Harrick and Galea

[2013] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRICK & GALEA [2013] FCCA 2027

Catchwords:
FAMILY LAW ̶ Whether child sexually abused by father  ̶  whether children at risk of sexual abuse by father  ̶  whether parents should have equal shared parental responsibility.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

W and W (Abuse allegations unacceptable risk) [2005] FamCA 892, [2005] FLC 93¶235
N and S and the Separate Representative (1996) FLC 92-655
M and M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979

Applicant: MS HARRICK

Respondent: MR GALEA

File Number: DGC 1471 of 2012

Judgment of: Judge Phipps

Hearing dates: 5,6,7,8,9 & 12 August 2013

Date of Last Submission: 12 August 2013

Delivered at: Dandenong

Delivered on: 29 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Kent-Hughes

Solicitors for the Applicant: Tyler Tipping & Woods

Counsel for the Respondent: Mr Grant

Solicitors for the Respondent: Warren Graham & Murphy

Counsel for the Independent Children’s Lawyer Ms Brennan

Solicitors for the Independent Children’s Lawyer O’Halloran Davis

ORDERS

1. That all previous orders are discharged.

2. That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2011.

3. That the children live with the mother.

4. That the children spend time and communicate with the father as follows:

   (a)Each alternate weekend from 6.00pm Friday until 6.00pm Sunday commencing 6 December 2013;

   (b)Commencing with the first school term holidays in 2014 half school term holidays as agreed between the mother and the father and if not agreed the second half;

   (c)Commencing with the 2014/2015 summer school holidays on a week about basis so that the children live with the mother during the last week of the school holidays;

   (d)For a period of two hours as agreed between the mother and the father on each of the children’s birthdays.

5. That at Christmas the children shall spend time with each parent as follows:

   (a)In the year 2013 and each alternate year thereafter with the mother from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the father from 2.00pm Christmas Day until 2.00pm Boxing Day;

   (b)In the year 2014 and each alternate year thereafter with the father from 2.00pm on Christmas Eve until 2.00pm Christmas Day and with the mother from 2.00pm Christmas Day until 2.00pm Boxing Day.

6. That commencing with the first school term holidays in 2014 the children’s time with the father pursuant to paragraph 4(a) is suspended during all school term and summer holidays.

7. That changeover of the children between the parties take place at (omitted) in (omitted).

8. That the parties maintain a communication book for the purpose of exchanging messages about the children.

9. That the father is authorised, at his own expense, to obtain copies of school and kindergarten photographs, school reports, newsletters and the like and to attend the school and kindergarten activities normally attended by a parent.

10. That the mother is restrained by injunction from asking either child questions about the behaviour of the father during the time the children are spending time with the father and from recording the children by any means at any time the children are making statements about the behaviour of the father.

11. That the order appointing the Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 1471 of 2012

MS HARRICK

Applicant

And

MR GALEA

Respondent

REASONS FOR JUDGMENT

1. Ms Harrick, the mother, and Mr Galea, the father, have two children X born (omitted) 2010 and Y born (omitted) 2011. They agree that the children should live with the mother and spend alternate weekends and school holidays with their father. The mother proposes that all time be supervised because she alleges risk of sexual abuse of the children by the father. The father opposes any order for supervision. The Independent Children’s Lawyer supports the father’s proposal.

2. The father’s case outline contained two proposals. The first was that the children live with him and spend alternate weekends and half school holidays with the mother. The second was that the children live with the mother and spend alternate weekends 6.00pm Friday to 6.00pm Sunday and half school holidays with him. At the conclusion of the hearing the second proposal was the one put by the father’s counsel, by the Independent Children’s Lawyer and recommended by Ms J, the family report writer. Ms J’s recommendation was subject to the court finding there was no risk of sexual abuse of the children by the father.

3. The significant issues, therefore, are:

   a)Has the father sexually abused the child X;

   b)Are the children or either of them at risk of sexual abuse by the father.

4. The parties dispute whether there should be an order for equal shared parental responsibility or whether responsibility for major long-term matters be with the mother only.

5. The mother’s case of risk of sexual abuse largely relies on statements she alleges the child has made to her and her friend Ms N. They are best understood if placed in their chronological context and in the context of the involvement of professionals and child protection practitioners.

6. The mother was born on (omitted) 1990 and the father on (omitted) 1988. The parties met in May 2009 and commenced living together in August 2009. They finally separated in October 2011. They did not marry.

7. The relationship was not a particularly successful one. The husband became ill in September 2009 and returned to Tasmania where his parents lived. The mother was pregnant but the parties remained in contact. The father returned to Victoria in February 2010 and the parties resumed cohabitation. The mother had a pregnancy which was terminated by agreement of both parties although the mother says her agreement was reluctant.  They were not living together during some of the mother’s pregnancy with the first child and finally separated before the birth of their second child. There are two events described by the mother which, if her version is correct, constitute family violence and if the father’s version is correct they do not. Neither party’s submissions now place any significance on these events and it is not necessary to decide whose version is correct. That they occurred, whichever is the correct version, is a demonstration of the at times unhappy relations between the parties.

8. The parties attended Family Dispute Resolution on two occasions in October and November 2011. They reached agreement that X would spend time with the father each alternate weekend from 9.00am Saturday until 6.00pm Sunday commencing 22 October 2011 and each Tuesday from after childcare until 5.00pm. This time continued until Easter 2012 and then stopped. The weekend time took place at the father’s residence in (omitted).

9. The mother commenced these proceedings on 18 May 2012. Orders made on 29 June 2012 provide that the parents have equal shared parental responsibility for the children, the children live with the mother and spend time with the father each Saturday from 9.00am until 5.00pm commencing 7 July 2012 and then commencing 22 September 2012 with X each weekend from 9.00am Saturday to 5.00pm Sunday and with Y each Saturday from 9.00am until 12 noon.

