Griffiths & Soyer
[2022] FedCFamC1F 554
Federal Circuit and Family Court of Australia
(DIVISION 1)
Griffiths & Soyer [2022] FedCFamC1F 554
File number(s): NCC 2792 of 2020 Judgment of: CLEARY J Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – PARENTING – Where the parents agree that the children should continue to live with the mother and that she should have sole parental responsibility – Whether there should be time and communication between the children and the father – Where the mother asked the Court to make findings that the father has sexually abused the youngest child, and the father represents an unacceptable risk of harm to the two children – Where the evidence does not support such findings – Where the children enjoyed a good relationship with both parents until separation – Where the relationship between the children and the father has diminished and deteriorated since separation – Where the children have had no contact at all with the father for more than three years – Where at present the children are caught up in generalised negativity toward the father not drawn from their own experience – Where the father has at all times wished to spend time and communicate with the children – Where it will be a significant change for the children to begin seeing the father again – Where the Court finds the best outcome for the children is that they gradually restore their relationship between themselves and the father – Ordered that the mother have sole parental responsibility and residence, with the children to initially spend periods of supervised time with the father, then to increasing unsupervised periods of time. Legislation: Family Law Act 1975 (Cth) Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Division: Division 1 First Instance Number of paragraphs: 395 Date of last submissions: 3 August 2022 Date of hearing: 30 May – 2 June 2022 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Mullane & Lindsay Counsel for the Applicant: Ms Court Solicitor for the Respondent: Gus Farland Pty Ltd Solicitor for the Independent Children's Lawyer: Legal Aid NSW Counsel for the Independent Children's Lawyer: Ms Lioumis ORDERS
NCC 2792 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GRIFFITHS
Applicant
AND: MR SOYER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CLEARY J
DATE OF ORDER:
5 August 2022
THE COURT ORDERS THAT:
1.All prior parenting orders made in relation to X born in 2011 and Y born in 2015, together known as “the children” are discharged.
Parental Responsibility
2.The mother have sole parental responsibility for the children.
3.The mother shall advise the father of the name and contact details of any current and future medical practitioner, dentist, psychologist, counsellor or therapist who is engaged to provide services to the children or either of them.
4.The mother shall authorise all providers of therapeutic services to allow contact from the father by way of communication and provision by him of information relating to the children and his past relationship with them over time.
5.The mother shall provide to any current and future treating psychologist for the children or either of them a copy of these orders and reasons.
Residence
6.The children live with the mother.
Time and Communication
7.Each of the parents shall forthwith complete all intake procedures at the B Town Contact Centre or such other contact centre as is agreed between the parties (“the Contact Centre”) and comply with all reasonable requests in relation to use of the Contact Centre.
8.The children spend time with the father as follows:
(a)Commencing on the first available date, for a period of three months at the Contact Centre each week for a period of not less than two hours at a time arranged by the Contact Centre with both parents, with the father to pay for the costs of each session; and thereafter
(b)For a period of six months on each alternate weekend for a period of four hours in the community supervised either by a professional supervision service nominated by the mother within three months of the date of these orders, or, in the event that no supervision service is nominated by the mother within time, by a supervision service nominated by the father, with the parties to share equally in the cost of supervision; and thereafter
(c)Unsupervised, for a period of six hours on one day of each alternate weekend and failing agreement from 10.00 am to 4.00 pm each alternate Saturday, with changeover of the children to take place at the Contact Centre unless otherwise agreed between the parties;
(d)At such other and/or additional times as agreed between the parties in writing.
Specific issues
9.Each parent shall keep the other advised of their current residential address and contact details.
10.The mother shall advise the father of the children’s current enrolment at school and any change of enrolment in future.
11.In the event of a medical emergency, the parent who has the care of the children is to notify the other parent as urgently as practicably possible of the emergency and of the child/rens’ whereabouts and to authorise the medical practitioners and hospitals involved with the child/rens’ care to liaise with the other parent.
12.The parties, or either of them, may provide a copy of these orders and reasons to a treating psychologist for the children or either one of them.
Restraint
13.Each party is restrained from denigrating, criticising and insulting the other parent or members of the extended family of that parent in the presence or hearing of the children or either of them and shall remove the children from the presence of any third party behaving in that way.
Independent Children’s Lawyer (“ICL”)
14.The ICL shall within 14 days provide a copy of these orders to:
(a)The principal of School C or of any other school which either child is presently attending; and
(b)The Contact Centre.
15.The ICL, together with the Child Court Expert if available, at a time mutually convenient to each of them and the mother, shall explain these orders to the children in person and answer any relevant questions which the children or either of them may have.
Orders to be provided to Secretary, Department of Communities and Justice NSW
16.A Senior Judicial Registrar shall provide a copy of these orders and reasons to the Secretary of Department of Communities and Justice NSW.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Griffiths & Soyer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
These are competing applications for parenting orders concerning two children, X (11) and Y (seven).
The parties separated in February 2019 after almost nine years living together in a de facto relationship. The mother moved with the children away from the family home having become convinced that the children were not safe with the father and that he had sexually assaulted the younger child. Police and the Department of Communities and Justice (“DCJ”) (formerly known as Family and Community Services) became involved.
By date of trial the children had had no contact with the father for the three years and three months which had passed since the date of separation.
Initially the matter was considered not to be appropriate for inclusion into the Magellan Protocol. In May 2020, after the release of a Children and Parents Issues Assessment (“CAPIA”) the matter was reconsidered, allocated into the Magellan protocol and a Magellan Report was supplied.
THE APPLICATIONS
There was no dispute between the parties that the children should continue to live with the mother and that she would have sole parental responsibility for both long term and day to day decisions.
The contentious issue was whether there should be time and communication between the children and the father and, if so, what orders should be made.
The Applicant Mother
The mother asked the Court to make findings that “the father has sexually abused [Y], and that he represents an unacceptable risk of harm to the children.”[1]
[1] Exhibit 2.
The findings sought were with respect to 13 events involving Y, and one event involving X, between April 2018 and September 2019.[2]Those events have been individually considered in these reasons.
[2] Exhibit 2, pages 4-12.
The mother’s position, unchanged effectively since separation of the parties, was that the children spend no time with the father and that he not be permitted to communicate with them.
The mother proposed that the father be restrained, pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), from approaching within 200 metres of the children, the mother, the former family home, and the mother’s workplace, as well from approaching within 100 metres of where the children attend school.
The Respondent Father
The father denied that he had perpetrated sexual abuse of Y or X. He submitted that he did not represent a risk of harm of any kind to the children.
He wished to restore his relationship with the children after a long period of separation from them.
By his Amended Response[3] the father proposed orders for time and communication with the children in stages:
(a)Stage 1: Eight professional supervised visitations in regional New South Wales every Saturday for three hours; thereafter
(b)Stage 2: Six visitations, each alternate weekend for four hours on Saturday, supervised by Mr D and/or Ms E; thereafter
(c)Stage 3: Six unsupervised visitations, each alternate weekend from 10.00 am to 5.00 pm on Saturday; thereafter an in fortnightly cycles:
(d)Indefinite Stage:
(i)Week 1: From the conclusion of school or 3.00 pm on Friday, until 5.00 pm on the immediately following Sunday;
(ii)Week 2: From the conclusion of school or 3.00 pm on Wednesday, until the commencement of school or 9.00 am the immediately following day.
[3] Amended Response to Initiating Application of the father filed 7 March 2022.
At the commencement of Stage 2 the father proposed telephone, and/or video contact with the children every Wednesday and Sunday between 5.30 pm and 6.00 pm, and on the children’s birthdays with the mother entitled to remain present during the contact until the commencement of Stage 3.
At the commencement of the final indefinite stage the father proposed time with the children for one half of each of the school holiday periods and on special occasions.
At the conclusion of the evidence the father conceded that his proposed supervisors were not familiar to the children. He indicated that he was not opposed to the proposal of the Independent Children’s Lawyer (“ICL”).
The ICL
At the commencement of the trial the ICL did not have a view or proposed orders. This was unsurprising and appropriate. The mother had raised allegations of past sexual abuse by the father of the younger child and a risk of further abuse if contact was to be permitted between the father and the children.
At the conclusion of the evidence the ICL and the father submitted that there was insufficient evidence for a finding of sexual abuse and that the father did not represent an unacceptable risk of harm including sexual abuse.
The ICL tendered a Minute of Order[4] which proposed time with the father supervised for ten months, graduating to short periods of unsupervised time fortnightly.
THE PARTIES
[4] Exhibit 18.
The Applicant Mother
The mother is aged 41 years.
The mother identifies as Aboriginal. She and the children are actively involved in the local indigenous community in regional NSW and in culture.
In May mid-2020, the mother re-partnered with Mr F aged 48 years. They began living together in late 2021 on Mr F’s property out of B Town.
The mother and Mr F have one child together, Z, born in 2021. They plan to marry in 2022.
Mr F separated from his wife in mid-2018. He has three children of his previous marriage, aged 13, 11 and six. Mr F’s children spend time with him each alternate weekend from Friday to Sunday evening, for half of the school holidays and on special occasions. When his children are not living with him, they live with their mother.
The household of the mother includes herself, the subject children, Mr F, Z and Mr F’s older children when they spend time with him.
The mother is an allied health professional. She is on maternity leave . from her position as a Manager for AA Service until late 2022. She intends to request a further 12 months leave of absence. Thereafter, she anticipates returning to work part time two days a week until Z is six years of age.
The Respondent Father
The father is aged 49 years. He is tradesperson but was injured at work early in 2018. He has received income protection payments since his injury. The father described the impact of his injury in this way:[5]
…I experienced significant and constant pain, for which I took medication and received surgery. It must have had an impact on my ability to tolerate discomfort and stressors. However, I cannot recall that my behaviour towards [Ms Griffiths] or the children changed significantly.
[5] Affidavit of the father filed 15/04/2022, par 103.
