Heaton and Heaton

[2019] FamCA 688

FAMILY COURT OF AUSTRALIA

HEATON & HEATON [2019] FamCA 688

FAMILY LAW – CHILD ABUSE – Sexual abuse allegations – concluded that the father and the paternal grandfather did not sexually abuse the child – the father is not an unacceptable risk to the child – orders made for increasing unsupervised time between the child and the father.

Family Law Act 1975 (Cth)

Cox & Pedrana [2013] FamCAFC 48
M v M (1988) 166 CLR 69
Vigano & Desmond [2012] FamCAFC 79

APPLICANT: Mr Heaton

RESPONDENT: Ms Heaton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 11692 of 2015

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11, 12, 13, 14 & 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Hofstee Lawyers

SOLICITOR FOR THE RESPONDENT: Mr McDonald, BDG Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All parenting plans and previous parenting orders are discharged.

2. The parents have equal shared parental responsibility for the child, X, born … 2010, in relation to her long-term care, welfare and development, with such responsibility to include, but not be limited to, issues about:

   (a)       the child’s education, both current and future;  and

   (b)       the child’s religious and cultural upbringing;  and

   (c)       the child’s name;  and

   (d)       the child’s long-term health and medical treatment;  and

   (e)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either parent.

3. Notwithstanding the provision of Order (2), the father shall be responsible for the daily care, welfare and development of the child when she is living with, or spending time with him.

4. Notwithstanding the provision of Order (2), the mother shall be responsible for the daily care, welfare and development of the child when she is living with, or spending time with her.

5. the child shall live with the mother at all times she is not spending time with the father.

6. the child shall spend time with the father at all times as may be agreed between the parents in writing and failing agreement as follows:

   (a)on 20 April 2019: from 9.00 am to 5.00 pm with changeover to occur at B Contact Centre with the mother to drop off the child and depart immediately at the commencement of time and collect the child from B Contact Centre at the conclusion of time; and thereafter

   (b)on 27 April 2019: from 9.00 am to 5.00 pm with changeover to occur at B Contact Centre with the mother to drop off the child and depart immediately at the commencement of time and collect the child from B Contact Centre at the conclusion of time; and thereafter

   (c)on 4 May 2019: from 9.00 am to 5.00 pm with changeover to occur at B Contact Centre with the mother to drop off the child and depart immediately at the commencement of time and collect the child from B Contact Centre at the conclusion of time; and thereafter

   (d)on 11 May 2019: from 9.00 am to 5.00 pm with changeover to occur at B Contact Centre with the mother to drop off the child and depart immediately at the commencement of time and collect the child from B Contact Centre at the conclusion of time; and thereafter

   (e)from after school Friday 17 May 2019 to 5.00 pm Saturday 18 May 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (f)from after school Friday 24 May 2019 to 5.00 pm Saturday 25 May 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (g)from after school Friday 31 May 2019 to 5.00 pm Saturday 1 June 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (h)from after school Friday 7 June 2019 to 3.00 pm Sunday 9 June 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (i)from after school Friday 14 June 2019 to 3.00 pm Sunday 16 June 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (j)from after school Friday 21 June 2019 to 3.00 pm Sunday 23 June 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (k)during the Term 2 2019 school holidays:

   (i)for three (3) consecutive nights being from after school on 28 June 2019 until 5.00 pm on 1 July 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and