10. An order on 15 November 2012 extended the time the child Y spent with the father on Saturdays to 5.00pm commencing 29 December 2012 and provided that from 20 January 2013 both children spend time with the father every second weekend from 8:30am on Sunday until 5.00pm Sunday and in the intervening weekend from 8:30am to 5:30pm Sunday. The order makes provision for the preparation of a Family Report and fixed the application for Final Hearing in the week commencing 3 June 2013 in the Gippsland sittings of the Court.

11. The mother alleges that after X commenced spending time with her father in July 2012 her behaviour regressed and complained that her “fairy” was sore. The mother says that fairy is the word X uses for her vagina. She says that X began to refuse to get undressed and not allow anybody but her mother to touch her anywhere. She said she would cry, yell and pull herself away when she attempted to wash her. She says that X did not want to spend time with the father.

12. Y became sick with bronchiolitis and was admitted to hospital. The mother was given a referral to see Dr J, a paediatrician within the hospital and she obtained a referral for X as well. The mother says that X was showing similar symptoms to Y.

13. X’s first appointment with Dr J was on 12 November 2012, the same day as the court hearing. The maternal grandmother took X to the appointment with Dr J. Dr J’s note from that appointment records, in part,:

    (1) Cough? Mild form of Asthma

    (2) Rash

    (3) Anxiety

    I was told today that she does not like anyone approaching, looking at her genitalia. She is also “hysterical” with access by her father.

    Exam. today extremely difficult.

    I believe that the rash is likely infected

    Plan

    (1) antibiotics

    (2) Claratyne 2.5 ml daily for 5 days

    (3) Psychologist assessment for her emotive reaction to access. It is very unusual.

    It may also be beneficial to consult FFPMS (Victorian Forensic Paediatric Medical Service)

14. Dr J was telephoned by Ms L, Child Protection Practitioner on 22 January 2013. Ms L’s note records in part that Dr J told her that X has behaviour problems, he saw her in November 2012 for the first time. She had problems with a recurrent cough and urinary tract infection and anxiety. He could not say if there were any concerns about sexual abuse.

15. The mother stopped providing the children for time with the father after the middle of November 2012.

16. The mother’s concerns about possible sexual abuse commenced prior to the appointment with Dr J. The mother filed four affidavits and gave oral evidence. The affidavits were sworn at various times after the events the mother describes and her oral evidence some months after. The nearest to contemporary accounts given by the mother are those contained in the child protection reports prepared from interviews of the mother by child protection practitioners.

17. The first report of relevance is of an interview on 30 November 2012. The mother described regressive behaviour by X, that she would not allow anyone to touch her, bath her and that “it is sore down there”. The mother expressed concerns that X may have been sexually assaulted.

18. The mother was again interviewed on 4 December 2012. The report records that the mother stated she did not think X has been sexually abused and certainly not by the father. By that stage X had seen a psychologist, Ms T, following the advice of Dr J and a referral from X’s general practitioner.

19. The child protection reports record a brief discussion with the mother on 28 December 2012 which says that X is alleged to have disclosed that “daddy hit her on the head with his doodle”. The report also includes a reference to an incident the mother describes which happened when the parties were living together when the father was naked after showering, swung his penis around and placed a towel between his legs making pulling movements.  The mother’s evidence is that this happened when the parties were living together and the children were not present.

20. The mother was next interviewed on 31 December 2012. She said that the previous weekend she and the children saw the father and paternal grandparents on the side of the road and she stopped and had a conversation in which she told the father she wanted contact to continue but supervised. Later she and her friend Ms N were having dinner at the maternal grandparents address, X heard a police siren, the mother asked what are they doing and X said “going to go and get my dad”.

21. When asked why X said he was naughty. The mother asked why he was naughty and X stated that the father hit her on the head with his doodle and that he “hit me on my fairy”. The mother explained that X uses “fairy” to refer to her vagina. The mother went on to say X said he hit her with his doodle on her “head”… “arm” and then her “fairy”.

22. Ms N asked X “did daddy touch your fairy with his doodle” and X replied “yes”. The mother asked how this occurred and X replied like this and put her hand on her vagina area. The mother asked X to show how Daddy did it and X started taking off her belt and pants and the mother told her not to worry.

23. The next report of an interview with the mother is on 17 January 2013. That report records that the mother says that the first disclosure was made around 28 November 2012. The mother says that X heard a police siren and said that the “police are going to get daddy”. The mother asked why and X said because daddy is naughty when asked what he did X said “daddy hit my hand, head and fairy with his doodle”.

24. The second disclosure the mother says was made on 29 December 2012 when they were cleaning up spilt drink and the mother had asked X to go to her room if she did not clean it up and she refused to go to her room as Daddy hurt her in the room. When asked she demonstrated the acts that the father had done such as hitting her hand and head with doodle and touching her vagina with her hand. The mother also reported that X said “daddy’s doodle went down my fairy and that it was too big mum”. It is worth noting here that the mother in her evidence denied that the child said “went down my fairy” or that she, the mother, had told the child protection officers that the child had made this statement. Ms L, the child protection officer present took notes of the conversation as it occurred. Given the seriousness of the allegation it is improbable that the notes are mistaken. Both child protection officers involved gave evidence.  Ms L confirmed the mother’s statement. I am satisfied to a high degree of probability that the mother did report that X said “daddy’s doodle went down my fairy and that it was too big mum”.

25. The mother advised that she had stopped providing the children for access and that the father had continued to keep coming on weekends to pick up the children. The mother described one occasion when X had wanted to go with her father.

26. The evidence of the mother is that on 23 of January 2013 she and her friend Ms N took the girls to get McDonald’s as a special treat. They went to the nearby lake and ate their lunch near the park, a police car drove past and X noticed and said “police mummy, they are going to get daddy”. The mother says she asked why are they going to get daddy and that X said “cos daddy hit me and Y”. The mother says that when she asked how X replied “with his doodle”. The mother says she asked where daddy did this at daddy’s house or near Nanny’s house and X replied “near Nanny’s house”.

