations against any time between [X] and the grandparents.

9. I note that these latter references refer to entries in the counselling notes made, it would seem, on 2 March 2018.  This followed the disastrous incident at the park in February 2018 which I shall come to.  I note, however, though these purport to be counselling notes for [X], that on 2 March 2018, in the midst of a recitation made by [X], the notes say:

   “Ms Durban reported that Mrs Goylan became agitated saying “we won, You lost” and that she was circling [X] and getting close to her face.  The situation escalated to the point that [X]’s Maternal Grandfather who was watching from his car, called the police to intervened.”

10. Ms Durban was obviously present during this session.

11. It is plain from the clinical notes that [X] has continued to discuss the questions of the matter of her treatment by Mr and Mrs Goylan on an ongoing basis in sessions throughout 2018.

12. I note that at page 14 of the report in the transcript of an interview on

    
    

    2 March 2018, in response to a question, “What if your dad was there, would that be better?”, [X] responded, “Yep, but the courts aren’t letting my dad go in there, the courts, theyre not going to let him and the court said to the grandparents they’re not allowed to go in the car and they did, is definitely break the rules.”

13. It is quite plain that this child is grossly overinvolved by the maternal family in the Court proceedings.  I note that even during this interview, at page 14, [X] appears to record that she was prepared to see the Goylans if it was at the play centre with supervision.

14. The Addendum Report dated 26 April 2018 is said to be “DHS requested an updated report post court ordered unsupervised access with Paternal Grand Parents”. (Page 30).  The report traversed a letter from Dr O dated 2 March 2018 and roundly supports Ms B Durban at every turn.  I note that on page 32 of the report, Ms N asserts:

    “Ms Durban has kept me up to date with the family court processes and it appears as though there has been some bias in the Goylan’s favour.  While Ms Durban’s background was investigated and incidents occurring 30 years ago raised, Mrs Goylan’s mental health and parenting history were not.  Mr A Goylan has scars due to the physical abuse he endured as a child and Mrs Goylan has a lengthy psychiatric history.”

15. It should be noted that Mr A Goylan does not have any scars arising out of his childhood and that Mrs Goylan does not have a lengthy psychiatric history.  The report concludes:

    “It is my informed opinion that [X] was not coached to make false allegations and that Mr and Mrs Goylan pose an unacceptable risk to [X].  I agree with Dr O that her distress was caused by contact with Mr and Mrs Goylan and believe that no contact would be in [X]’s best interest.  I also strongly recommend further investigation into the risk Mrs Goylan has caused by inciting Mr F to act violently towards Ms Durban and her intentions in hunting down and contacting other family members.”

The letter from Dr O

1. This letter dated 14 March 2018 is annexure D12 to Ms B Durban’s trial affidavit.  It is addressed to the Department of Health and Human Services, I note that Dr O was concerned at the effects on the child of seeing her grandparents.  He was concerned that there appeared to be:

   “an escalation at present in her emotional distress which is severe enough to be causing physical symptoms such as mouth ulcers, poor and very restless sleep (witnessed by many family members) and abdominal pain. 

   This seems to have occurred after a recent visit with her grandparents (paternal) which apparently led to [X] protesting and refusing to see them.  I understand that the police were called due to the extent of her distress and that it was around court ordered custody.

   I am aware that there are many allegations at present about her suffering harm in the custody of her paternal grandparents.  I am also aware that custody issues are not settled, but it seems fairly clear that [X] feels threatened by her paternal grandparents, and is certainly emotionally distressed and now physically stressed after this recent visit.  I have asked her directly after this visit about her own thoughts and concerns.  She explicitly stated she did not want to be in her paternal grandparent’s presence, and repetitively said she refused to back to see them again.  Indeed, her distress escalated even mentioning visiting her grandparents again.  I understand that her treating psychologist has also documented her concerns

   
   

   in this regard.