   (ii)for three (3) consecutive nights being from 9.00 am on 12 July 2019 until before school on 15 July 2019 with the father to collect the child from McDonald’s Suburb C or such other public place as is agreed between the parties in writing at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (l)from after school Friday 26 July 2019 until before school Monday 29 July 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (m)from after school Friday 2 August 2019 until before school Monday 5 August 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (n)from after school Friday 9 August 2019 until before school Monday 12 August 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (o)from after school Friday 23 August 2019 until before school Monday 26 August 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (p)from after school Friday 30 August 2019 until before school Monday 2 September 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (q)from after school Friday 6 September 2019 until before school Monday 9 September 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (r)during the Term 3 2019 school holidays: for five (5) consecutive nights being from after school on 20 September 2019 until 5.00 pm on 25 September 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (s)from after school Friday 11 October 2019 until before school Monday 14 October 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (t)from after school Friday 18 October 2019 until before school Monday 21 October 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (u)from after school Friday 25 October 2019 until before school Monday 28 October 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (v)from after school Friday 8 November 2019 until before school Monday 11 November 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (w)from after school Friday 15 November 2019 until before school Monday 18 November 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (x)from after school Friday 22 November 2019 until before school Monday 25 November 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (y)from after school Friday 6 December 2019 until before school Monday 9 December 2019 with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time; and thereafter

   (z)during the Term 4 2019/2020 school holidays:

   (i)for seven (7) consecutive nights from after school on 13 December 2019 until 5.00 pm on 20 December 2019 with the father to collect the child from school at the commencement of time and changeover at the conclusion of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (ii)for seven (7) consecutive nights from 9.00 am on 27 December 2019 until 5.00 pm on 3 January 2020 with changeovers to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (iii)for seven (7) consecutive nights from 9.00 am on 10 January 2020 until 5.00 pm on 17 January 2020 with changeovers to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing; and thereafter

   (iv)for four (4) consecutive nights from 9.00 am on 24 January 2020 until before school on 28 January 2020 with changeover at the commencement of time to occur at McDonald’s Suburb C or such other public place as is agreed between the parties in writing and the father to deliver the child to school at the conclusion of time; and thereafter

   (aa)commencing in Term 1 2020: each alternate week from the conclusion of school (or 3.00 pm if not a school day) on the first Friday of that school term until the commencement of school (or 9.00 am if not a school day) the following Friday and each alternate week thereafter; and

   (bb)commencing in December 2020: for the first half of the Term 4 school holiday period in even numbered years and for the second half of Term 4 school holiday period in odd numbered years, with such time to occur as follows:

   (i)when the time occurs during the first half of the school holiday period: from after school on the day school finishes for the Term until 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday); and

   (ii)when the time occurs during the second half of the school holiday period: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) until 5.00 pm on the Friday before school recommences for the year.

7. Commencing with the Term 4 2020 school holiday period, the operation of Clause (6)(aa) shall be suspended during Term 4 school holiday periods and the time provided for in Clause (6)(aa) shall recommence as follows:

   (a)when the child has spent the first half of the school holiday period with the father – after school (or 3.00 pm if not a school day) Friday in the first week of the school Term; and

   (b)when the child has spent the second half of the school holiday period with the father – after school (or 3.00 pm if not a school day) Friday in the second week of the school Term.

8. Unless otherwise specified in this Order or agreed between the parents in writing, changeover on a school day shall occur to and from school and, otherwise, at McDonald’s Suburb C, Queensland or such other public place as is agreed between the parties in writing.

9. Commencing 2020, the operation of Clause (6)(aa) is suspended:

   (a)for the weekend on which Mother’s Day occurs, such that the child will remain in the mother’s care for that weekend and changeover will occur after school the Monday immediately after Mother’s Day with the mother to deliver the child to school on Monday morning; and

   (b)for the weekend on which Father’s Day occurs, such that the child will remain in the father’s care for that weekend and changeover will occur after school the Monday immediately after Father’s Day with the father to deliver the child to school on Monday morning.

10. the child shall be at liberty to call either parent at all reasonable times and the parent with whom she is at the time shall assist her to make any calls she reasonably requests.

11. Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

12. Neither parent shall enrol the child in any activity which occurs during time she is living or spending time with the other parent without first obtaining the written consent of that parent.

13. Neither parent denigrate or insult the other, or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.

14. Neither parent shall discuss these proceedings nor the allegations made herein with the child, unless such discussion occurs in the course of supportive therapy.

15. The mother be restrained from taking the child to see Dr D.

16. During the time the child is with either parent, that parent shall respect the privacy of the other parent and not question the child about the personal life of the other parent.