At date of trial the father was renting accommodationin regional NSW on the property of a friend. The father described his accommodation as basic in that it had hot water, and a toilet and a shower, but the kitchen was inadequate and he was using camping equipment to cook his food.[6] He was looking at houses to purchase with the intention to move into the B Town area.[7] In April 2022 he had pre-approval for a mortgage.
[6] Affidavit of the father filed 15/04/2022, par 63.
[7] Affidavit of the father filed 15/04/2022, par 140.
THE TRIAL
The trial had been allocated four days commencing 30 May 2022.
All parties were legally represented.
The trial concluded within the allocated time with judgment reserved.
On 1 July 2022 the decision of the Full Court in Isles & Nelissen[8] was delivered. Time was allowed for further submissions if any arising from that decision. Written submissions were received on behalf of all parties.[9]
[8] [2022] FedCFamC1A 97.
[9] Exhibits 22, 23 and 24.
HISTORY OF RELEVANT EVENTS
The parties formed a relationship in early 2010 and shortly thereafter began living together in regional NSW. Within a short period the mother was pregnant with the parties’ first child.
Birth of first child – 2011
X, the elder child, was born in 2011. The uncontested evidence of the father was that the mother took some maternity leave after the birth but thereafter worked full time as the father also did. They otherwise shared the care of the child.
The parties thereafter moved interstate twice, on the initiative of the mother, between 2013 and 2017.
The details were somewhat vague in the affidavit of the mother but what was presented implied that the father was often barely present in the life of herself and the elder child. There was more detail in the father’s affidavit which was not the subject of challenge. The father’s version was of working parents sharing the care of children.
Working in WA – 2013
In 2013, the mother secured a position in G Town, Western Australia. She moved with the elder child, aged less than two years, to take up that position. According to the mother the father “stayed in [H Town] to wind up his business.”[10] The father’s version was that the mother went ahead with X to WA two months ahead of him. He arrived, cared for the elder child at home for a couple of weeks then found full time employment. The mother’s assertion “[Mr Soyer] made some day visits to us whilst we were in Western Australia”[11] is inconsistent even with her own earlier evidence.
[10] Affidavit of the mother filed 8/04/2022, par 17.
[11] Affidavit of the mother filed 8/04/2022, par 18.
The parties agree that the father found work in WA. The mother vaguely asserted “Some of his employment meant that he lived on […] sites for long periods”.[12] The father provided unchallenged detail “I secured employment for a period of about 18 months, when I stayed at home each night. During this period, we shared the parenting responsibilities, equally. Thereafter, for about nine months, I would go out to work [on a fly-in, fly-out basis].”[13] When he was away the child was in the sole care of the mother, otherwise they both cared for the child.
[12] Affidavit of the mother filed 8/04/2022, par 20.
[13] Affidavit of the father filed 15/04/2022, pars 27–28.
By early 2014 that year the mother was pregnant with the parties’ second child.
Parties purchase property at J Town – 2014
In 2014, the parties jointly purchased the former family home, a large property at J Town.
In late 2014, the mother and the elder child flew back to NSW in anticipation of the birth of the second child. After four weeks the father flew to NSW for the birth of the child and to assist with the care of the elder child.
Birth of second child - 2015
In 2015, the younger child Y was born.
After three to six weeks the family returned together to WA. The father continued to work in WA until 2017.
There is no reference by the mother to giving up her employment in WA but it must be the case that she did after her 12 month period of maternity leave expired.
Working in QLD – 2016
In 2016, the mother secured a position for herself in Queensland. She moved with the two children to live in Queensland whilst the father worked out the six month balance of his contract in WA. The children attended school and preschool.
In 2017, the father secured employment in Queensland and joined the family.
Return to J Town – mid-2017
Mid-year in 2017, the parties and children returned to live on the property at J Town.
Again there is no reference by the mother to giving up her employment in Queensland but inferentially she did.
The father worked for a short period of weeks in WA then shortly afterwards secured employment in K Town. The father lived with members of the mother’s family during the week and came home to J Town to the mother and children at weekends.
The mother chose to remain living in J Town with the children. Her own mother lived close by metres away and could assist her with the children.
Father injured at work – 2017/18
The mother asserts that it was in late 2017 that the father injured himself and was unable to work. The father reported it was early in 2018. Either way the father was thereafter not in paid work and was at home with the children from at least early 2018.
The mother was working full time. The parties were by then planning to marry.
Y makes a statement – April 2018 [Event One]
In […] April 2018, the mother reports that Y said to her whilst they were watching television together, “Daddy touches my wee wee in [his vehicle]” and pointed at her vagina as she said it.[14] Y was at that time three years old.
[14] Affidavit of the mother filed 8/04/2022, par 44.
Accepting that the child said and did what was reported, those words and the accompanying gesture, alone, could not give rise to a finding of sexual abuse. There is no information about what it was that gave rise to the child’s comment. The mother herself appears to have understood that at the time. Both parents would of necessity have touched this three year old child on her genital area numerous times whilst bathing, changing and attending to the child. Something may have happened which was enough to cause her to tell her mother about it.
In answer to a question from counsel for the ICL the mother said the child had made the statement in a matter of fact way and was not upset.
The mother gave no evidence of any verbal or physical response by herself to the child if there was one. In cross-examination she said she had not put the child to bed, had not put her arm round the child, “just sat her next to me, talked about the TV”. The mother said she could not remember if she had asked the child for any details.
The mother describes herself as feeling “very confused and distressed by her [the child’s] statements.”[15]
[15] Affidavit of the mother filed 8/04/2022, par 44.
The father was asleep in the house at the time, as was the elder child. The mother did not speak to the father that night about what Y had said.
The overall evidence by the mother of this incident suggests she felt the need for guidance as a priority at that point.
On the next morning, without prior discussion, the mother took the children to the home of the maternal great grandmother at H Town, about 40 kilometres south of the family home. This was something the mother did quite regularly. She did not offer any explanation to the father for why she was going on this occasion.
The maternal great grandmother did not provide an affidavit, probably due to illness.
The mother arranged a medical appointment with the family general practitioner “[Dr L]” in H Town. The appointment was five days later in early 2018.
Prior to the appointment the mother telephoned the father and said “I need to talk to you. [Y] has made a disclosure to me and I’m taking her to the doctors.”[16]
[16] Affidavit of the mother filed 8/04/2022, par 48.
The mother’s account is that the parents later had a conversation in person in the mother’s car where she said to the father: “[Y] says you have been touching her wee wee when she is in [your vehicle]. She pointed at her vagina when she said this”; with the father responding “Something has obviously happened to her, possibly at the preschool, we need to get to the bottom of this”.[17]
[17] Affidavit of the mother filed 8/04/2022, par 48.
The father’s account is similar although he does not refer to a conversation in the car, just by telephone that the mother said to him: “[Y] has said to me that you’ve been touching her” and that he responded “No ways. That’s not true. We need to get to the bottom of this. Let’s take her to the doctor”; the mother responding “Right, I’ll make the appointment.”[18]
[18] Affidavit of the father filed 15/04/2022, par 6.
The ICL did question the father about whether an “accident” [urine] had happened for Y while they were out and about in 2018/2019. The father did recall one time where she had “wet herself through her knickers”. He had pulled over by a named sports ground, unclipped her from her car seat, got her out of the car, changed her pants and underpants. Asked where X was, the father said she was in the car. He could not recall if she had said anything about it.
It could be an explanation for the original statement (“Dad touched my wee-wee in [his vehicle]”) or have nothing to do with it. The father clearly did not relate this incident to any allegation of the mother and had not mentioned it in his affidavit.
The Court concludes that both parents acted responsibly. The mother thought through how she intended to deal with Y’s statement then contacted the father and told him what was worrying her about the child. The father reacted calmly and with obvious concern for the child.
There was cooperation and no recriminations.
Intervention by Dr L –April 2018
The mother took Y to see the doctor in the morning, she then returned the child to the care of the maternal grandmother who was waiting for them at the home of the maternal great grandmother. In the afternoon the parents together attended on the doctor.
Dr L in her affidavit reports that the mother attended with Y and said to the doctor, in the presence of the child, “I am very worried. I feel that [Mr Soyer] has been inappropriate with [Y]. [Y] has reported that daddy has been touching her wee wee when in [his vehicle] and pointing to her vagina”.[19]
[19] Affidavit of Dr L filed 19/05/2022, par 8.
Dr L conducted an examination of the child’s genitals. She diagnosed the child with allergic dermatitis with a fungal infection. In her oral evidence the doctor referred to the child having vulva vaginitis – an inflammation of the external genitals caused by such things as sitting in the bath for a long time, reaction to toilet paper and scratching. During cross-examination the doctor agreed with the proposal that soap could also be a cause.
The doctor prescribed an ointment and a cream for application day and night for five days.
There was no indication of how long the child was likely to have been in that state of infection.
In her oral evidence Dr L said she had asked the child “has someone been touching where you don’t feel comfortable?” There was no note of that question, or any answer, in the doctor’s medical records produced in response to subpoena. The mother reports that “[Dr L] asked [Y] some questions and [Y] was not forthcoming with anything.”[20] It was a complex question for a three year old to understand.
[20] Affidavit of the mother filed 8/04/2022, par 49.
Later on that day Dr L saw both parents together without the child.
The doctor appears to have been anxious about this development, although not to the point of declining the request to meet with them together: “This was not a normal process. I have never had someone come into an appointment with the alleged perpetrator.”[21]
[21] Affidavit of Dr L filed 19/05/2022, par 10.
The doctor and the parents had a three way discussion about the mother’s concerns that the father might have been acting inappropriately with Y.[22]
[22] Affidavit of Dr L filed 19/05/2022, par 11.
The doctor reports that she asked the father “Is there any risk of you acting inappropriately with [Y]?” The doctor reports that the father replied “No”.[23]
[23] Affidavit of Dr L filed 19/05/2022, par 11.
Counsel for the ICL asked the doctor why she had put that question to the father. The doctor’s answer was candid: “I had never been put in that situation before. I guess I just challenged him”. The doctor then readily conceded that that she had no experience interviewing witnesses nor forensic experience.