   In my experience with [X] over the last few months as her GP, she has not previously presented to me as emotionally distressed or even physically ill with such symptoms.  Therefore I don’t feel this reaction/stress response can be seen as usual for her, disregarded or minimised.  It clearly indicates that she is considerably unsettled around issues of custody or contact with paternal grandparents.

   It seems prudent that [X]’s concerns be taken on their merits, and that people in positions of power who can determine her custody are fully aware of this episode and the effects it has had on her mental and physical health.”

2. Clearly, that last reference is a reference to the Court.  It should be noted, however, that it would appear that there was no emotional distress or physical symptoms over many months leading up until March.  The tenor of Dr O’s report is that these distresses were matters of recent moment.

The parties’ affidavits

1. I have, of course, read the file carefully.  I have regard to all the affidavit material filed, although self-evidently I do not propose to mention all of it.  It is perhaps sufficient for present purposes to note that both sides in this dispute have not been shy to make serious allegations or slow to construe conspiracy theories about the other.  On Ms Durban’s part, there are lurid assertions to the general effect that Mr and Mrs Goylan abused not only their son but their daughter.  On the part of Mr and Mrs Goylan, particularly Mrs Goylan, there is a strong tendency to demonise Ms B Durban.  It is unfortunate, although perhaps not entirely surprising, that Mrs Goylan was struck by the similarity of the allegations made against Mr F and against herself and her husband.  At times, she has gone so far as to suggest that Ms B Durban’s whole approach derives from being sexually abused herself and that Ms B Durban’s concerns derive from a tendency to invent malicious assertions of this sort.

2. In circumstances where, for whatever reason, Ms B Durban, as I will explain in due course, honestly believes that [X] has been sexually and otherwise abused by Mr and Mrs Goylan, it is unsurprising that she entertains the darkest suspicions of them.  However, the response of Mr and Mrs Goylan to what, to them, are horrifying, untrue allegations is unsurprising.  The labile emotions that the march of events has produced in Ms B Durban and Mrs Goylan in particular has bedevilled what was already a significantly difficult set of circumstances.

3. Having made these general observations, I propose to deal with the evidence given and the submissions made at Court.  I will then deal with the various audio and tape recordings before coming on to my findings.

The evidence of Ms BB

1. What follows is taken from my notes.  It is of course not a transcript but records matters I found of significance.

2. Following some introductory remarks by counsel for the Independent Children’s Lawyer, Ms BB was called to give evidence, as it was anticipated that she was due to give birth the following day.  She adopted her affidavit as true and correct.  She is an aunt of [X].

3. Under cross-examination by counsel for the Goylans, she confirmed that she had a close relationship with [X].  [X] had told her that her time with her grandparents stopped, but she did not always tell her why.  She does not want to see them.  She became aware of the disclosures throughout 2016, and mid to late December could be correct.  She had been on a visit in mid-January.  She was shocked by the disclosure made on that occasion by [X].  She had not heard [X] call Ms Durban the good nanna.  She denied having any mental health problems.

4. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms CC confirmed that she was aware of the allegations from her mother in mid-2016.  There were concerns about the parental grandparents and also Mr F.  She was aware that time with the grandparents had stopped by the end of 2016.  She speaks to her mother and the family.  The matter is discussed in the family.  [X] said, “I don’t want to see my grandparents anymore”.  She was aware there was no more access by the end of 2016.  She had not spoken with her mother after this, as she (Ms BB) was so angry and upset.

5. The questions put in re-examination did not add anything of any moment.

The opening by counsel for the Goylans

1. Counsel informed the Court that the Goylans want [X] to live with them.  She turns seven in … .  [X] was initially with her parents and then with Ms Durban.  Prior to her third birthday, Ms Durban said there were disclosures regarding the father.  [X] was with Ms Durban since 26 June 2016, pursuant to a Permanent Care Order.  There was minimum fortnightly time with the grandparents, but within four months, Ms Durban stopped time.  There has been no considerable and no unsupervised time since.  Mr and Mrs Goylan understand that it would be a big change for [X] to live with them.