27. X was interviewed on 30 January 2013 by Senior Detective (omitted) of (omitted) Sexual Offences and Child Abuse Investigation Team, described by the acronym SOCIT.  The Child Protection Officer Ms L was present as was the mother. The statements made by the child must be put in the context of the whole interview. The following are the relevant extracts from the report.

    (omitted) asked if X told her mum that daddy was naughty? Yeah. Tell me. X said, “he hit me. Mr Galea did.” (omitted) asked tell me about that. X was playing with a card and said, “my sister”. (omitted) said, tell me about when daddy hit you”. X said, “doodle”. (omitted) replied, “tell me about that”. X said, “my sister” and pointed. (omitted) said, “tell me everything about when daddy hit you”. X did not answer.

    (omitted) asked, “before you said daddy hit you. You said daddy was naughty. Tell me more about that”. X walked away. (omitted) asked X about daddy. (omitted) asked, “you said before about daddy, you said doodle”. X spoke about a mark on her leg. (omitted) asked “what is a doodle?” X replied, “daddy”. (omitted) said tell me more about daddy. X replied, “he hit me”. Why? “I don’t know”. (omitted) asked what daddy hit her with?  X replied, “doodle”. (omitted) asked where? X said there and pointed to her fingers (omitted) asked where he hit her? I don’t know. (omitted) asked that if it here or where? X said, “daddy’s house”.

    (omitted) asked, “when you told mummy that daddy was naughty what did you tell mummy? “X said someone hit me. X said, “he hit me. Me dad, Like that”. X smacked with an open hand to her forearm. X said Y pulled her hair. (omitted) asked about daddy. No response.

28. The child protection file contains an email dated 1 February 2013 from Detective Sgt Mr P of the (omitted) Sexual Offences and Child Abuse Investigation Team. The first paragraph reads:

    I have perused this intake report and spoken to Det. S/C (omitted) regarding his conversations with the mother yesterday. The concerns SOCIT have at this point our-: the age of the child: that this makes it very difficult to even consider doing a VARE: no witnesses, no medical evidence, the leading questions by the mother to the subject and the fact that there is a break down within the family.

29. The email concludes:

    At this time, SOCIT will not take any further role in the matter due to the concerns outlined above. If things change due to her age, disclosing to counsellors etc then please feel free to contact us to discuss further.

30. Ms T, psychologist, saw X on 30 November 2012, 18 January 2013 and 25 January 2013. Dr J’s suggestion of a psychological assessment the mother approached a psychologist who said he did not deal with young children and so she obtained Ms T’s name as a psychologist who did. The mother obtained a referral to Ms T from her general practitioner. Ms T was not called. Her notes were admitted into evidence by consent and her qualifications and experience in dealing with young children not queried by any party.

31. Ms T’s notes of 30 November 2012 record a number of things in dot point form.  Some of these are:

    ·Dau complained of vagina hurting four mths ago. Showed mo.

    ·Refuses to show mo vagina area since three months ago.

    ·Redness around vagina entrance

    ·won’t let mother bathe her, touch her at all wash her hair

    ·visited Dr J (sic)-also refuses to let him view her

    ·says “Dowaz” for sore. Points to vagina at times and says “dowaz”

    ·woke screaming in middle of night (two mths ago × two weeks)-screaming vagina was sore but would not let mo view. Has returned to sleeping through

    ·mo indicated that Childcare centre used term “regression” after dau returned from father’s home. Regression in speech, social interaction, compliance. Demeanour “miserable”

    ·Behaviour home: urinating on floor (daughter fully toilet trained), hiding in bedroom and defecate, hitting mother and siblings, sooky, tearful

    ·Dau’s behaviour changed after mother ceased access: improved, return to previous behaviour

    ·Since court, has attended access 2×

    ·behaviour has returned to urinating on floor, clinging tearful when mo talks about going to father’s home, dau upset after access but behaviour improved by Thur. Fearful of seeing unknown people, separation anxiety

32. Under the heading “outcome” Ms T concludes her notes of 30 November 2012 as follows:

    Writer indicated to mother that children who have been sexually assaulted may show signs of regression, changes in behaviour etc.. Writer noted that she could not confirm whether dau had been sexually abused but recommended that if Mo was concerned regarding her daughter’s safety at access that she contact DHS. Writer agreed to provide play therapy sessions for dau to assess dau’s functioning and behaviour, and to provide forum for disclosure.

33. Ms T’s notes of the meeting on 18 January 2013 include the following:

    Discussions with mo:

    mo noted that dau reported to her that daddy hit her on her fairy (vagina) with his doodle, and proceeded to take off her underwear. She also noted that “daddy’s doodle went down on her fairy and that it was big”.

    Writers notes:

    IG’s play appeared age-appropriate. Although mo noted that dau could speak in a number of sentences, this has not been supported. Writer queries disclosure made to mo, given that IG spoke only 1-2 words at most. It does not appear that child could make such a detailed disclosure.

1. Ms T’s notes of the meeting of 25 January 2013 described X as more comfortable in session. They include “Attention span was age-appropriate. Speech: 1-3 words only.” The notes conclude with the following:

   Session with IG

   IG engaged in play only (as described above). Attempts to promote discussions of activities child was engaged in during session, elicited no information.

2. The mother and the father in their interviews with the child protection officers and in their evidence said that the father had baths with the children when collecting them and returning for his time with them after separation. On occasions this was two baths a day.  Both described it as “skin to skin bonding”.  The father said he had had baths with the children when they were spending time with him.

3. Ms L the Child Protection Team Manager responsible for the investigation wrote a letter dated 5 February 2013 addressed to the Registrar of the Court. Copies were sent to the mother and the father.