At the time however the doctor must have been satisfied with what she had done. Her affidavit reports: “I did not think it necessary to make a notification of [Ms Griffiths] [the mother’s] concerns about [Y’s] disclosure to her after this meeting with [Ms Griffiths] and [Mr Soyer’s] [the parents], and the parents seemed okay with that choice.”[24]
[24] Affidavit of Dr L filed 19/05/2022, par 12.
Consistently with that decision the doctor did not record in her notes any reference to the mother’s concerns about possible abuse of the child nor of the consultation by the doctor with both parents.
The overall impression of the Court of the written and oral evidence of Dr L was that the doctor was disconcerted by events in early 2018, and uncertain about what to do. She appeared to lose sight of the fact that she was asked to see Y in the context of the mother’s concern that the child might have been telling her about an abusive event. Dr L did not respond to that information being a cue for a mandatory report.
A certificate under section 128 of the Evidence Act 1995 (NSW) was issued in respect of the doctor being required to answer a question with respect to mandatory reporting.
The mother at that time accepted from the father that he had not done anything inappropriate with Y.
The fact that Y had both vaginitis and a fungal infection may have had some influence on her thinking but there is no reference to it.
The Court concludes that there is some possibility that the child could have been in discomfort and conscious of her “wee wee” being painful when she spoke to her mother but it may not be the case.
The mother returned with the children to the family home to live together with the father as before. It was an impressive commitment by the parents to each other and the children.
It was also an opportunity lost for the matter to be reported to DCJ which would likely have led to the child being interviewed by someone trained in forensic work with children.
When the parents returned from their consultation with Dr L to the home of the maternal great grandmother, the father spoke to the maternal family. He told them he had not done anything to Y. The maternal grandmother revealed to him for the first time that she had been sexually abused as a child and stressed what a serious thing sexual abuse was.[25]
[25] Affidavit of the maternal grandmother, filed 8/04/2022, par 14.
The maternal grandmother also gave the mother some advice: “If there is anything of concern about [Y] and regarding her behaviour, write it down to help you make sense of it.”[26]
[26] Affidavit of the maternal grandmother, filed 8/04/2022, par 16.
The Court has evidence of the mother following this advice. Her typed notes for the period […]April 2018 to […] April 2019 were annexed to her police statement of […]April 2019.[27]
[27] Exhibit 20.
The Court infers that the mother and the maternal family became and remained watchful for any indication of abusive conduct by the father.
The parties’ plan to marry thereafter fell away apparently without discussion.
May/June 2018 – overseas trip
In mid-2018, the mother, the maternal grandmother and the subject children spent three weeks overseas. It was a relaxed and enjoyable holiday. The mother observed that Y no longer needed a night nappy so stopped using them.
On return home the mother found that it was necessary to again use night nappies for Y who began bedwetting and waking.
Further medical condition for Y – July 2018
In July 2018, the director of Y’s preschool reported to the mother that the child had said “she doesn’t want to go to the toilet because her wee wee has been sore”.[28]
[28] Affidavit of the mother filed 8/04/2022, par 54.
The Court infers that neither of the parents had observed the child to be in pain or reluctant to use the toilet prior to the preschool information.
In mid July 2018, the child attended H Town Medical Centre, with the mother, and was seen by Dr M. The child was again diagnosed with vulva vaginitis and pathology tests were ordered.[29] Dr M is said to have advised the mother to “keep [Y] out of the sandpit at daycare”.[30] The mother made that request of the preschool and told the father what the doctor had said.
[29] Exhibit 21.
[30] Affidavit of the mother filed 8/04/2022, par 54.
October/November 2018
In October 2018, the mother began attending a course in K Town each week. Her oral evidence was that she left home between 5.00-7.00 am on Wednesday morning and returned home between 6.30-7.00 pm on Thursday night. There were also some weekend trips away from the family.[31] There was no evidence of what the course was. The father cared for the children alone at those times.
[31] Affidavit of the mother filed 8/04/2022, par 55.
In late October 2018[…], the director of Y’s preschool is said by the mother to have spoken to her, telling her that Y had been “very clingy last week. She was crying a lot and asking for mummy”. She went on to describe Y as “lacking in concentration and confidence, and she can’t retain memory as well as she used to” and is reported to have said she had told the father.[32]
[32] Affidavit of the mother filed 8/04/2022, par 56.
The mother, on her own evidence, angrily confronted the father about why he had not told her about the director’s report to him that Y has been clingy and crying.
The mother asserts that the father denied that the director had told him those things and told her that the director had told him that Y had been fighting with her friend, nothing more.
The Court concludes that it is possible that different information was given to each parent at different times.
Y was in the first month of new family arrangements where her mother was absent effectively (from the children’s perspective) from Tuesday night until Thursday night each week, and sometimes weekends. Aged three years it is unsurprising that the child missed her mother and became clingy and upset when leaving her. The father reported that Y was clingy with him too, hanging on to his leg when he dropped her off at day-care but running to him and hugging him when he collected her.[33]
[33] Affidavit of the father filed 15/04/2022, par 114.
The bubble bath incident –October 2018
On this evening the mother returned to the home on Wednesday night when the father and children were not expecting to see her.
The mother described a scene of the children in the bathroom with the father, consistent with what the father described as the usual post dinner bath routine for the children.[34] The father did not refer to the events of late 2018 at all in his affidavit.
[34] Affidavit of the father filed 15/04/2022, pars 46–51.
The only disparity arising from what the mother reported was over the bubble bath. The mother was adamant that the children never had bubble baths and that there was no bubble bath liquid in the house.
The father asserted that “The children had bubble bath liquid in the bathroom, for them to use, from a very young age. More often than not, it was used during bath time.”[35]
[35] Affidavit of the father filed 15/04/2022, par 48.
On this night the bath was full of bubbles. Y is said by the mother to have reacted anxiously about the bubbles. The mother questioned her about it asking such questions as:[36]
Mother: …why don’t you want to have a bubble bath…what’s wrong with the bubble bath?
[Y]: I’m scared mummy. Daddy makes bubble baths.
Mother: Are you scared of bubbles?
[Y]: No bubbles.
Mother: Are you scared of your daddy?
[Y]: Yes.
[36] Affidavit of the mother filed 8/04/2022, par 58.
A possible explanation is that when the father bathed the children he allowed bubble bath; when the mother bathed the children she did not; and the children were aware of the difference.
Six months prior Dr M had diagnosed Y with vulva vaginitis. Her evidence in this Court was that two of the possible causes of that condition was sitting in the bath too long and soap. It seems likely that the doctor would have communicated that information to the mother when she was seen with the child. If she did then the mother may or may not have communicated that to the father. It seems less likely that she did, given that sitting in soapy bubble bath met those two causes for vulva vaginitis.
Whatever the concerns of the mother were about this incident she returned to her course either that night or on the following morning. She returned home on the next night, in late 2018. The mother reports that Y was “pulling her pants and undies down in the lounge room saying “my wee wee is itchy and sore”. The father commented “It’s the sand from preschool causing the itch.”[37]
[37] Affidavit of the mother filed 8/04/2022, par 112.
That comment is consistent with the medical advice from Dr M passed on by the mother to the father. Whether or not the bubble bath on the previous night had also played a role, there is nothing sinister or untoward in any of the evidence of the mother on this topic.[38]
[38] Affidavit of the mother filed 8/04/2022, pars 58–60.
Months passed (October 2018– February 2019) during which the mother describes both children as clingy to her and “When I was home she [Y] insisted that I take her to the toilet and change her nappy.”[39] The mother describes a range of difficulties for Y, multiple urinary tract infections, sick in the stomach, having nightmares and waking.[40]
[39] Affidavit of the mother filed 8/04/2022, par 61.
[40] Affidavit of the mother filed 8/04/2022, par 62.
Over Christmas 2018, the mother says she was working less. She decided to increase Y’s days at preschool from four days to five days but to reduce her own working hours so she could deliver the child to and collect her from preschool. The mother was hopeful that the child would be more settled and less clingy as a result. The mother reported that she did not consult with the father but told him what she intended to do.[41] Apparently he raised no objection.
[41] Affidavit of the mother filed 8/04/2022, par 63.
The mother reports that in early February 2019 the director of the preschool told her that “[Y] was back to her happy, playful and outgoing self”.[42]
[42] Affidavit of the mother filed 8/04/2022, par 64.
When she then told the children that the father would pick them up next day[…], the mother reports both girls being clingy. The mother picked Y up herself on that day. Probably the father collected X from school. The mother took both children to the home of the maternal grandmother.
On the next day[…], the mother alleges that the director of the preschool told her that the father had been feeding Y too many lollies, “[Y] often comes to preschool with lollies and sweet foods. [Y] told us that [Mr Soyer] has been giving her lots of sweet foods at home”.[43]
[43] Affidavit of the mother filed 8/04/2022, par 66.
The mother alleges that she challenged the father with this information, that he denied feeding Y lollies and accused the preschool teachers of lying if that is what they had said.
The father in his affidavit was silent on whether there had been a conversation between the parents on this topic. He denied putting lollies and sugary foods in the children’s lunch boxes. He commented that Y was sometimes given cake and lollies at preschool to bring home.
The evidence of the mother on this point is hard to follow. The mother was delivering and collecting the children from preschool and school at this time, not the father. She would have or could have seen what was in their lunch boxes if the father was packing them.
In early 2019, the mother took Y to the dentist. She had two fillings. The mother says she “had a concern that [Mr Soyer] may have been grooming [Y] with sweet lollies.”[44] Her thinking was that X had not needed fillings in her teeth and that the father was not feeding X lollies.
[44] Affidavit of the mother filed 8/04/2022, par 68.
Whether or not the father had given Y lollies on special occasions only, as he said, or more often, as the mother feared, the evidence, which amounts to no more than the mother having a thought which worried her, could not and does not support a finding that there was sexually motivated misconduct by the father.