2. There was a police search.  Computers were seized and sexual abuse was alleged.  The DHHS and police investigated.  Then there was an application to the Court which sought time each Sunday.  The section 11F report which subsequently emerged showed good interaction between the Goylans and [X] and recommended time.  Dr A’s reports report low risk.  The family report has recommended time.  There were orders by consent for unsupervised time in 2018.  After the incident on 15 February 2018, there has been no time.  It is only after those events that the Goylans have sought to change residence.

3. Counsel noted that Ms N disputed the advice from other professionals.  The Department had visited [X]’s school when she was five and six.  She had been videoed by Ms Durban.  Dr O, Ms N and the Department are all concerned that [X] is suffering harm.  Nonetheless, her clients remain confident that a change would be better.

The evidence of Ms Goylan

1. It should be noted that Ms Goylan was extremely tense and labile in giving evidence.  While taking the oath, she became unable to continue and had to pause to compose herself.  In evidence-in-chief, she adopted her affidavits as true and correct.  When asked whether she would propose foster care for [X], she said that no granddaughter of hers will ever be placed in foster care.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, Mrs Goylan agreed that there was a Permanent Care Order in 2016.  They were spending regular time with [X] and they were happy occasions.  They had seven occasions of unsupervised access from July to 10 December 2016.  Ms Durban was not there during these times.  The last time they were with [X] was on 27 November 2016. 

3. On …, which was her birthday, Mr E rang and said [X] was not coming because of disclosures made to a doctor.  Then they were raided on 15 December in the morning.  They were home alone and seven policemen attended.  She became a bit ill.  They took what they wanted.  She could not believe the allegation of sexual penetration of a child under 16.

4. Counsel then traversed, in terms, the allegations made from time to time.  Mrs Goylan said it was untrue that [X] had been choked while in their care.  She did not see her choked.  She did not penetrate [X] with her finger.  She did not observe her.  Her husband had not touched [X] inappropriately.  Nor had anyone else.  [X] did not see her husband urinate.  There were no photographs of [X] naked.  They did not leave her outside the backdoor during thunder.  They did not lock her in a wardrobe.  Their robes do not lock, anyway.

5. They did not throw her on a couch or bed and did not restrain her and stop her breathing.  They had not told her she would never see her grandmother or be put in a dark place.  They had not cut her hair.  They did not tell [X] that they hated Ms Durban, nor did they tell her she would be placed in foster care.  [X] had not seen either her or her husband naked.  She had not put fingers in her mouth.  She had not kissed her on her mouth and no one else had either.  They did not keep [X] from the telephone if she wanted to contact police.

6. Mrs Goylan confirmed that her daughter Ms B has never harmed herself.  They have a very close relationship with her.  They bought her a ticket to travel on her 21^st birthday.

7. When challenged with the report to the Department dated 6 December 2016, Mrs Goylan denied any assaults of [X] and denied calling her a fucking idiot.  She said that no such language was used in her presence.  She was very surprised that [X] would say this.  Ms Durban had never said anything by way of complaint.

8. They had been together on each of the seven occasions.  There was a party at the park each time.  This was the pickup place.  How long they stayed depended.  It takes 15 to 20 minutes to get home.  They never were longer than four hours.  They had a duty of care.  There was not much said to Ms Durban at changeover.  On one occasion, [X] had said, “Come home and see my puppies” to her husband.  The relationship with Ms Durban was cordial and pleasant.  Everything was fine.  Makeup time was promised for December.

9. On 10 December, she had rung Ms Durban and said she had received a call.  She asked if it was true.  Ms Durban replied that it was true and that she would get a letter.  She told Ms Durban it was too terrible to talk about.  Ms Durban referred to a doctor.  Ms Durban said she was shocked and horrified.  The doctor had said [X] was not to come to them because of these horrific disclosures.  Mrs Goylan asked what disclosures and Ms Durban said she was not permitted to tell her.