17. Each parent keep the other informed of the details of the child’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the child.

18. Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the child and, by this Order, any treating medical practitioner is hereby authorised to release medical information about any medical emergency, significant health issue or significant illness suffered by the child to the other parent.

19. Each parent keep the other informed of the details of any day-care, school, educational facility or extra-curricular activity provider at which the child attends and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the child and her progress.

20. If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or day-care, school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.

21. Each parent shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the child attends.

22. Subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

23. Each parent keep the other parent informed at all times of a contact telephone number and:

    (a)notify the other as to any change in those details as soon as practicable after such change; and

    (b)notify the other parent at least thirty (30) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.

24. The parties have liberty to provide a copy of the Reasons for Judgment to any therapist upon whom they or the child attend.

25. Each parent has liberty to provide a copy of the Order made 18 April 2019 to the school at which the child attends.

26. Each parent has liberty to provide a copy of the Order made 18 April 2019 and the Reasons for Judgment delivered 18 April 2019 to the medical practitioner/s upon whom the child attends.

27. Each parent and the Independent Children’s Lawyer has liberty to provide a copy of the Order made 18 April 2019 and the Reasons for Judgment delivered 18 April 2019 to the Department of Child Safety, Youth & Women.

AND IT IS FURTHER ORDERED THAT

1. Until further Order or the written consent of both parents, the father, Mr Heaton born … 1970 and the mother, Ms Heaton born … 1978, their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, the child born … 2010 from the Commonwealth of Australia.

2. The Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parties.

AND IT IS FURTHER ORDERED THAT

1. All outstanding Applications are dismissed.

2. The Independent Children’s Lawyer is discharged.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that the other party pay his or her costs:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this Order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

1. and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11692 of 2015

Mr Heaton

Applicant

And

Ms Heaton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT[1]

[1] I commence these Reasons with a sincere apology to the parties for the significant delay in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes I took during the hearing and the Transcripts. I have revisited these notes, the Transcripts, the affidavit material, the exhibits and the contents of the parties’ respective submissions, however described; I also record that, on 18 February 2019, the parties were advised that Judgment would be delivered.

1. These proceedings concern the proper parenting orders to be made in respect of the child, X.[2]

   The child was born in 2010. She currently lives with her mother.[3] Since about mid-2016, her time with her father[4] has been limited to two hours per week under supervision. Whilst the observations of the child’s behaviour toward, and her interactions with, her father during their supervised time together will be discussed in more detail later, it is sufficient at this stage to note that the nature of her interactions with, and her ostensible attitude toward, her father has deteriorated since then. It is also relevant to record though, that according to a psychologist upon whom she had been attending, her description of her behaviours during these session led the psychologist to remark, in essence, that she was manifesting tantrums.

   [2] s 65D(1) Family Law Act1975 (Cth).

   [3] Whom was born in Country E in 1978 and is currently 40 years of age.

   [4] Whom was born in Australia in 1970 and is currently 49 years of age.

2. The child’s father seeks that she live with him. He proposes that he be accorded sole parental responsibility for major long-term issues relating to the child (with the associated obligation to inform her mother about proposed decisions, invite her input into the same, take the same into account and later inform her of the decision he has made). He also proposes that the child’s time with her mother, initially, either be the subject of a moratorium or be supervised.

3. The father’s case, at least initially, proceeded on the basis that the Court would be persuaded that the mother deliberately fabricated allegations that he sexually abused the child. He advanced that she did so in order to sever the child’s relationship with him and to permit her to be able to return to Country E with the child. The father also raised concerns about the mother’s parenting capacity and her asserted inability to support the child in her relationship with him. He said that, if the child remained living predominantly with her mother, she would continue to make statements about asserted abuses and, over time, consolidate an unfounded belief that she had been the victim of sexual abuse perpetrated by him and her paternal grandfather and that she had been subjected to physical abuse by her paternal grandmother.