4. The letter advised that the concerns of sexual harm of X and Y have been substantiated with Mr Galea being assessed as responsible for harm. Because Child Protection assessed the mother to be a protective parent as she obtained professional services and had ceased access with Mr Galea, the case did not meet the threshold for statutory Child Protection involvement. No further Child Protection intervention was required. The letter said that Child Protection would have concerns were Mr Galea to have unsupervised contact with the children.

5. The letter summarised the statements the mother had made to Child Protection officers about disclosures made by X. It says that Ms L had contacted Dr J and sets out a summary of the information Dr J provided which is the same as the note referred to above. The letter says that Dr J said he did not feel it necessary to refer X for a forensic examination as there was no evidence she had been sexually assaulted at that point. Dr J stated he could not comment if X had been sexually touched or not based on the one appointment.

6. Ms L had contacted Ms T. In relation to the conversation with Ms T the letter says:

   I have contacted the Psychologist, Ms T, with the consent from Ms. Harrick.. Ms T informed she has recently started seeing X.  Ms T said it takes time for children, particularly the age of X, to warm up and therefore they have been building a relationship during their sessions. Ms T said X had stated to her, “daddy is naughty” but has not elaborated further.  Ms T said X shows signs of abuse: regression in speech, urinating on the floor, and refusal to let anyone touch her.  Ms T has not had a disclosure from X, however she is able to say that X displays behaviour which checks the boxes for a child who may have been sexually abused.

7. The letter states that Ms L had interviewed X over two meetings with Detective Senior Constable (omitted). The letter states “X disclosed that daddy “hit me with his doodle”.

8. Ms L says that the mother had provided a letter by X’s childcare, concerned about how X’s behaviour would regress the day after visits with the father but would be back to normal by later in the week.

9. The conclusions of Child Protection are stated in this paragraph:

   Based on the disclosure of X, the information from the Psychologist that X’s behaviour is consistent with a child who has been sexually abused, the concern about X’s behaviour regressing immediately after access visits, concerns about X not wanting to be touched, and the concerns about possible loose boundaries with Mr Galea having more than one bath during access visits with the girls and being in naked in their presence when not appropriate to do so, the concerns of sexual harm of X and Y have been substantiated with Mr Galea being assessed as responsible for harm.

10. Several things need noting about this conclusion. In evidence Ms L said that the conclusion should have been stated as risk of sexual harm rather than actual sexual harm. Ms L was not aware that on 18 January 2013 Ms T had made the assessment that a child as young as X could not have made such detailed disclosure. Ms L said that knowing that information, the assessment would need to be reassessed. The Child Protection officers may have concluded that the father was naked in the children’s presence other than when he was bathing with them. The probable conclusion from the evidence of the mother and the father is that this did not happen and certainly not after separation.

11. The husband filed an Application in the Case on 1 February 2013. He applied for orders that the child live with him and spend alternate weekends from Thursday at 4.00pm until Monday at 4.00pm and one night midweek in each week with the mother. The basis of his application was that the mother was refusing to provide the child for time in accordance with the order of 15 November 2012.

12. The application came before the court on 21 February 2013. By then Ms L’s letter of 5 February 2013 was available. Given that this was a notification by Child Protection of an investigation and the conclusion that concerns of sexual harm of both children have been substantiated with the father being assessed as responsible for harm, I ordered that all existing orders for the children to spend time with the father be discharged and that the children spend time with the father from 9.00am to 5.00pm on the Saturday and Sunday of the fourth weekend of each month supervised by the father’s mother or the father’s father or one of them. I ordered that the father not bathe the children. The date for final hearing was changed from the Gippsland Circuit in June to 5 August 2013 in Dandenong.

13. The children spent time with the father supervised by his mother on 23 and 24 March 2013, the first weekend time after the making of the order on 21 February 2013.

14. On 24 April 2013 the mother filed an application in the case applying for an order that the time between the father and the children be supervised by the maternal grandparents or at a child contact centre.

15. The mother in an affidavit in support alleged a number of things. She claimed that when the children were returned to her on the weekend of 23 and 24 March 2013 the children had been bathed. The issue was explored in the final hearing. I am more than comfortably satisfied applying on the balance of probabilities test, that the children were not bathed by the father or his mother on that weekend. I am satisfied that the cabin or unit where the father and his mother were staying did not have a bath.

16. The mother claims that hair colouring both children had had been washed out and that both children had tattoos of roses on their arms and Y’s was washed off. The children had been to a party or gathering where hair colouring and tattoos were applied, clearly only of a temporary play kind, to the children. The father and his mother said the children had faint signs of hair colouring when they collected them on the Saturday.  The father’s mother gave evidence.  She impressed me as a careful and sensible person who understood her role as a supervisor and knew the order prohibited the father bathing the children.

17. Of note to the mother’s credibility is that the mother claims that X disclosed to her she had been bathed in the respondent father’s care. If she did do so then I am satisfied it was a false disclosure. One possible explanation is that the mother, having decided herself that the children had been bathed, had questioned X and received a response which the mother interprets as X disclosing to her that she had been bathed in her father’s care, but I do not need to make a finding about the alleged disclosure to be satisfied there was no bathing.

18. The affidavit in support of the application in the case alleges that there are discrepancies in the communication book between entries made by the father than those made by his mother. I have seen the entries and heard the evidence.  The father and his mother have recorded the giving of medication in different ways but it is not a discrepancy.

19. In the same affidavit the mother makes a complaint that the father’s mother left her post as supervisor of Y on Sunday 24 March 2013.  Y was ill and had to be taken to see a doctor. The mother, the father, the father’s mother and the two children all attended. There was a considerable wait and X became restless so the father’s mother took her outside to keep her amused. The mother’s complaint is Y remained with the father not supervised by his mother. The complaint is completely unfounded because the mother herself remained in the waiting room the whole time with Y and the father.