10. The police returned the Goylans’ possessions on 26 December and were very nice.  Then the DHHS were involved.  She did not ring Ms Durban and decided to go legally.  She knew these were lies.  I note that in describing her decision to go to Court, Mrs Goylan said that she intended to “get what was rightfully ours”.

11. After this, she had not spoken with Ms Durban.  The DHHS came to their home in April 2018.  Not before Court started.  All they wanted was what the Magistrate gave them.  They just wanted access to their grandchild.

1. Noteworthily, although [X] told Ms Durban that the Goylans had "hurt her", she was unable to expand on it.  When she actually saw Mr and Mrs Goylan, she was perfectly content and happy to do so.

2. Thereafter, the Department closed their inquiry and sent exhibit R1.  Ms Durban seized upon this, although I suspect this is a matter of reconstruction, as an excuse to engage with Ms N.  The difficulty with this however is that by the time the Department sent exhibit R1 on 13 December 2017, Ms Durban had obtained a referral to Ms N on 20 June 2017.  Ms Durban's assertion that the Department told her to take [X] to further counselling is plainly untrue and a reconstruction.

3. There is simply no question in my mind that Ms Durban has been right from the start utterly convinced that the wholly extraordinary and outlandish allegations made against Mr and Mrs Goylan are true.  When she did not get what she wanted from the Department in the person of Ms K, she assumed that Ms K must be against her.  When she did not get the response that she wanted from Ms G, she accused Ms G of unprofessional conduct.  I should make it clear that the assertion that Ms G sought improperly to access Ms Durban's LEAP records is plainly not the case.  Ms G would have remembered it.  Furthermore, she would not, as she herself said, have regarded that as a matter against Ms Durban.

4. It is noteworthy that Ms Durban has described professionals whose views did not fit her own in pejorative terms to Ms N.

5. Thereafter, having got to Ms N, Ms Durban got the result she wanted.  Ms N ultimately had to admit that the therapeutic counselling in which she was engaged with [X] has to proceed on the basis that she accepts that [X]'s disclosures are true.  As I will come to state more fully and shortly, they are utterly untrue.  This both renders Ms N's conclusions valueless, but also speaks volumes for the weaknesses of Ms N's wholly partisan methodology.

6. Following the engagement of Ms N, the Department produced the report of 12 October 2017. 

7. The December 2017 report, as earlier indicated, refers to the cessation of the SECASA sessions and the fact that continuing sessions were not in [X]'s best interests.  Although Ms Durban did not accept that this was the effect of the advice from SECASA, I fully accept that it was.  It is based on contemporaneous file notes in the Department's records and there is no reason to suspect that they are inaccurate.  Furthermore, it is consistent with how Ms J had found [X] to be.

8. Despite all this advice, however, Ms Durban had engaged a further psychologist, whose identity she was not prepared to reveal.

9. The time ordered by the Court continued on a supervised basis and it is clear from Ms S's report that the child had no difficulty spending time with her grandparents of any significance.

10. There matters were, so to speak, until the fateful move to time in February 2018.

11. I have no doubt from the passages of audio recording on the USB stick that Ms Durban was opposed to the time being spent with the grandparents unsupervised in the park.  It is clear from what she says that this is so.  She is telling the child that she has to go, even though Ms Durban does not want it to occur.  It would be difficult to imagine a more obvious trigger to a highly-intelligent child (and not only does everybody agree she is highly intelligent, but the various recordings I have seen of her entirely support this), would pick up on this anxiety.

12. The Goylans were, of course, bursting to see [X], and Mrs Goylan's somewhat emotionally unrestrained persona most unfortunately tipped into the scale of things also.  The video recording taken by Mr E is, as I would find, entirely representative of the day.  Ms Durban was determined not to let the child go and Mrs Goylan was determined that she would.  Neither cover themselves in any glory whatever on this occasion.  Whether Mr and Mrs Goylan accused Mr E of having a criminal record (and it seems clear that one or other of them probably did mention the matter) is neither here nor there.