Mother makes the decision to question Y –February 2019 [Event Two]
On this day the mother asked Y a question, without any verbal or behavioural prompt from the child over the previous ten months. The question she asked was “Has Dad been touching your wee wee?”[45]
[45] Affidavit of the mother filed 8/04/2022, par 70.
The Court concludes that this decision of the mother, to question rather than listen and watch, had far reaching consequences for both children.
The mother disclosed her thought processes leading up to this questioning as follows.
She had concerns about Y’s welfare and her unsettled behaviour. She asserted she had addressed her concerns with the father although she does not reveal what she said to him. She describes the father as “aggressively dismissive of her comments”. She alleges that the father “kept saying something at preschool is going on. The boys keep trying to kiss her there”. The father denied ever having said anything to the effect that Y’s behaviour was linked to “boys trying to kiss her at day-care”. His evidence was that Y’s bedwetting, sleeping and attachment issues were unrelated to day-care (preschool) in his opinion.[46]
[46] Affidavit of the father filed 15/04/2022, par 120.
There were two additional matters leading to the mother’s decision to question the child “the early 2018 disclosure and [Y] not settling, even when I was available to settle her.”[47]
[47] Affidavit of the mother filed 8/04/2022, par 70.
The Court concludes that the reference by the mother to “the early disclosure” indicates that the mother had been looking back and changing her mind about her past acceptance of the father’s denial of any wrongdoing. Further, she was combining that change of view with current worries about Y’s emotional state and coming to the conclusion that the answer to her own question about what was going wrong for Y was, the father. Her own feelings about the father had changed.
The father had been involved in the day to day care of Y to a lesser and greater extent throughout her life. He had bathed her, changed her clothes, changed her nappy, and wiped her bottom after she used the toilet on many occasions. That is not in dispute.
How then was the child, now aged three years and 10 months old, to answer the mother’s question?
The evidence of the mother about the questioning is as follows:[48]
[48] Affidavit of the mother filed 8/04/2022, pars 70–71.
Mother: Has Dad been touching your wee wee?
[Y]: Daddy touched my wee wee, but he hasn’t been doing it anymore. He touched my wee wee and I said no and he said okay.
Mother: Where did he touch you?
[Y]: He touches my wee wee. He touches here and takes pictures. [Pointing to her vagina and also to her inner thigh when making this statement].
Mother: Where does this happen?
[Y]: At work.
Mother: Where is work?
[Y]: In the forest.
The mother very clearly interpreted the statements of the child as evidence of sexual misconduct by the father, “I did not know at that time what ‘forest’ [Y] was referring to, but I was convinced that what [Y] was saying was true.”[49]
[49] Affidavit of the mother filed 8/04/2022, par 74.
The mother felt the need to see Dr L again “as she had seen [Y] previously.”
The mother made an appointment on the earliest available date which was 12 days in advance[…].
The mother did not say anything to the father. The evidence is that the mother remained living in the home with the children until the day before the appointment, saying nothing to the father about what she had done nor what the child had said. It is unclear whether the mother was working during this period.
[…]The mother took the children to the home of the maternal grandmother and stayed there overnight.
The appointment with Dr L –February 2019 [Event Three]
The mother attended on Dr L with Y. Dr L records that Y was present throughout the consultation of about 15-20 minutes. Y was, as a result exposed to all the adult conversation, including the mother telling Dr L what Y had previously said to her, and the doctor’s advice to the mother about the need for safety and for contacting the police.
The doctor made medical notes for the record on this visit including the following:[50]
mum is stating that child claimed father touched her by stroking in the bath whilst mum was away in [K Town] for trainming between october to november last year
(As per the original)
[50] Exhibit 21.
Assuming this is an accurate statement of what the mother told the doctor it is quite different to the evidence contained in the mother’s affidavit. There was no reference to a belief that the father had touched Y by stroking in the bath while she was away in K Town or at all.
mpt wanting mum tp leave and child did npt want tyo get into bath with dad[51]
(As per the original)
[51] Exhibit 21.
Again there is no evidence from the mother about the child resisting getting into the bath with the father or anything like that.
she alsp said dad took pictures of her in the bath indicatin top her vagina[52]
(As per the original)
[52] Exhibit 21.
The evidence of the mother was not that the child had said to her “dad took pictures of her in the bath indicating top of her vagina”. There was no mention of the bath. The mother asked the child where the father touched her, “He touches my wee wee. He touches here and takes pictures.”
Dr L spoke to the mother about examining the child. The mother declined on the basis that “she felt [Y] was too young and an examination would be too traumatic for her.”[53] The Court notes that the child had been internally examined twice in the previous year, once by Dr L and once by Dr M, both examinations revealing infections which required treatment. The refusal by the mother on this occasion was oddly inconsistent.
[53] Affidavit of Dr L filed 19/05/2022, par 23.
The doctor said she formed the view that the child’s disclosures to Ms Griffiths [the mother] were very serious.[54] Despite that view, the doctor again chose not to make a mandatory report.
[54] Affidavit of Dr L filed 19/05/2022, par 15.
Instead she chose to ask the child questions based on what the mother had told her the child had said.
The implications for the child were serious. First she had been questioned by her mother. Then she was at the doctors, hearing her mother telling the doctor what she, Y, was reported to have said to her mother. Now the doctor asked her questions arising from that information.
In her oral evidence Dr L described the mother and Y “sitting side by side on two chairs facing me”.
The doctor said she spoke directly with Y during the consultation and asked her “Has someone been touching you where you do not want to be touched?” Y told the doctor “Dad has been touching my wee wee.”[55]
[55] Affidavit of Dr L filed 19/05/2022, pars 18 & 20.
The doctor told the mother to contact the police about the allegations.
She also advised the mother that if the child had any more contact with the father she (Dr L) would need to make a mandatory report.
The doctor also made an urgent referral to a child psychologist in K Town to “counsel and assist Y as the result of the interference of her, by her father.”[56]
[56] Affidavit of Dr L filed 19/05/2022, par 29.
The doctor also prepared a GP Mental Health Plan and referral letters to the same psychology practice for the elder child X she “was concerned that she would also be impacted by what had happened [sic] [Y] and may have witnessed these events.”[57] X was not present at the consultation.
[57] Affidavit of Dr L filed 19/05/2022, par 33.
The Court concludes that the appointment with Dr L was a powerful confirmation of two things for the mother, first that Y had been abused by her father and second that she had been directed by the doctor to keep both children away from the father.
The Court also concludes that the appointment would have had a similar impact on Y. Certainly it would have confirmed for her that what the important people in her life wanted to hear from her was that her father had “touched her wee wee”.
Separation of the parties – 26 February 2019
In the morning of this day the mother left the house with the children. Both girls gave their father a kiss before leaving.
After the appointment with Dr L the mother returned to the family home with a friend, Ms N.
Without speaking to the father she packed clothes for herself and the girls. The father says he asked what was happening. The mother told him that she had taken Y to see Dr L and that Y had told Dr L that he the father had been touching her, or touching her wee wee. The father denied any wrongdoing “it did not happen. If something has happened, we need to find out who has done this. Where are the girls?”
The mother advised him that the children were with her mother, and that she was leaving “you can’t see them, it is now out of my hands”.
The mother described the father as follows: “[Mr Soyer] sat down in a chair and looked at the ground in a withdrawn and shameful posture:” saying to her as she was leaving: “I haven’t done anything”. The mother says, and the Court accepts, that the mother did not believe him. His posture, which in the mother’s view revealed him as ashamed “reinforced my belief that he had abused [Y]”.[58] In response, the father denied being withdrawn or ashamed “Instead I was shocked”.[59]
[58] Affidavit of the mother filed 8/04/2022, par 83.
[59] Affidavit of the father filed 15/04/2022, par 9.
The children have not had contact with their father since that date although they went to live close by in the home of the maternal grandmother.
Mother contacts police –February 2019
The mother contacted police and by doing so triggered child protection protocols. The mother was doing what she had been advised by Dr L to do. The police spoke to Dr L but did not obtain a statement from her.
The mother advised the preschool and later X’s school that their father was to have no contact with the children and that an investigation by police was pending. Again the mother was following the advice of Dr L.
Y (and later X) begin attending on Ms O child psychologist –February 2019
The children regularly travelled to K Town to see the psychologist, Ms O, between [..] February 2019 until the mother returned to the former family home in early 2020.
There was apparently no input from the father into the information given to Ms O.
The Court has no information about the therapeutic work undertaken with the children, in particular the premise of counselling and what Ms O was told by the mother or others.
First interview by Joint Child Protection Response Program (“JCPRP”) with Y –March 2019
Y had an interview at JCPRP in early 2019.[60]
[60] Exhibit 4.
The Court notes that the child had been permitted, to bring into the interview room a plastic box containing crunchy food; rice crackers and carrot. Throughout the interview she shredded plastic wrap off the food and then ate it. She was at times hard to hear because she had a mouthful of food.
Y had turned four years that year. She twice incorrectly identified the month of her birthday. She was able to identify the difference between truth and lies.
The interview went on for 45 minutes. The Court accepts the view of the court child expert that a 45 minute interview would have been exhausting for Y.
After about 30 minutes the child started to ask “Now can I go out to Mumma?” and continued to ask that question increasingly often until the interview ended 15 minutes later. She very obviously became bored, restless and stressed as she pressed for permission to leave. She rolled around on the couch and the floor.
She was responsive about general questions, could identify fun things about each parent, and was very familiar about the characters in Peter Rabbit stories.
She complained that it was “not fair” that she was no longer allowed to go to the former family home, “Mummy can go”. At that point she volunteered “I miss Daddy”.
The child agreed that her father took photographs of her and her sister. At one point she said Daddy took photos of her bum, and when questioned about it said she was wearing shorts at the time.
The question was then asked, “Has daddy ever touched you on a part of your body you don’t like?”
It was an ambiguous question but the Court concludes that the child appeared to sense where the questions were going. She responded:
[Y]:Daddy touched sissy’s wee wee.