20. Of more concern is the mother’s claim in the affidavit that on Sunday, 24 March 2013 X said “daddy hit me”. In reply to the mother’s question “how?”, The mother says that X said “doodle”. The mother then says that on 4 April 2013 X started to show signs of anger and frustration. The mother asked what was wrong and X said “daddy hit me. The mother asked “how?” X replied “doodle” “and “Y”. The mother asked where and the mother says that X pointed to her head, then her arm, then opened her mouth wide and pointed inside and said “there mum” the mother says she asked “with what?” and X replied “daddy’s doodle”. The mother says she asked where and she says that X replied “with dad and nan around the corner”.

21. The mother says that X led the mother’s friend Ms N to the bottom of the driveway and the mother says she understood X to be directing them to the motel where the father saw the children with his mother on 23 and 24 March 2013. She says that the motel is on the highway and her home is only a few blocks from the highway.

22. I heard the application in a case on 8 July 2013 and dismissed it. Now having heard the evidence in the final hearing I am again more than comfortably satisfied that nothing of the sort the mother claims X described happened on the weekend of 23 and 24 March 2013. The father and his mother say that except for the Sunday morning when Y was taken to see a doctor, the children had a happy and enjoyable time. The observations of Ms J, the family report writer, of the children with their father corroborates the evidence that the children enjoyed their time with him. The mother claims that the children did not and X in particular was reluctant to go to spend time with her father. That is maybe the mother’s view but it is not the conclusion to draw from Ms J’s evidence. I refer to her evidence later in these reasons.

23. In her trial affidavits filed on 22 July 2013 the mother again refers to the events of 24 March 2013. She then says in the affidavit that X complained for weeks to her that her fairy, which she refers to as her vagina, hurt. On 24 April 2013 she took X to be examined by Dr E at (omitted) Family Medicine. The mother says that Dr E told her that X’s hymen was broken. This is not what the doctor’s clinical note says. It reads:

    mum is worried that she may have been molested 23/24rd March, asked to examine. child clearly terrified by my approach. nurse assisted. o/e inflamed vag area hymen absent. No obvious acute trauma. creamy discharge. advised canestan cream.

24. The child protection authorities and the police again became involved after 24 March 2013. The child protection practitioner dealing with the matter at this stage was Ms P. Child protection assessed the paternal grandparents as suitable supervisors. Ms P and a SOCIT officer attended at the mother’s home but no further disclosures were made by the child. A file note states:

    There is medical evidence that child Y has broken hymen however examined forensic specialist has stated that it is not conclusive of sexual abuse and that he would have notified C P had he thought this was the case.

25. The file note is mistaken in referring to Y, but it shows Dr E conclusion following his examination.

26. The mother’s evidence is that after this time X continued to make statements about her father hitting her with his doodle. She produced a video recording on her iPhone which she said was made about five or six weeks before the hearing. She said it was one of many recordings she had made.

27. The mother said that X had just got up and she had wet the bed. She was really upset. The mother says that she wanted to stay with her Nan. Mother says she said she is going to stay with Nan soon and she is going to see daddy soon and she says X started saying “no”.  She started being more distraught, the mother says and said something the mother says she did not hear because X had her dummy in her mouth. The mother says she took the dummy out and X said “daddy hit me with his doodle on my fairy” the mother says she asked where and X said “my Nan”. The mother says she asked who is your Nan and X said “Ms C”. Ms C is the father’s mother.

28. The mother also says that in this recording X says that Ms C was not there, she went to the shop.  The mother says that X had said this a number of times after 24 April 2013.

29. The first time the father’s mother was present with the father was when she supervised the father’s time on 23 and 24 March 2013, so if X did make such a statement it must have been this weekend or after.  The father’s mother gave evidence. I repeat I am satisfied the father’s mother understood her duties as supervisor and did supervise the children the whole time they were with their father. He could not have ill-treated the children.

30. The mother’s statement that she had made recordings did not come until she was in the witness box.  There was no mention in her trial affidavit. If X makes the statements the mother alleges they are important.  The mother did not give a satisfactory explanation for not referring earlier to the recordings and others she claimed were like it.

31. The mother played the recording in court. There was no facility to show the video. X was clearly very upset.  All that it was possible to discern was a reference to two Nans and “he hit me”. The child protection file shows that the SOCIT police officer (omitted) had listened to the recording and stated they would not add any weight due to the way the disclosures were obtained.  He said they are quite garbled and consist mostly of the girl crying.

32. The mother’s explanation for having the recording was that she would often record the children using her phone including when X became upset. She said she had numerous recordings.

33. The maternal grandmother gave evidence. The trial commenced on Monday 5 August 2013. The mother and grandmother gave evidence on Thursday 8 August 2013.  She said that on the afternoon of 6 August 2013 she was driving to (omitted) with the two children. She was doing that because she said she had to be at court the next day and was staying the night in a hotel in (omitted). X had been to a doctor’s appointment that morning and the mother and her friend Ms N had dropped the children off to her after taking them to the hospital.

34. The grandmother said that X asked her where they were going and she explained they were going to meet mummy at court. The grandmother said X asked if daddy and pop and Ms C were going to be there and the grandmother said they were. The grandmother says that X said she did not want to see daddy. Asked why and she said that daddy smacked her. The grandmother said to X she must have been naughty if daddy smacked her and she said X said “but daddy hurt me and Y”. The grandmother said “well, when he smacked you?” The grandmother said X said “No, my fairy”.

35. Ms J prepared the family report. Three things of particular significance come from her evidence. The first is the mother’s attitude to the children having a relationship with their father, the next the children’s relationship with their father as observed by Ms J and Ms J’s opinion about whether X behaved with her father like a child who had been sexually abused.