13. The emotions of all concerned were raw on the day.  More importantly so too was [X].  It appears that she urinated as a result of her distress.

14. The further VARE interview taken in April 2018 is, in my view, extremely telling.  Despite prolonged endeavours by a very sympathetic (and in my view slightly insinuating) female police officer, what emerges are simply what sound like rote-like recitations.  When I say "rote" I do not mean learned by heart.  Rather, I mean that these are clearly very embedded in [X]'s mind.

15. It needs to be noted, as Dr A himself said, the nature of the allegations are so extraordinary that any sensible person would have some reservation as to when they could really actually have occurred.  [X]'s cheeky grin when she was on her own tells, in my view, if nothing else, the lie to the allegations.

16. There is more to this however.  Not only has [X], whenever observed by independent professionals with the grandparents, been entirely happy in their company, I have seen and heard Mr and Mrs Goylan give their evidence.  The things they are alleged to have done are really quite extraordinary.  It is not perhaps the relatively minor matters at the bottom of the scale, such as smacking her, which give rise to incredulity; such a thing is possible.

17. The allegations taken at their worst, and these are all wholly and unqualifyingly accepted by Ms Durban, included digital penetration of the anus by both her grandparents.  It is asserted that the grandparents taped the child to the wall with the grandfather restraining her while the grandmother somehow presumably taped her arms and legs to the wall and then taped her mouth with a view to half-suffocating her.  As if this was not sufficiently outlandish, it is alleged that the grandparents take photographs of her naked, put them on the TV in some fashion and invite neighbours, including a neighbour called Mr Y who has a dog, round to see them.

18. The Goylans do not have a neighbour called Mr Y. They do not have a neighbour with a dog. Depravity of this sort is not unknown, but it is extremely unusual. Section 140 of the Evidence Act 1995 clearly comes into play.

19. Taking the materials as a whole, there is no doubt that [X] has said what she perceives Ms Durban wants her to say.  She is keenly conscious of Ms Durban's deep attachment to her and fear of losing her.  She is conscious, as she told Ms G, that she has to love Ms Durban the best.  She is conscious that she would like to see her grandparents, but Ms Durban does not want it.

20. Let it be said in plain and unequivocal terms.  There is no truth whatsoever in the outlandish assertions made against Mr and Mrs Goylan.  It is possible but by no means certain, that Mr or Mrs Goylan may have smacked [X] on some occasion, thus starting the entirety of this process.  If they have done anything at all, that is the full extent of it.  The outrageous slurs upon their good name and the appalling suggestion that they seek to harm and hurt this child are simply untrue.  It is a measure of Ms Durban's utter lack of insight that she believes each and every allegation.

21. Having made this major finding, I should make it clear for the avoidance of doubt that I do not accept either that at any time Mr and Mrs Goylans have locked [X] in a cupboard, made her feel scared and threatened her with being in a dark place or any of the other matters alleged against them.  It is quite apparent that they adore their grandchild and wish nothing but the best for her.

22. I have noted [W]'s letter, but as I have said earlier, in many ways it only goes to support the enmeshed nature of Ms Durban's household in which I have no doubt the fiendish conduct of the Goylans, as it is seen, is routinely described.  Whether it is discussed routinely in front of [X], I am not able to say, but [X] is all too well aware of these proceedings and Ms Durban's position in it.

23. It should be noted that Ms Durban's opinion of the Goylans has unfortunately been reinforced by some of the things said to her by Mr A Goylan.  Contrary to Ms Durban's dark suspicions however, Mr and Mrs Goylan have never tortured or unduly injured their son.  Contrary to Ms Durban's assertions, Ms B Goylan has always had an extremely affectionate relationship with her parents, and the various lurid things suggested against Ms B Goylan and her child are plainly untrue.