Det: How do you know that?
Det: I saw him. Because I told mum.
Later she said “sissy touches daddy’s wee wee too”. She denied that this had happened to her.
The interviewer then pressed the child “Is everything the truth you’ve told me today?” The child responded “Can I go out to Mummy now?” The interviewer persisted, but after each of the four repeats of the question about truth telling, the child repeated her request to go to her mother. She eventually was allowed to leave the interview room without answering.
The Court concludes that the child found the questions about “Daddy and wee wee touching” difficult. She had had very recent conversations with her mother and Dr L on the topic.
She and the older child X had already begun therapeutic counselling with Ms O. Y may have made up a story about her sister to divert attention from herself. It could have been an accurate recounting of something she had seen or heard about.
In this interview the child responded to questions, including leading questions. She did not make any spontaneous complaint about her father’s conduct with her.
Advice to mother by police –March 2019
On the day of the interview, whether before or after, the detective [Ms P] who interviewed the children gave the mother some advice. She told her that “if any disclosures occur you should document them using the precise wording and how and who said it and any responses and the location, date and time”. The Court is not at all critical of the advice given. However there is no reference to the advice extending to waiting for the child to make disclosures, rather than questioning her in an attempt to prompt disclosures.
The Court takes the view that the difference is critical. The opportunity for spontaneous statements to be made by a child, about something the child has experienced, is reduced every time the child is presumptively questioned rather than just carefully listened to.
The worst outcome of such questioning is a child saying whatever that child perceives is expected to be said.
The immediate reward for the child is questioners being pleased with the child or at least satisfied with the answers.
The mother followed this advice as she heard it “After this I kept a more precise timeline of events and recording of statements and events and disclosures”.[61]
[61] Affidavit of the mother filed 8/04/2022, par 96.
On the day following the interview with Y, an interview was to be conducted with the elder child X. The mother travelled to Q Town with both children for that purpose. The mother recorded that Y was behaving very differently. She threatened to “bash” her sister and pushed her. She screamed as they all got into the car where she threw herself around, and kicked and screamed for 15 minutes.
This was the second day in a row where Y had been taken to Q Town. It seems likely that her behaviour was related to her experience on the previous day. She must have been conscious of what she had said about X. Perhaps she was fearful.
Interview with X –March 2019[62]
[62] Exhibit 5.
X was aged eight years. She was in Year 2. She presented as a polite, articulate and thoughtful child. Her interview was conducted over 30 minutes.
Probably an explanation had been given to the mother about why X should come in to be interviewed, namely that Y had asserted: “Daddy touched [X’s] wee-wee and [X] touched Daddy’s wee-wee”.
The Court does not know whether the mother was asked not to question X before she was interviewed, but very clearly the mother had spoken to X about something Y said:
Det:I want to ask you about a few things [Y] told me. Do you know about that?
[X]: Mum told me what she said but it’s not true.
Det: [Y] told me something had happened with you and Dad.
[X]: I don’t know about that.
The child was clear to say that her father had not touched her in the genital area, and that Y had not told her anything about the father touching Y in that way. She expressed genuine surprise about what Y had said to the interviewer and her mother. She commented “[Y] makes stuff up”.
Asked about photographs taken by the father she said “he took a photo of us with the horses” (perhaps a reference to horse races which X had spoken about to the detective earlier, although it may not have been). She added that her father mostly took photographs of his vehicles when he wanted to sell them.
X did not make any disclosure of wrongdoing by her father. She described herself as “a little bit sad” about not seeing her father but understood that her parents were separated because “they always fighted.”
March to September 2019
During the six months after the children had been interviewed the mother was focused on Y providing more information about past abuse.
[Event Four]
In early 2019, two days after Y’s interview, the mother was driving with Y in the car. When they passed a police car the mother asked the child if she wanted to speak to Ms P [the interviewing detective] again. The child was firm in her response, “No I don’t want to”.[63]
[63] Affidavit of the mother filed 8/04/2022, par 101.
The mother said to Y “It’s okay to talk to [Ms P]. She is here to protect you and keep you safe”. Y responded, “Daddy touches my wee wee when you’re at work”. The mother asked Y, “are you able to tell [Ms P] that?” There was no response from the child and the mother said no more.[64]
[64] Affidavit of the mother filed 8/04/2022, par 101.
The Court concludes that despite her best intentions to be protective of the child the mother was bringing pressure to bear on her to provide information.
[Event Five]
In March 2019, the mother was in the car with her mother and both children. Y showed what her mother thought were signs of anxiety and stress. It was a reasonable conclusion. The child is described as having “bent down, with her chest on her thighs and her feet turned in and her hands over her face.”[65] When the mother asked the child if she was okay, the child said she was scared of the dirt road, of the place they were travelling through, of the trees and of the police.[66]
[65] Affidavit of the mother filed 8/04/2022, par 102.
[66] Affidavit of the mother filed 8/04/2022, par 102.
On the evening of that day Y asked her mother “mummy is daddy in trouble?” The mother says the following conversation occurred:[67]
Mother: Why do you ask sweetie?
[Y]: Because daddy touched my wee wee and it hurt. He had soap.
Mother: Do you want to tell me more?
[Y]: He did it in the bath and in his [vehicle]. Not the new [vehicle], the old [vehicle]. Then I see [Dr L].
[67] Affidavit of the mother filed 8/04/2022, par 103.
This statement is similar to the child’s first statement made a year before in April 2018, which was “Daddy touches my wee wee in the [vehicle]”. It is the first time Y refers to being hurt, to soap and to the bath.
There is no way to understand what the child was referring to on this occasion: hygiene; bathing; nappy changing; her consultation with Dr L; or none of the above.
In March 2019 Dr L put both Y and X on mental health care plans for their counselling appointments.
On our around this time, X asked to use her iPad. The mother told her that her iPad was “at [the former family home]”. After some undisclosed conversation about iPads and telephones the mother asked Y a direct question:[68]
Mother: When daddy took pictures of you and pointed to your thigh, what did he use?
[Y]: Here. He took pictures here. [[Y] pointed at her vagina when she made this statement].
Mother: What did he use? His mobile phone?
[Y]: He use iPad.
[68] Affidavit of the mother filed 8/04/2022, par 105.
The child was clothed at the time she pointed at her vagina and said “Here. He took pictures here.”
Subsequently, the mother went to the former family home and asked the father for the iPads. He gave her an iPad which he said did not work, which on the evidence of the mother proved to be true. There was some significance for the mother in a second iPad not being produced.
Meeting with officers from DCJ –April 2019
In April 2019 the mother attended a meeting at DCJ for information on how to help the children feel safe and secure.
The prospect of a second interview for Y – April 2019
The detective from JCPRP [[Ms P]] had foreshadowed a further interview for Y.
, The mother told Y that “[Ms P] was coming to Mummy’s work tomorrow to say hello”. Y reacted. She put all her toys in a heap on the floor. She ran round the house. Later in the evening she became angry with her mother and pushed her.
Nothing she said or did is consistent with wanting to speak to the detective again.
[Event Six]
The day after the interview Y was complaining to her mother about the prospect of going away camping with the maternal family, “I don’t want to go to stupid camp”.
Y is reported to have said “stupid camp, you know when we went to Victoria to [Mr R’s] house we stayed in the tent. Daddy touched me in the tent and then he took photos and you were asleep. He touch me and he take pictures I don’t want to go to stupid camp”.[69]
[69] Affidavit of the mother filed 8/04/2022, par 116.
The mother told Y that her father would not be coming camping. Y declared that she would stay with the maternal great grandmother. Finally she was cajoled by the promise of collecting insects and going for treks.
The mother reported that Y was referring to a trip by the parties and children in late 2018 to Victoria to visit friends. The evidence of the mother was not of the family sleeping in a tent as Y is reported to have said, but in a trailer with a kitchenette and lights at the front of the friends’ home.
The evidence of the father is that on that trip he slept separately from the mother and children: “They slept in a tent whereas I slept in a swag”.[70]
[70] Affidavit of the father filed 15/04/2022, par 121.
The evidence of the parents conflicts. What is clear on the evidence of both parents is that the mother was present with the children at night when they were away on a holiday.
This incident appears to be one where Y was using a complaint about the father to avoid doing something she was not keen to do. There is no revelation of behaviour amounting to sexual abuse.
Second interview for Y postponed –April 2019 [Event Seven]
In April 2019, the mother took Y to Q Town for a second interview. On arrival the interviewing detective told the mother “I have spoken to my boss and we feel we won’t proceed with this interview today”. The decision was to allow more time to pass.
On the trip home from Q Town the mother had a conversation with Y in the car. Y volunteered “There’s a monster in that forest. I’m scared of that forest. I’m not lying to you mum. Am I in trouble?” and the mother responded, “You’re not in trouble [Y]”.[71]
[71] Affidavit of the mother filed 8/04/2022, par 120.
The mother then, on her own evidence, said to the child:[72]
Mother: I believe you’re scared of the forest. Are you scared of the forest because of daddy?
[Y]: Yes. Daddy took me to the forest so you and Sissy [[X]] wouldn’t see.
Mother: [Y], did daddy do anything to you other than touching you?
[Y]: Yes he used soap and toys and paper towels. It hurt. He took photos.
Mother: Did he do anything else?
[Y]: He put me in the bath and put poo in me and washed it out. Eeewhh. I’m scared of daddy, but I miss him.
[72] Affidavit of the mother filed 8/04/2022, par 120.
In her affidavit the mother described this incident as Y having initiated the conversation “and I allowed her to speak so she felt she had been heard.”[73]
[73] Affidavit of the mother filed 8/04/2022, par 121.
The Court concludes that at the time of the conversation in April 2019, and still when she was giving instructions for the affidavit, the mother underestimated the extent to which she initiated and directed the conversation in relation to Y and the father. Y did not mention the father until the mother did. Thereafter the mother led and Y followed.
The question “Are you scared of the forest because of Daddy?” introduced the idea of the father being part of this story.