4. The child’s mother proposed that the child remain living with her. She sought to be accorded sole parental responsibility for major long-term decisions relating to the child. She also proposed that the child should spend no time at all with her father. She did so because she alleged the child had made a number of disclosures to her – and to others – to the effect that her father had previously sexually abused her. Whilst her formal position was that the child should not communicate with her father, her evidence was to the effect that she did not oppose telephone communication or him sending her cards but remained of the view that the child was too young to spend time with him and certainly too young to spend any unsupervised overnight time with him.

Overview of some relevant background matters

1. The preponderance of evidence is that the parents met over the Internet in early 2009, at which time the mother was living in Country E and the father in Queensland. After a telephone conversation in early June 2009, during which the mother told the father that she had recently been drugged and raped at a friend’s party, he travelled to Country E. He stayed with the mother and her mother for approximately four weeks, during which time he organised a tourist visa to enable the mother to travel to Australia with him.[5]

   [5] Father’s affidavit filed 19 May 2017 at [11] & [12].

2. It is easy to accept that, when viewed from the mother’s perspective, she was totally reliant on the father after her move to live in Australia with him. After all, she had left her home, her friends and her family to move to live in this country with a person she had only known for a relatively short period of time and with whom she had previously communicated predominantly via remote means.

3. When the child’s parents married in Australia in 2009, her mother was in this country on a visitor’s visa.[6] The parents learned of the mother’s pregnancy not long after that. Additionally, toward the end of September 2009, the father learned that the mother was HIV positive: an infection she said she believes she contracted as a consequence of the rape referred to earlier.[7] After supportive reports were written by various medical practitioners about the likely impact on the mother of being required to leave Australia in order to apply for a spouse visa, the parties were told in late September 2009 that she could make such application without the need to leave Australia.[8]

   [6] Exhibit 3 Tab D p 1.

   [7] Mother’s affidavit filed 19 May 2017 at [24] – [27].

   [8] Summary of F Hospital Health Service records prepared by the Independent Children’s Lawyer, contained with psychiatric report of Dr G filed 11 August 2017, p30

4. The child is not HIV positive. Neither is the father. The mother’s medical condition is currently being managed with medication.

5. The combination of the circumstances outlined briefly above appear to have resulted in significant pressure on the parental relationship. Whether as a consequence of these pressures or the reality of living together when virtually unknown to each other as people or by virtue of their respective innate personalities and resultant behaviours, it is clear that the parental relationship was soon attended by episodic family violence (the details of which are considered later in these Reasons).

Discussion about separation

1. I accept that, during an admission to hospital on 30 November 2010, the mother told a social worker that she was planning to leave the father that day. I also accept that, when she was seen by staff on 19 December 2011, she was distressed and agreed with the recommendation that she go to a domestic violence refuge. Whilst she changed her mind about that the next day, she told them then that she was not going back to the father. Despite this assertion, the parties remained in their relationship.

2. I note that, when she spoke with workers from the Acute Treatment Team on 23 December 2011, the mother told them about her plans to do a healthcare course and apply for permanent residency. I accept that, on 4 June 2012, the mother was told that she had been granted a partner (residence) visa which allowed her to remain indefinitely in Australia and to leave and re-enter Australia for a period of five years from the date of its grant.[9]

   [9] It seems that, after this, she could choose to apply for Australian citizenship or a resident return visa.

The separation

1. I accept that the child’s parents separated on 29 January 2012 when her father left the previously shared home. The child remained in her mother’s care.

the child’s parenting arrangements since separation on 29 January 2012

1. I note that the mother told a Dr H on 18 September 2012 that she unfortunately found some disturbing pornographic material on the father’s computer and that she was then not keen for the child to stay with him; she also reported that he was currently accepting of that result.  I do not accept that the father has ever been accepting of a situation in which the child does not spend time with him. I also note that there is no suggestion that the pornographic material referred to contained images of children.

2. I accept that, despite the comments noted above, from around 2013 onwards, the child spent anywhere between five and seven nights per week in her father’s care; I accept he often collected her from her mother on either Wednesday or Thursday morning and returned her to her mother’s care the following Tuesday evening. I accept as more likely than not that this occurred on occasion because the mother was working at night.