24. I note that Mr A Goylan unhesitatingly confirmed that he had told Ms Durban about misfortunes as a child, such as being pursued with a poker, but it is quite clear that for whatever reason he did this, the allegations are untrue.  The lurid demonification of Mr and Mrs Goylan by Ms Durban is just utterly misplaced.

25. By the same token, the feeling on the part of Mr and Mrs Goylan that Ms Durban has invented the entire thing simply to get at them is equally misplaced.  It fails to give appropriate insight into Ms Durban's somewhat tinted view of the world, as Dr A put it, and fails to give Ms Durban the proper credit she deserves for her very genuine love and affection for [X].

Where Does This Take Us In Terms Of [X]'s Best Interests?

Parental Responsibility

1. No one has made any submissions about equal parental responsibility. It is implicit in the position of all the parties that they should have sole parental responsibility if the child is living with them. The critical issue in this case is what should happen in terms of the live-with arrangement now. Although this case turns so specifically on its facts, it is still important to turn to section 60CC of the Family Law Act 1975.

The Primary Considerations

1. Everyone agrees that it is in principle desirable that [X] has a meaningful relationship with both of the sets of grandparents.  While the Act speaks of the benefit of the child's relationships with their parents, as things have devolved, Mr A Goylan's time appears likely to continue on a fortnightly basis whether [X] lives with his parents or with Ms Durban.  The circumstances of Ms Durban appear to be so tragically dire that it is inappropriate to consider her spend-time regime at the present.  Indeed, it is not possible to do so.

2. There is, however, a need to protect the child from physical or psychological harm.

3. Obviously, this is a critical aspect of this case.  In closing submissions, counsel for the Independent Children’s Lawyer pointed to a number of very concerning aspects about the evidence.  Despite, as I have earlier indicated, Ms G, Ms K, Ms Q and Ms S all observing no difficulties whatever between [X] and her grandparents, and despite Dr A's assessment of low-risk (which I should make it clear I accept), nothing will shift Ms Durban's view.  As earlier indicated, this permeates her family.  Ms BB is well aware of it as well.  Counsel submitted that there was a real risk to [X] being kept in this environment.  He supported a change of residence based on the recommendations of Ms Q. Ms Durban's reality percolates through her life and will affect [X].

4. In the end, once it is apparent that the allegations made against Mr and Mrs Goylan are untrue, it is obvious that it is necessary to give considerable weight to the criterion in section 60CC(2)(b). Indeed, it acquires greater weight by virtue of section 60CC(2A). I fully accept that remaining in Ms Durban's household in this hypervigilant and distorted view of the world puts her at very real risk of psychological harm. This is all the more so since it is Ms Durban's evident intention that [X] should continue in sessions with Ms N, who is going to only reinforce Ms Durban’s, narrative, embraced so readily by Ms N herself.

The Additional Considerations – Section 60CC(3)(a)

1. The child has not expressed a desire to change residence.  Indeed, although she has not been asked, I have no doubt that she would express a strong view that she wishes to remain in Ms Durban's primary care.  Ms Durban has been her primary carer for most of her life.  She has been a stable figure in [X]’s life.  She has, subject unfortunately to her weaknesses, provided a loving and, in a general way, entirely appropriate environment.

Section 60CC(3)(b)

1. As already just indicated, [X] has a close and secure bond with Ms Durban.  She also loves her half-brother, [W], although I note [W] is very substantially older than her, although he clearly cares for her deeply.  [W] is now almost adult and it is to be supposed that this interaction with [X] may lessen slightly as time goes by.  There is no reason to suppose that [X] does not have a good relationship with members of Ms Durban's family, other, of course, than her own mother.  Her relation with Ms Durban appears, at best, an intermittent work in progress.