The question “Did Daddy do anything to you other than touching you?” presented to the child the mother’s view that the father had been touching her
The question “Did he do anything else?” was an open question which led to a combination of comments which could be snippets of several events or could have been invented.
Young as she was Y probably understood that daddy was in trouble.
The evidence does not support a finding of sexual abuse.
Provisional Apprehended Violence Order –April 2019
In April 2019, police issued a provisional Apprehended Violence Order (“AVO”) for the protection of the mother and children from the father. That order was not in evidence. The father reported that the application for a final order was repeatedly adjourned over the following 11 months, until a hearing was set for 6 March 2020.
Father vacates the family home –April 2019
In April 2019, the father left the former family home. The father reports that he was asked by police to leave. The probable explanation is that he had become subject to an AVO which restrained him from coming within 50 metres of where the mother and children lived. Since they were living in the home of the maternal grandmother close by away it was a pragmatic decision for the father to go.
Mother visits family home –April 2019 [Event Eight]
On the day after the father left the former family home the mother collected Y from preschool and took her to the former family home. The mother provides no particular explanation for why she did so.
The child, aged four years, is reported to have made a range of quite adult sounding comments about moving the pets, selling the former family home, “He [the father] can live with someone else, and they say no” and “Daddy mess is still inside there”. She is also said to have made another complaint “he was touching my wee wee and pulling my pants down” and the comment “Yay I’m so excited Daddy isn’t here”.[74]
[74] Affidavit of the mother filed 8/04/2022, pars 122-123.
If the child made those comments she may have heard adult conversation. The repetition of a phrase she had by then used many times does not constitute evidence of sexual abuse.
Mother and children return to live in the family home –April 2019 [Event Nine]
Later in April 2019 the mother moved with the children back to the former family home. There was no evidence to the effect that the mother was unable to remain living with the maternal grandmother. The Court accepts that the mother had come to believe that the father had sexually abused Y, perhaps both children. In that context the move home appears insensitive.
The mother reports that on the first night at the former family home Y wet the bed, had nightmares, said she was scared of both her father and … (who the father described as a character in a children’s story but the mother regards as a sinister unknown), and complained of feeling sick.
The mother noted “these things had ceased or reduced after we left [the former family home]”. The mother apparently attributed Y’s fears and bedwetting on that night to past conduct of the father.
The Court concludes that the mother was strongly focused on keeping the children safe and eliciting evidence of the father’s misconduct but was not attuned to how much turmoil Y in particular was experiencing. Y was probably worried both about herself being in trouble, and her father being in trouble.
That she was upset by a return to the family home having not seen her father for two months is unsurprising especially as so many conversations in those two months had been about what Daddy might have done.
Encouragement of Y to be interviewed –May 2019 [Event Ten]
Y began experiencing stomach aches. Her mother would massage her stomach.
The mother elicited from Y that she was worried, had been for weeks and it was because “Daddy touches my wee wee.” The mother reassured the child that she was safe, and she was brave, ending with “can you tell [Ms P] [the detective] your story?”[75]
[75] Affidavit of the mother filed 8/04/2022, par 125.
Y was adamant “No I never want to talk to [Ms P].” The mother asked Y “why don’t you want to tell [Ms P]?” and Y responded “because she is a police officer and daddy said police officers put people to jail”.[76]
[76] Affidavit of the mother filed 8/04/2022, par 125.
The mother reassured the child that police officers do not put little children in jail but rather keep them safe.
The child was not reassured “mummy, I’m scared of police officers. I don’t want to tell [Ms P]. My belly hurts. I want sissy to come”.[77]
[77] Affidavit of the mother filed 8/04/2022, par 125.
The mother thereafter notified DCJ of the disclosure, as she perceived it, with a view to a second interview being arranged.
The mother did not place any significance on there being no disclosure of new events. Y had repeated what she had first said more than a year ago “Daddy touches my wee wee”.
The mother had not been willing to simply listen. She had immediately brought up talking to Ms P. The impression created is of Y caught up in something which she could not fully understand or control and feeling fearful.
Counselling for parents April/May 2019
In May 2019, the mother was referred by Dr L to a psychologist for counselling: “The purpose of the counselling was to assist and support me to manage the shock of [Y’s] disclosure and the impacts on [Y] and [X].”[78]
[78] Affidavit of the mother filed 8/04/2022, par 112.
The father’s general practitioner advised him to see a counsellor to assist him to cope with not seeing the children. He did so commencing in April 2019.
X makes a disclosure for Y –June 2019 [One Event for X]
In June 2019, the mother and children were at the home of the maternal grandmother. Y was in the bath. X spoke to the mother in the lounge room.
X is reported to have said:[79]
[X]: Mum, it’s true, [Mr Soyer] [the father] was touching [Y]. He filled the bath up and bubbles kept getting higher and higher.
Mother:Did you see anything?
[X]: [Y] told me. Am I in trouble? I am telling my truth.
Mother: No, you’re not in trouble, it’s always important to tell the truth.
[79] Affidavit of the mother filed 8/04/2022, par 127.
There is no further evidence from the mother about what, if anything, she said to Y or anyone else. On the face of her affidavit the mother did not say or do anything about X’s story.
It is evident that, for X to have spoken to her mother in that way, there had been a prior conversation between the two girls “[Y] told me”. Either Y had asked X to tell the mother or X had offered.
This incident too suggests that Y felt under pressure to “come up with” information for her mother.
As a secondary consideration X was no longer referring to her father as “dad” but as a nickname. Perhaps foreseeing criticism for permitting disrespectful language, the mother included information said to have come both from Ms O and the mother’s psychologist, that it was “common for children who were abused to call the perpetrator another name than ‘dad’ as it helps them disentangle themselves from the trauma and the person who inflicted it on them.”[80]
[80] Affidavit of the mother filed 8/04/2022, par 128.
The Court infers from this evidence, if it is accurately stated by the mother, that both Ms O and the mother’s psychologist have been operating on the assumption that the children had been sexually abused by their father.
Mother and children move out of family home – mid 2019
In mid-2019, the mother decided to look for employment closer to K Town. She described herself as motivated to leave the area by what she perceived to be gossiping by the father and the community about herself and the children, and by the convenience of being closer to Ms O’s rooms for the children’s counselling. The mother was supported in this decision by Ms O who told her that the children were unhappy living at the former family home.
The mother found work. She and the children moved out of the former family home and stayed with family and friends. X was probably enrolled at a new school. Y may have started at a new preschool part time whilst continuing two days per week at her usual preschool. It is unclear. The mother dropped them off at school. There was an hour’s drive each way for her to get to work.
The mother and children returned to the former family home each alternate weekend.
Preschool incident –August 2019
In August 2019, the mother was advised by the director of Y’s preschool that Y had recently pulled her undies and pants down and was laughing and twisting her hips in front of a group of children.
The mother emailed Ms O and asked for protective behaviours and body awareness to start in counselling and reports that Ms O said she would start that process.
By then the children had been in counselling with Ms O for five months. The Court infers that protective behaviours had not been part of the counselling process.
The Father’s Day card – 2019
In 2019, X told her mother that she had cried at school when they made Father’s Day cards. Her friend offered to deliver the card to the father. She told X that the father had had dinner with this friend’s family and slept over. The mother drew the conclusion that the father “was trying to befriend people close to me and the girls to stay informed of our whereabouts and what we were doing.”[81]
[81] Affidavit of the mother filed 8/04/2022, par 138.
The father gave evidence that there had been a reasonably good relationship with that family prior to separation, the two girls being friends at school. After separation the friendship continued with the father but not the mother.
The significance of this issue is that X told her mother that she did not want to hear anything about the father. Asked why, she said “I don’t care about him. I don’t want to know anything about him”.[82] She described the drawing she had done of her father as “tickleysaurus”. When challenged about that the child gave a description of the father tickling her which the mother interpreted negatively with respect to where she had been tickled. The father agreed that he tickled the child, never on inappropriate areas of her body.
[82] Affidavit of the mother filed 8/04/2022, par 137.
If the mother contemplated that X may have felt hurt or left out when she heard about her father staying with her friend’s family she did not say so. Instead she reported the incident to the police and was advised to have the school contact the parents of the child and ask for the card to be returned to her for delivery to police. The mother followed that advice.
Y’s drawing at preschool –August 2019 [Event Eleven]
In August 2019, the mother picked up a report about Y from the preschool and asked to look at her books and drawings.
A teacher had previously spoken to her about Y’s drawing of the mother drowning in a river. At that time, […]May 2019, the mother had responded that she had once jumped into a pool to save a child.[83]
[83] Affidavit of the mother filed 8/04/2022, annexure EMT1, page 4.
The mother was shown the drawing by Y of the mother drowning.
What followed was the mother making links and coming to conclusions which had profound consequences for Y:[84]
It then occurred to me that there are many trees near […] our [former family home], including [by the riverside]. It resembles a forest and I felt that there may be a connection to [Y’s] allegations of abuse. I decided to take [Y] to the river where the boat was on our way home.
[84] Affidavit of the mother filed 8/04/2022, par 145.
The mother drove to the former family home that afternoon and filmed and recorded Y on her mobile telephone as they walked to the riverbank.
The mother must have understood that filming and recording Y in that way was not consistent with what she had been told by the interviewing detective to do nor by her own psychologist. She was not waiting and listening. She was questioning Y in a directive way.
There are three very brief videos.[85]
[85] Exhibit 7.
There is no evidence of what was said before filming started. The mother took the child to the riverbank area close to the former family home which the mother had decided was the forest.
Film One
Mother: [Y], did anything happen to you here?
[Y]: Yes.
Mother: What happened?
[Y]: He touched my wee wee.
Film Two
Mother: Is this the forest or is there another forest?
[Y]: The forest has the junk Daddy chucked in.
Film Three
Mother: You had a dream about the forest?
[Y]: There was a crocodile?
Mother: What did the crocodile do?
[Y]: Eat Daddy.
Mother: How did that make you feel?