36. Ms J reports that the mother told her that she would only agree for her parents to be supervisors if there are visits between the children and the father in the future.  The mother did not believe it would make any difference at all to her daughters whether or not their father participated in their lives, because in her view Y was not attached to the father and X did not wish to spend time with her father.

37. Ms J said she asked the mother about the long-term impact of growing up without a father in the children’s lives and the mother responded that “I did not have a father. There is nothing wrong with me”. The mother said that irrespective of Court Orders she would not allow the children to spend time with their father.

38. Ms J says that when she asked the mother if she had a right to take away the children’s right to enjoy the relationship with their father and how would she deal with children’s questions about the lack of their father in their lives, the mother responded that her next partner would play the role of the father to her children and when the children reach the age of 18 years she would show them all the Court papers in relation to the case so that her children can be “the real judge” of her actions.

39. Ms J elaborated on this in her oral evidence. She said she thought the mother was very limited in her understanding of human behaviour, the children’s needs and had convinced herself there was no need for a father. Ms J said there were unresolved issues in the mother’s life including not knowing her father.

40. The mother in her evidence said she did believe that the children should have a relationship with both parents and that she did want the children to see and spend time with the father. Ms J said this did not surprise her. She again referred to the unresolved issues in the mother’s life and to the mother’s behaviour when Ms J asked her to watch how the children were behaving with the father. The mother had not wanted the children to see the father and said they would not want to. Ms J persuaded her to agree that they should see their father outside the building in the car park and when that occurred there was a very positive interaction between the children and the father. Ms J thought it was a good opportunity to call the mother for her to see the interaction between the children and the father. The mother stood for 10 to 12 minutes watching happily, Ms J said, like a child watching something going on. She was not upset or negative or trying to stop the children from sitting on their father’s lap and asking him to read. She was laughing and joking. Ms J said that usually mothers with the type of attitude the mother expressed would want to cut off the transaction but the mother was clearly watching and enjoying the positive interaction between children and father.

41. The significance of these observations by Ms J is that it shows that the mother has not resolved in her own mind her attitude to the children seeing the father. Her position in her evidence was that if the children were safe they should be seeing their father and that his proposal for alternate weekends and holidays was all that was practicable in the circumstances of the distance between the party’s homes. She has on many occasions expressed the view that the children are at risk with the father and yet there were times in her evidence when she said she did not know.

42. The second thing of significance I have already mentioned. Ms J said the mother had many dos and don’ts about the session. The mother protested quite strongly that the children would not go to their father and then it would be great resistance from them during the time they were seen with their father. Ms J says that finally it was decided that the children would be seen in the open area of the car park of the consultants office instead of in a closed up playroom.

43. Ms J reports that as soon as the children saw their father in the car park they left their mother’s company and came running towards their father. X ran to her father’s arms and Y followed her slowly and a bit shyly. There were many voluntary kisses and hugs and the children sat down to have their lunch brought from home prepared by the mother.

44. Ms J says the children were familiar and friendly with their paternal grandmother. After lunch the children and the father played running around hiding and chasing games in the open space. The children did not seem anxious, frightened or preoccupied during their time spent with their father. After about 50 minutes when the mother was asked to come and get the children ready to go home they were sitting on their father’s lap not ready to separate from him. The father gave them presents and they sat on their father’s lap and opened their presents. X asked if she could go home with her father. The mother watched their interaction and I have already described Ms J’s evidence about how the mother reacted.

1. Ms J is a very experienced Family Court Counsellor, mediator and report writer which includes experience in sexual abuse of children cases.  She was asked her opinion about the behaviour of two and a half to 3-year-old children who have been sexually abused. She said that such children may not necessarily run away from the abuser, but given the type of abuse described to her by the mother including a ruptured hymen and some discharge and pain persisting for months, she said she did not think the children would have presented the way they presented. She went into some detail and concluded by saying the way the children were with the father was pure child father sincere relationship in love and affection. In summary, she did not consider that the children behaved in a manner you would expect if they had been sexually abused by the father.

2. One final piece of evidence is relevant to the issue of sex abuse. The mother gave evidence that the child X uses the word fairy to describe her vagina. The mother was asked if that was a word she used to describe a vagina and she said she did not. The father gave evidence that both the mother and the maternal grandmother used the word fairy to describe a vagina. The most likely explanation for a 2 to 3-year-old female child using such a colloquial word for a vagina is that she has learnt it from the adults in her life. X has largely been in the care of her mother and associating with the mother’s family and the mother’s friends. While the mother said that X did not learn the word fairy for a vagina from her, she did not offer any alternative explanation. The father’s evidence is a credible explanation and I accept what he says that is that the word is used by both the mother and the maternal grandmother.

3. The Full Court of the Family Court did an extensive review of the cases on child abuse in W and W (Abuse allegations unacceptable risk) [2005] FamCA 892, [2005] FLC 93¶235. The Court, (Warnick, May and Boland JJ), said at [111]

   111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

4. Paragraph [105], the reference to the judgement of Fogerty J in N and S and the Separate Representative (1996) FLC 92-655 is as follows:

   105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

   “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

5. The test in M and M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979 is ‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081).

6. In W and W at [96] the Full Court quoted extensively from M and M describing this passage as the principles set out by the High Court:

   “In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

   ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

   His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. [1976] VicRp 24; (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

7. The application was commenced on 18 May 2012 prior to the commencement of the family violence amendments in June 2012. The Family Law Act 1975 (Cth) as it was prior to the amendment applies to this case. That means no primacy exists between the two primary considerations in s.60CC(2). They are:

   S.(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

8. In terms of the best interests requirements in s.60CC, the balance the High Court of Australia refers to is a balance between the two primary best interests considerations.

9. The standard of proof is the civil standard of balance of probabilities bearing in mind what the High Court of Australia and the Full Court of the Family Court of Australia have said about the application of the standard when there is an allegation of sexual abuse. The findings of fact I make apply this standard.