2. [X] appears to have a good relationship with her father, whom she sees and should continue to see fortnightly.  She also, and this is very striking given the interruptions that have taken place from time to time, has a good and secure and loving bond with the Goylans.  There is no evidence as to the nature of [X]'s relationship with the wider Goylan family, but there is no reason to suppose it is inappropriate.

Section 60CC(3)(c)

1. Ms Durban has taken in the main what are admirable steps to participate in major long-term decisions about the child and to spend time and communicate with her.  Mr and Mrs Goylan, in my view, have also done their best, given the obstacles placed in their way.

Section 60CC(3)(ca)

1. [X]'s parents have failed lamentably to fulfil their obligations as parents.  Ms Durban, subject to the dreadful Achilles’ heel of her suspicions about Mr and Mrs Goylan, has done very well.  There was some suggestion that Mr and Mrs Goylan had not properly offered to contribute towards [X]'s wellbeing, but I reject this.  Once this ghastly dispute first surfaced, it was inevitable there would be tension between Ms Durban and Mr and Mrs Goylan.  They cannot be criticised for any failure that may have occurred in terms of financial contribution.

Section 60CC(3)(d)

1. There is no possible doubt that to remove [X] from Ms Durban's household and place her with Mr and Mrs Goylan, with a moratorium on Ms Durban's time for six months, will be deeply distressing for [X].  She will be removed from the household with which she is familiar and the person to whom she is closest.  She will go to live with grandparents with whom she has spent very little time recently.  The primary decision the Court has to make has to confront this very strong indicator that [X] should stay with Ms Durban.

Section 60CC(3)(e)

1. There is no practical difficulty or expense in either side's proposal.

Section 60CC(3)(f)

1. Ms Durban is well equipped both in terms of health and general maternal capacity to provide for [X]'s needs.  Where she fails however is to provide for her emotional needs by allowing this false construct to have developed and by clinging so tenaciously to it and, as is quite clear, seeking to bind [X] to it also.  [X]'s grandparents are not people who harm her at all.  In failing to grapple with this, Ms Durban evinces a most unfortunate weakness.

2. Mr and Mrs Goylan are relatively old in age to be looking after a child of these years.  Nonetheless, having seen and heard them give their evidence, they are, in my opinion, sufficiently capable of the demands of looking after a young child.  Despite all the allegations made against the Goylans, they were not challenged as to their physical and mental capacity as child rearers in any event.

3. It should be noted that [X] presents as an extremely intelligent, but also in my view a remarkably resilient child.  Even in her first VARE interview, she was capable of sustaining the interview for a lengthy time until the pressure upon her caused her to become distressed.  In the second VARE interview, she is entirely composed and some of what she has to say, appears to me, to be well advanced for a child of her years.  She is resilient and after initial distress, together with proper counselling, is likely to be able to adapt into the Goylan's household.

Section 60CC (3)(g)

1. In a sense, these matters have already, while important, been dealt with.  Ms Durban's background has left her over-sensitive in some areas.  Her lifestyle is entirely respectable and unremarkable, save to the extent that it involves interaction with an apparently drug-affected daughter whose circumstances are dire.

2. The circumstances of Mr and Mrs Goylan are likewise unremarkable.  They are a respectable, retired, hard-working migrant couple.  Indeed, those very qualities must have made the allegations made against them all the more hurtful and distressing.

Subsection 60CC(3)(h)

1. This is not relevant.

Subsection 60CC(3)(i)

1. The attitude of Ms Durban towards [X] is in part concerning.  Ms Durban said on more than one occasion words to the effect "what would be the effect upon a child not to be believed?"  In truth, what she really means is what will be the effect upon her?  Her attitude is, in a sense, possessive.  All parents, of course, are, to an extent, possessive about their children and this is a perfectly natural human phenomenon.  But in Ms Durban's extreme concentration of emotion upon [X], I sense something slightly off-putting.