[Y]: Happy.
Y’s prevailing emotion as she was filmed appeared to be uncertainty.
There was no new disclosure, no revelation. It is probable that the child made up the crocodile story to please her mother knowing how much her father was no longer welcome in their lives.
[Event Twelve]
On the following day the child was showing signs of distress. The mother described her as extremely emotional. She was humming, rocking, crying and annoying her sister. When questioned by the mother she said she was scared and did not like the former family home.
It is highly likely that the experience on the day before of being questioned and filmed near the mangroves, then quickly leaving, had frightened her. There could be other explanations but none are available on the evidence.
A long conversation –September 2019 [Event Thirteen]
On this day Y is said to have started a conversation in which she unleashed a stream of complaints about the father in relation to herself and to animals.[86] One example is:
He hurt animals he hurt me. He hurt cats he puts them in [an animal trap] and spins them around and around and bash them on the ground. He hates cats. He is mean to animals Mum…He hurt [our pet]…He hurt my wee-wee he put eating cream in it and it hurt. I said ouch and then daddy say ouch. My wee wee was stinging him…
[86] Affidavit of the mother filed 8/04/2022, par 156.
There was a lot more. Towards the end, the child told her mother what the mother had been hoping to hear:
…Mum I tell [Ms P] [the detective] and [Ms O] [[Y’s] psychologist] and you know [Ms P’s] friend [the co-interviewer perhaps]…They keep me safe. So daddy never see me again. He is mean to animals. You and [Mr S] [the preschool director] keep me safe…
The conversation ended with:
Mother: Are you happy to see [Ms P] tomorrow?
[Y]: After preschool mum, I talk to [Ms P].
The interview for Y was due to take place the following day. The mother had known that. There is no information about whether or not Y had been told.
There is a strong sense of Y wanting to please her mother, to do and say what it took including saying whatever bad thing about the father she could, based on her own four year old ideas of what “bad” was, namely hurting animals and burning their pet’s blanket.
It is highly unlikely that the father had been cruel to animals in front of Y before February 2019 but the child had said nothing about it to her mother at the time, or in the seven months since separation.
Second JCPRP interview with Y –September 2019[87]
[87] Exhibit 6.
Less than a week after the filming at the river Y was once again interviewed by Ms P the detective.
Y certainly knew why she was at the interview:
Det: Do you know why you are here today?
[Y]: Daddy touched my wee wee.
Whether the detective knew about the mother taking Y to the riverside and questioning her, five days prior, is unknown. The detective did know about something happening in a boat. When she told Y that she had been told about the boat, Y responded “he had two boats he touched me in the yellow one”.
Likewise, when the detective asked did something happen in the father’s vehicle Y answered no. When the detective then said “I’ve been told something happened in [the father’s vehicle]”, Y immediately answered “He did. He touched me in [the father’s vehicle]”.
The same answer was given by Y to “Did anything happen in the shed?”
The impression was of Y trying hard to get the answers right. The clearest example of Y looking for clues and cues was this:
Det: Were you told not to talk about it?
[Y]: I don’t know.
Det: I’ve been told; when Daddy told you not to talk about it, did he say why?
[Y]: He said why.
At the end of the interview Y was asked whether what she had said in her previous interview about “Daddy and Sissy” had happened. Y said no.
The interview at best would be considered inconclusive. There was no suggestion this time of a further interview of the child.
Police did not interview the father.
There is no evidence of the mother reassuring the child that there would be no more questions.
The mother continued to be alert to the possibility of further evidence emerging.
In October 2019, the mother found two computer disks on the floor of the shed on the former family home. The mother examined the disks and found pictures of young girls, perhaps early teenagers, “who were clothed, however they were staring directly at the camera and had sexually provocative poses.”[88] There were also photographs of a little girl. The mother introduced the material into these proceedings. It is consistent with the mother expressing to the counsellor that she no longer felt she knew who the father was.
[88] Affidavit of the mother filed 8/04/2022, par 161.
In November 2019, the mother took the disks to JCPRP at Q Town.
In this trial the father denied any knowledge not only of the disks, but the young girls.
Due to diligent investigative work by the solicitor for the father the disks were revealed to belong to one of the children of the father’s prior partner. The boy had been given permission by the father to use the computer for homework. He and his friends took the opportunity to communicate with girls their age. The little girl was the granddaughter of the father’s former partner with whom he is still on good terms.
The relief over the material not relating to the father, expressed by the mother through her counsel and on her face on display in the Courtroom, appeared to be heartfelt.
Criminal charges ruled out – November 2019
In November 2019 the father was advised by police that there would be no criminal charges against him.
ADVO –March 2020
In March 2020, the application for a final order was listed for hearing. An order for a two year period was made. The father consented to the order without admissions.
The Court infers that the final AVO was made to ensure that the children would not be exposed to conflict and the parties would be kept apart in the context of a small community.
March 2020 – Lockdown
During the lockdown resulting from the spread of Covid-19 the children were home schooled by the maternal grandmother. The mother worked in T Town through the week and spent weekends with the children in the grandmother’s home.
New relationship for mother – May 2020
The mother and her now partner Mr F had met and become friends in 2018 through the mother coaching the sports team in which Mr F’s daughter played.
Early in 2020, the mother contacted Mr F about the leasing of farm acreage at J Town. Mr F began grazing stock there. By May 2020 the mother and Mr F had formed a relationship.
Court proceedings commence – June 2020
On 7 June 2020, the mother initiated property proceedings, in what was then the Federal Circuit Court of Australia. Likely, the fact that her new partner Mr F was grazing stock on land jointly owned by the parties, was a factor in that decision.
Complaint by mother to police - August 2020
In August 2020 police contacted the father about a complaint by the mother that he had in past weeks intimidated her in U Town. The father conceded visiting a friend in U Town from time to time but denied seeing the mother there. He supplied telephone records, toll accounts and tags to police. No breach was established.
In September 2020, the father filed a Response, including proposed parenting orders in addition to property. This was the first formal indication that the father was hoping to spend time with the children.
In November 2020, the mother filed a Reply with respect to parenting, which was clear to propose that the status quo, no contact, should continue to age 18 for both children.
Transfer to Family Court of Australia (now known as the Federal Circuit and Family Court of Australia - Division 1)
In early 2021, the children began seeing another psychologist Ms V in the Sexual Assault Unit in B Town. They were continuing to see her, each child fortnightly, at date of trial. There is no information before the Court about the premise or goals of therapy. Again there was no input from the father.
On 11 February 2021, the matter was transferred to this Division of the Court.
In March 2021, the former family home was flooded. The mother and children moved to stay with Mr F. They later returned to clean up and live there again for a time.
Magellan Report - August 2021
The report concluded that the children were safe in the care of the mother. DCJ did not identify actual sexual harm, DCJ continued to hold concerns that sexual harm could have occurred. DCJ identified the father as a person of interest.
The Notice of Risk filed by the mother inNovember 2020 did not prompt intervention by DCJ in these proceedings, nor further investigation.
Mother and Mr F begin living together permanently - late 2021
In late 2021, the mother and children returned to living with the mother’s partner, Mr F, on his property. A few weeks later the child of their relationship Z was born.
Settlement of property dispute –December 2021
The parties reached agreement about adjustment of interests in their shared property as a de facto couple.
The parties wound up their commercial partnership. The mother retained the regional property including the family home, on condition she refinanced the mortgage debt and paid an agreed sum to the father.
Police withdraw application to extend ADVO – April 2022
When the AVO was due to expire [in March 2022] the mother applied to have protective orders extended.
In April 2022, solicitors for the father were advised by NSW Police that with regard to the application for extension for a further three years (to March 2025), “All evidence held for the matter has been reviewed and I wish to advise that the application has been withdrawn by police”.[89]
[89] Affidavit of the father filed 15/04/2022, annexure B.
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Griffiths
(a)Affidavit of mother filed 8/04/2022;
(b)Affidavit of Mr F, the mother’s partner, filed 8/04/2022;
(c)Affidavit of the maternal grandmother, filed 8/04/2022;
(d)Affidavit of Dr L, the family general practitioner, filed 19/05/2022;
The Respondent Father – Mr Soyer
(e)Amended Response to Final Orders filed 7/03/2022;
(f)Affidavit of father filed 15/04/2022;
Reports
(g)Family Report prepared by Ms W dated 3/12/2021;
(h)Magellan Report dated 10/08/2021;
(i)Children and Parents Issues Assessment (“CAPIA”) prepared by Ms W dated 28/05/2021.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if children have been exposed to family violence and may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as allegations of sexual abuse and the likelihood of future harm.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The parents agree that the mother should have sole parental responsibility. That represents an acknowledgment by the father that the mother has the capacity to meet the children’s needs and care for them. The mother was the parent who made most decisions about the children during the relationship, usually consulting with the father who trusted her judgment. The evidence supports a finding that both parents love the children and are concerned for their welfare.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
If it were the case that a finding was made of sexual abuse of the children or either of them then there would be little to no benefit in a meaningful relationship between the children and the father being restored or promoted. Such criminal conduct by the father would be indicative of self-absorbed disregard for the physical and emotional damage he had perpetrated.
For the reasons discussed, the Court has concluded that on the balance of probabilities the evidence before the Court does not support a finding that sexual abuse has occurred.
If the Court considered that the father represented a risk of harm to the children which could not be safely ameliorated, again there would be little value in restoring the relationship which could not develop and flourish.
Considering all of the evidence about the history of the relationship and the conduct of the father, the Court concludes that the father does not represent a risk of harm to the children in the form of sexual abuse or at all.
During the relationship he cared for the children together with the mother. After separation there was an AVO in place from April 2019 to March 2022. There was no breach of the order. The father does not have a criminal record. The children did have a meaningful relationship with the father. He cared for them emotionally and physically. He attended the children’s preschool and school and their sporting events.