10. The evidence does not permit a finding of sexual abuse of the children by the father, nor does the evidence show that the children spending unsupervised time with the father, including overnight time, would expose the children or either of them to an unacceptable risk of sexual abuse.

11. None of the professional or expert evidence supports a finding of sexual abuse. Neither of the two medical practitioners who have examined the child after hearing of the mother’s concerns about the child’s behaviour and the possibility of sexual abuse have concluded that they can say that sexual abuse has occurred.  The paediatrician Dr J saw the child in November 2012 and identified the soreness or redness around X’s vagina as a urinary tract infection. On 24 April 2013 Dr E noted “inflamed vag area hymen absent” and later told the Child Protection Practitioner Ms P that it was not conclusive of sexual abuse.

12. The psychologist Ms T told the child protection practitioner Ms L that the child’s behaviour ticked the boxes for sex abuse, but that was based on the mother’s description of X’s behaviour. Ms T’s notes of a later session records the mother’s statement that daddy hit her on her fairy (vagina) with his doodle, and that “daddy’s doodle went down her fairy and that it was big”. Ms T’s notes record that X spoke only a few clear words and then Ms T’s opinion “It does not appear that the child could make such a detailed disclosure”.

13. The specialist SOCIT police officers concluded that they would not take an investigation any further after the initial interview with X. The email dated 1 February 2013 from Detective Sgt Mr P says “The concerns SOCIT have at this point are-: the age of the child: that this makes it very difficult to even consider doing a VARE: no witnesses, no medical evidence, the leading questions by the mother to the subject and the fact that there is a break down within the family.”

14. The experienced family report writer, Ms J, concluded that the children’s behaviour with their father that she observed was not consistent with one of the children having been sexually abused by the father.

15. The child protection practitioner Ms L concluded that the children were at risk of sexual abuse from their father but she acknowledged that that conclusion would have to be revisited in the light of the further information she had been given, principally Ms T’s conclusion that X could not have spoken as the mother alleges.

16. This means that evidence relevant to sexual abuse is the mother’s evidence and the evidence of her friend Ms N, together with, to a small extent, the evidence of the maternal grandmother.

17. The mother’s evidence is unreliable.  I have already described how the mother in her evidence denied that the child said “went down my fairy” or that she, the mother, had told the child protection officers that the child had made this statement. I have described how Ms L, the child protection officer present took notes of the conversation as it occurred. I repeat my statement that given the seriousness of the allegation, it is improbable that the notes are mistaken.  Ms L confirmed the mother’s statement. I repeat that I am satisfied that the mother did report that X said “daddy’s doodle went down my fairy and that it was too big mum”.

18. Ms T’s notes of 18 January 2013 record that the mother told her on that day that X had made the same statement to her. It is highly improbable that Ms T could record such a precise and serious statement if it was not made.

19. The Child Protection files record a note of a meeting between the child protection practitioner Ms P and the mother on 25 June 2013. Ms P notes that the mother claimed that X made the disclosures clearly to her, to Protection Worker Ms L and SOCIT officer (omitted) during the previous investigation. Ms P’s notes say that she explained that it was not clear as they were ad hoc words in different sentences.

20. The interview between X, Ms L and the SOCIT officer is reproduced above. Ms P’s description of ad hoc words in different sentences is accurate, yet the mother is convinced that X made clear disclosures and she gave evidence to that effect.

21. The evidence is both in affidavit form and in her oral evidence. In paragraph 29 of the mother’s affidavit sworn on 14 February 2013 she says that X confirmed in the interview that “daddy hit me with his doodle”. In cross examination the mother said that X did make a disclosure “that her dad hit her fairy with his doodle”. The mother said that Ms L did not understand what X said.

22. The notes of the interview taken by Ms L are set out earlier in these reasons. They purport to be a verbatim recording of what was said. Ms L has given evidence and says that that is what they are and I am satisfied that her notes are accurate. Ms L is a trained child protection worker. The interviewer was a police officer from the specialist SOCIT squad. I am satisfied that the interview was conducted in the manner described by Ms L, is recorded in Ms L’s report of the interview and that the notes are accurate.

23. The notes do not record that X at any stage used the word “fairy”. They record nothing like the sentence “daddy hit me with his doodle”. I do not accept the mother’s claim that X did make the statement the mother alleges and that Ms L and the police officer did not understand it.

24. Another example of the mother’s ability to imagine statements is her claim that child protection workers had not assessed the paternal grandparents as suitable supervisors. They had. Either the mother heard what she wanted to hear if she was told anything about assessment of the grandparents as suitable or she became convinced in her own mind that they had not been assessed as suitable.

25. Given the unreliability of key parts of the mother’s evidence is demonstrated by contemporary written records of reliable professionals, none of the rest of her evidence can be relied upon. A key allegation of the mother is that X said “daddy hit me with his doodle”, yet on one of those occasions when the mother alleges it was said she used only ad hoc words in a disjointed fashion. The probability is that the same was the case on each of the other occasions the mother alleges X made such disclosures and that the mother has convinced herself that X made coherent statements.

26. The source of X using the words and phrases similar to those in the SOCIT interview, that is doodle, daddy hit me and so on can only have been the mother. X’s use of the word fairy for her vagina can only have come about because her mother, and possibly her grandmother, used it in X’s presence.

27. The evidence does not permit a finding that the mother has deliberately invented the allegations although it cannot be completely discounted.

28. Ms J considered that given the mother has unresolved issues in her own life, and the history of the mother stopping time with the father, that this could be a case where there will be a pattern of the mother stopping time with allegations of risk to the children.