2. Having said this, there is no doubt that as she sees it she is fighting tooth and nail against an unsympathetic system, which includes the DHHS, the Court counsellors, Dr A and doubtless, when this judgment is issued, myself.  It is a sincere position, but it is misconceived.

3. Mr and Mrs Goylan have only brought the application to change time as a result of the way the case has been conducted against them.  I accept that their attitude towards the child and the responsibilities of parenthood is entirely appropriate.  I accept their counsel's assertion that they have taken this step reluctantly, although I fear that in particular in relation to Mrs Goylan, there may be a triumphalist element to any response, should her application be successful.

Subsection 60CC(3)(j)

1. I have already dealt with the allegations of family violence in this case, as serious as they are.

Section 60CC(3)(k)

1. This is not relevant.

Subsection 60CC(3)(l)

1. It would, of course, be entirely desirable to make final orders.  Given that the outcome contended for by the Independent Children’s Lawyer and the Goylans requires a moratorium of time for six months, there must nonetheless be some question as to whether final orders are appropriate. 

Subsection 60CC(3)(m)

1. The other matter that is plainly relevant is what should be done to assist [X] with the changeover to the residence with Mr and Mrs Goylan, if that is ordered.  Counsel for the Independent Children’s Lawyer suggested counselling with Ms Z, and I have no doubt that that is appropriate.

Conclusion

1. It may have been apparent to the reader, as these reasons for judgment continue, that the conclusion the Court will reach is that, indeed, the orders sought by the Independent Children’s Lawyer should be made.  While I remain very keenly conscious that the transition to the home of Mr and Mrs Goylan will be extremely difficult for all concerned, including most importantly [X], it is the only proper resolution in [X]'s best interests.  The way that Ms Durban sees the world, and the resulting way in which she is seeking to shoehorn that view into the mind of [X], is desperately against her best interests.

2. That is the professional opinion of Ms Q and it accords with my own appreciation of the matter.

3. It needs to be understood that the Court is concerned with [X]'s best interests over the long term.  If [X] goes and lives with Mr and Mrs Goylan, I have no doubt she will be well cared for and happy, although, of course, she will miss Ms Durban and [W], and possibly others, significantly.  However, at the end of the moratorium that is proposed, it is hoped that Ms Durban will have recovered from the shattering blow that this judgment will necessarily represent to her and started, with the assistance of counselling for her, to deconstruct her view about Mr and Mrs Goylan and to face the world through slightly less tinted negatively-framed glasses.

1. She simply has to put aside this entrenched belief, which at present appears all but immovable.  Should she fail to do so, her prognosis as a carer for [X] must necessarily be extremely debatable.  These will be matters for Ms Durban to consider over time.

2. Taking all the relevant matters into consideration, it is quite clear, however regrettably, that the orders proposed by the Independent Children’s Lawyer are, indeed, those in [X]'s best interests.  There has been much to traverse in this enormously lengthy judgment.  Care will need to be given to the precise mechanics whereby the change of residence is occurred, although I should make it clear that I intend it to happen forthwith, unless persuaded otherwise.  I have prepared some draft orders consistent with the Independent Children’s Lawyer's submission, but will hear from the parties before making them final.  I will require submissions inter alia as to what should happen after six months and what counselling may be appropriate for Ms Durban.

Postscript

1. Following reservation of judgment, on 28 February 2019 my chambers received an email from Ms Durban. Leaving aside criticisms of the Court process, Ms Durban sought that I access the entirety of the final VARE recording.  

2. I directed my Associate to inform Ms Durban that as judgment was reserved no further material could be filed, (as to which, see Kimber v Owners Strata Plan No 48216 (No 2) [2018] FCAFC 58 at [12]).

3. As things have transpired, the first tranche of the last VARE recording played in full when I reviewed it in the preparing this judgment, and I have summarised my impressions at 285 to 297 above.

I certify that the preceding three hundred and ninety-nine (399) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 6 May 2019