The relationship has fallen away between Y and her father mainly because she has not seen him or communicated with him for more than three years. There is also the fact that the mother believes that Y has been sexually abused by the father and perhaps Y believes that herself. Both children have been permitted to speak of their father dismissively, using disrespectful nicknames for him, not “Dad”. They say they do not wish to see him. They appear to have forgotten that they loved him, although they may still hold those feelings. The children would fully understand that their mother does not want them to have anything to do with the father.
However if the present situation continues the children will grow up believing that the father was abusive and a threat to them although they may not be able to articulate why that is. There is a risk of emotional harm in holding a false belief.
The court child expert sounded a warning in her oral evidence about emotional harm to the children if they continued to hold the view, despite Court findings, that they had been abused.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The mother presses for protective orders which would restrain the father from contacting, approaching or communicating with herself and the children. Such orders are consistent with her beliefs.
The mother has a new partner and they have a child together. The mother and Mr F plan to marry. The mother regards her partner as a better father to the children than their own father was, and is very much content with him as their stepfather. They are free to call Mr F, “Dad”.
After separation there was a protective order which has now expired. The order was put in place by consent to regulate the father coming in contact with the mother and children. The order was valuable as feelings ran high in a small community.
The father was not charged with any offence and will not be. Police made a decision not to extend the protective order beyond March 2022.
There is no evidence of misconduct or risk which would justify a restraining order.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Both children were seen by the court child expert in May 2021 during a children and parents assessment. Z was ten. Y was six years.
The children were interested to know that their father had spoken to the court child expert and whether their parents had been seen together. X expressed concern that they would fight if they were together and that the father would yell at the mother.
The children had not seen their father at all for more than three years. They both referred to him as “[Mr Soyer]”.
X was adamant about not wanting to see the father “because of what he did to [Y] and he scares us because he’s angry.”[90] Her presentation was assessed as “sombre and worried”. That demeanour is very different from the cheerful and unconcerned presentation of X in March 2019 when she was interviewed by JCPRP.
[90] Children and Parents Issues Assessment dated 28 May 2021, par 22.
Y was assessed to be more relaxed and able to smile when referring to the father. Y had a visual memory of her father’s appearance, which she could describe….[91]
[91] Children and Parents Issues Assessment dated 28 May 2021, par 19.
In December 2021, interviews were conducted by TEAMS software for a Family Report.
Y was described as curious about her father. She wanted to know why the father wished to spend time with her, having learned from the child court expert that he did.
She was assessed as being without any real conviction when she said she did not want to spend time with her father. She explained that it was only because “I love Mum more than I love him.”[92]
[92] Family Report dated 3 December 2021, par 78
She reflected that her father got angry at her mother. She denied that the father got angry with herself or her sister. She was clear to say she did not want to see her father but not clear about why: “I don’t know. I just don’t want to see him.”[93]
[93] Family Report dated 3 December 2021, par 80.
X too did not want to see her father but was much clearer about why: “Because I don’t like him.” She described the father as a “bad person” and that he had done “bad stuff”. When asked to elaborate on “bad stuff” she identified him yelling [at her], hurting [Y’s pet] and being mean to Mum. She was assessed as showing no signs of stress.[94]
[94] Family Report dated 3 December 2021, pars 90-91.
X said if she had to see her father she would do as her mother told her but at the centre she would not follow directions from staff.
The view of the court child expert was that such views were likely to have been influenced by adult conversation. It must be so, for X to understand the operation of a supervision centre.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
Both children enjoyed a good relationship with both parents until separation. The relationship with the father has diminished and deteriorated since.
The children continue to have their most important relationships with their mother and each other. Mr F, the new baby Z, and Mr F’s three older children have grown in significance for the subject children.
Mr F gave evidence. He impressed as an affectionate and active stepfather. After the family report interviews in November 2021 Y told Mr F that “he [the father] touched my private parts and it hurt”. He inferred that the father has sexually interfered with Y and felt both confronted and the need to be protective.
The Court accepts his evidence that in the event supervised time was ordered Mr F would assist in any way he could including driving to contact centres.
The children have a very close and important relationship with the maternal grandmother and the extended maternal family.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The father has at all times wished to spend time and communicate with the children.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The orders will not create separation of the children from anyone presently important to them.
It will be a significant change to begin seeing the father again.
If the children come to enjoy spending time with the father it will be particularly important that they are free to express those feelings and are protected by the mother from the mother’s own fears and beliefs.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother has in her own view acted protectively. From February 2019, the mother began questioning Y and putting pressure on her to answer questions and to reveal more information. Y strongly resisted speaking to the interviewing detective after her first interview. She likely understood that her information about “Daddy and [X]” had not been well received, had not been believed.
Whatever it was that prompted Y to make her first simple statement as a three year old in April 2018, the telling and re-telling of the story became something bigger than she could control.
Six months later, in her second interview, she was readily led to answers, having been questioned during that six month period by her mother, Dr L, the psychologist and the detective previously.
The mother meets the needs of the children well, but in this respect her beliefs and fears have driven the narrative rather than Y herself. The Court has concluded that the mother came to hold genuine fears and beliefs about the conduct of the father.
For that reason, and because of the very lengthy period of time which has elapsed since the children saw their father, orders for time and communication do not extend to overnight time, weekends and holidays. It is the view of the ICL, with which the Court agrees, that the mother would be unable or unwilling to comply with the orders now, if much more substantial orders for weekends and holidays, were already in place for the future.
However the Court is satisfied that the mother has the capacity to comply with orders and to assist the children to not only attend for time with the father but to appreciate getting to know him again.
The best outcome for the children is that they gradually restore the relationship between themselves and the father and that there is natural progression with respect to time, by agreement between the parties. Time with the father in school holidays should be considered as a goal to work towards.
The alternative to natural progression would be a further application by the father for more time.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The parties in this matter are very different personalities.
The mother is an intelligent tertiary educated woman who appears to revel in new challenges, taking up opportunities and spending as much time as possible with family members and close friends. She is sociable, articulate and determined. A force to be reckoned with.
The father asserts and the mother denies two things. First, that the mother was in the habit of drinking to excess two or three times per week during the relationship. Next, that the mother would sometimes walk around the house naked and Y too would occasionally take off all her clothes. Nothing turned on these unresolved disputes.
The father is an intelligent highly skilled man who has run his own business and is resourceful at finding paid work. He grew up in a regional area. He has agricultural skills.
The father too values family relationships. He undoubtedly loves and misses his two children. He has drawn on his family members for support since separation.
The father is a naturally reserved and somewhat taciturn man. The mother is expressive and spontaneous.
The children are now in Year 5 and Year 2 at school. They have changed schools more than once but are now in a stable situation and well engaged at home and in their community. Having the father back in their life will provide them with real information about him, his strengths and weaknesses. At present they are caught up in generalised negativity not drawn from their own experience.
If the child is an Aboriginal child or a Torres Strait Islander Child
The children are Aboriginal children through the maternal line. The country and culture of the mother is profoundly important to her and will therefore be carefully and thoroughly imparted to the children. The mother has had a close connection with her own mother and grandmother in that same way.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The parents both worked hard in paid work and shared the raising of their children for many years. They took the responsibilities of child raising seriously. The father has paid child support as assessed.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
After one year of a provisional order being in place, a final ADVO was made in March 2020, for a period of two years. The father consented to the order being made, without admissions of wrongdoing.
The order was for the protection of the mother and the two subject children by imposing restraints on the conduct of the father and requiring him to stay away.
There are no allegations of family violence raised about the conduct of the father in relation to the mother prior to separation.
There is no basis in the evidence for a finding that the father was violent or confrontational with the children or the mother. The mother reported to the court child expert that the father “was never physically violent, but he was verbally abusive to her in front of the children”.[95] There are no examples of such verbal abuse in the affidavit of the mother.
[95] Children and Parents Issues Assessment dated 28 May 2021, par 29.
During her interview in March 2019 with JCPRP, X was asked what happened when her parents were fighting. She said “they get a little bit serious”.[96]
[96] Exhibit 5.
The evidence of the mother was that the father “did not stop me seeing my family and friends”.[97] Her complaint about him was that he did not engage with her family and friends in the way she wanted him to. He did not talk to people readily. He watched television when the mother was chatting to visiting family members. He was not extroverted and sociable.
[97] Affidavit of the mother filed 8/04/2022, par 27.
The mother described him as socially awkward and cold. He saw himself as being agreeable towards the mother’s family, then withdrawing to allow them to all talk together.
The father describes as tending to avoid conflict. If he thought an argument might develop between the mother and himself he would go to bed.
The father has at all times denied assaulting or hurting the children.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The children have had no contact at all with the father for more than three years.
If orders were made for no time and communication with the father there is little likelihood of any further proceedings being commenced. One or both of the children might make contact with the father as young adults.
Orders for time and communication may well lead to further proceedings based on the mother’s view that the children are not safe in the care or even presence of the father.
An order for limited time and communication if that goes well may lead to an application by the father to expand the orders if the parents do not agree for that to happen.
In those circumstances it is not preferable to make the order least likely to lead to further proceedings.
Any other fact or circumstance that the court thinks is relevant
The mother has arranged for the children to have sequential counselling by two psychologists for the past three years.
The Court has found that the evidence does not support findings of abuse of the children nor of a future risk of harm from the father. That does not mean that therapy must inevitably cease. It may mean new therapeutic challenges. The children have experienced the sadness of their parents separating, not seeing their father for more than three years and most likely believing that the father is not a safe person for them to know. Now there are orders for the children to restore their relationship with the father.
In the event the mother considers that this therapeutic relationship should continue the psychologist will need to be provided with these orders and reasons. Provision is made for either parent to do so. The mother will be required to authorise the psychologist to receive from the father relevant information about his knowledge of the children and the history of his relationship with them.
By agreement the mother has the authority to make the decision about ongoing psychological therapy but if it continues, for the sake of the children, further information must be supplied.
SUMMARY
Orders are made for time and communication between the children and the father and for provision of information about the children for the reasons set out above.
I certify that the preceding three hundred and ninety-five (395) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 5 August 2022
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