29. The mother’s stopping the children’s supervised time with the father in accordance with the order is made in February 2013 after only one weekend and her reasons for so doing lend some force to Ms J’s consideration. The mother claimed the children had been bathed by the father and grandmother in breach of the order. They had not been. The mother claimed that the written undertaking of the grandmother filed with the court was not signed by the grandmother. It had been. She claimed that the grandmother had not carried out her obligation to supervise the father’s time with the children, specifically Y, because she had taken X out of the waiting room at the doctor’s rooms leaving Y behind with her and the father. The allegation is groundless.

1. I could speculate that the likely explanation for the mother’s behaviour is that when X had some soreness around her vagina, diagnosed by Dr J as a urinary infection, she asked X leading questions and in her own mind has turned those questions into statements by X. I do not need to speculate. I need to go no further than to make a finding that the mother’s evidence is unreliable.

2. The evidence of the mother’s friend Ms N cannot be relied upon. She and the mother spend much time together, perhaps every day. Ms N alleges that X made statements similar to those alleged by the mother. Ms T’s evidence and the evidence of the interview with X show that X is not capable of making such statements. There is a strong probability that frequent discussions between the mother and Ms N have convinced each of the two that X made the statements they allege.

3. The maternal grandmother’s evidence of statements she claims X made in the car on the way to court, assuming they were made, cannot be relied upon. By this time the mother had made frequent video recordings of X making what she alleges are further allegations against the father. There is a strong probability that constant questioning of the child by the mother has led the child to make statements either echoing the mother or that the child said what she thought the mother wanted to hear. They cannot be relied upon.

4. Some evidence of the child’s attitude being affected by what she saw as her mother’s view of the father is provided by Ms J. Ms J says that at the conclusion of her observation session of the father with the children, X’s attitude towards her father changed when she saw her mother was coming to collect them.

5. Another part of Ms J’s evidence shows that what the mother says cannot be relied upon. The mother claims that X did not want to spend time with her father and said so to Ms J. As I have already described, the mother told Ms J that the children would not want to spend time with their father on the day of the family report observations and interviews. Ms J’s evidence of what then followed shows that the mother’s view of the children’s and particularly X’s, attitude to their father is wrong.

6. The father denies he has sexually abused X. His interview with child protection officers are recorded in their reports. Ms J’s report on her discussions with the father are in the family report. He gave evidence.

7. The father is employed as a (omitted) in (omitted). He describes his role as work with (omitted) including at (omitted). He says that to obtain the position he had to undergo psychological evaluations, police checks and rounds of interviews. He is based in the (omitted) office of the (omitted). His mother gave evidence. The father comes from solid family background.

8. Ms J’s observations of the father with the children show that he must be a good father. Nothing in the evidence suggests that the father is a child abuser.

9. As an ultimate finding, I need go no further than to say that the benefit to the children of a meaningful relationship with their father by spending time with him unrestricted by a requirement of supervision far outweighs any risk of sexual or any other abuse. There is no unacceptable risk of abuse.  Once that finding is made there is little dispute in the case except for the issue of parental responsibility.

10. Section 61DA of the Family Law Act 1975 (Cth) contains a presumption that it is in the best interests of children for the parents to have equal shared parental responsibility. That presumption can be rebutted by evidence that there are reasonable grounds for believing that there has been family violence or child abuse or if it is otherwise not in the best interests of the children to make the order.

11. Section 60CA says that the best interests of the child is the paramount consideration in considering parenting orders and s.60CC contains the best interests considerations. The principles behind the parenting provisions of the act are contained in s.60B.

12. Section 65DAA requires the court, if it makes an order for equal shared parental responsibility, to consider whether equal time or if not equal time substantial and significant time is in the best interests of the children and reasonably practicable.

13. A number of decisions of the Full Court of the Family Court of Australia have described the desirable pathway through the legislation. Usually this commences with considering the evidence under the best interests considerations.

14. No extensive consideration is needed in this case once the findings about allegations of sexual abuse have been made. Ms J’s report and evidence show that the benefit to the children of a meaningful relationship with each parent, the first primary consideration, is obvious. I have dealt with the issue of risk.

15. Under the additional considerations, the children are too young to express any views. As to their relationship with parents and other people, the mother is their primary carer and they have a very good relationship with their father. Grandparents on both sides have an extensive involvement and will continue to have that involvement.

16. There is evidence that the mother has a negative attitude to promoting the father’s relationship with the children, and that shows the need for orders for the children spending time with their father.

17. The children are well cared for with each parent. Both parents have the capacity to provide for their needs. One issue does need attention. The mother gave evidence of frequent video recording of the children, including when they were distressed and including at times when she alleges X was making disclosures of abuse. I am satisfied that there is a risk that she will in the future question X about possible sexual abuse by her father. Ms J says that if such conduct happens it can in itself constitute abuse of the child and be very harmful. The father proposes an order restraining the mother from making such recordings and questioning the child and I am satisfied it is necessary.

18. Otherwise the only evidence of relevance to any other additional considerations is the obvious one about the ages and sexes of the children.

19. There are no reasonable grounds for a finding of abuse of the child or family violence. Nor am I satisfied that it would not be in the best interests of the children to make an order for equal shared parental responsibility. The contrary is the case. The father’s relationship with the children shows that he should be involved in decisions about major long-term matters. While clearly the parties have their differences, the evidence does not suggest that they will not be able to cooperate in decision making. I am satisfied that the presumption is not rebutted and I am otherwise satisfied that it is in the best interests of the children that there should be equal shared parental responsibility.

20. Equal time is not suggested and it is not practicable given the distance between the parents’ residences.  The father makes the only practicable proposal consistent with his full-time occupation, that is, alternate weekends and half school holidays.

21. The father’s proposal recognises the mother’s role as the children’s primary carer and provides for the substantial time which is possible in the circumstances so as to promote his relationship with the children. I am satisfied that the father’s proposal is in the children’s best interests and it is reasonably practicable.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  29 November 2013