3. The father said that the mother stopped the child’s time with him after he refused to give her money on 28 August 2015 to take the child to a country show: he said that, after this argument, the mother did not even allow the child to speak to him on the telephone. As I understood her evidence, the mother said that she stopped the child spending time with her father because she was concerned he was drinking too much and was unable to look after the child; she also said that he did not have a separate bed for the child to sleep in and that the child had complained to her that he was hugging and kissing her too much and that she did not like it because he hurt her back; she said the child had “mentioned” that her father showed her “dancing girls on poles” on his laptop.

4. Given my conclusions about the mother’s veracity, as outlined in these Reasons, I consider it more likely than not that the father’s account of events is closer to the truth. I do not accept that the father has ever showed the child inappropriate images of dancing girls on poles.

The November 2015 Parenting Plan

1. I accept that, when the parents participated in mediation on 19 November 2015, they reached agreement about the arrangements for the child’s care. This agreement was documented in a Parenting Plan which provided that, until January 2016 (when the arrangements were to be reviewed) the child was to live with her mother and spend the following time with her father:

   a)in week one (beginning Thursday, 26 November 2015): from 4.30 pm/5.00 pm Thursday until 4.30 pm /5.00 pm Sunday each alternate week for eight weeks; and

   b)in week two (beginning Wednesday, 2 December 2015): from 4.30 pm/5.00 pm Wednesday until 7.30 am/8.00 am Thursday each alternate week for eight weeks, with the child to be returned to her mother’s home; and

   c)during a joint Christmas lunch; and

   d)on his birthday (7 January 2016):  from 9.30 pm - 4.00 pm.[10]

   [10] Exhibit 3 Tab F pp 502- 503.

2. The November 2015 Parenting Plan also recorded that the parties had agreed to the child being baptised as a Catholic; that each parent would make contact with a non-denominational and a denominational school; and that they would do a review for “shared care” (a reference I have taken to mean ‘equal time’) on 12 January 2016 (that is, before the child started school). The November 2015 Parenting Plan also recorded that, once “shared care” was undertaken, the mother could take the child to Country E for a holiday and the father could take her to South Australia on holiday and both parents would sign any passport documents needed and co-operate in signing a consent order with “safety provisions”.

The Department receives a report: 8 December 2015

1. I accept that, on 8 December 2015, the Department of Child Safety (the Department) received information that the mother had been showing the child child pornographic video material, involving the father and another man. I also accept that the information provided included that contact between the child and her father had been reduced from three nights per week to nothing because, three weeks earlier, she returned upset from time with her father and said she had been made to sleep in the same bed as him and was made to kiss him.

2. The father said that one of the mother’s friends was the person who reported her to the Department in December 2015 after she became aware that the mother was showing the child naked images of him; he said that the images had been taken three years before he met the mother and that she had discovered them on the computer; he also said that, after she found them, she frequently taunted him about them and threatened to send them to his family and his workplace: he also said that she often sent him messages containing the photographs. I accept his evidence in this respect.

3. The father said that, when the mother learned she was the subject of an investigation, she asked him to “clean up” her computer – which he did and deleted the photographs.[11] I accept his evidence in this respect.

   [11] Father’s affidavit filed 19 May 2017 at [76] – [80].

4. Given the information conveyed to the Department, I accept the father’s evidence to the effect that, despite the parenting plan, he had not spent time with the child for about three months when he instructed solicitors in December 2015 to commence proceedings for parenting orders.

The January 2016 Consent Orders for equal time

1. Ultimately, in January 2016, the child’s parents sought that a final parenting order – by which the child would spend equal amounts of time in their respective care – be made by consent.

2. I consider that each parent arrived at this decision irrespective of their criticisms of the other’s parenting capacity. I consider it more likely than not that each concluded that there was something for each to gain in reaching this agreement.

3. Whilst the mother asserted that she only agreed to the child spending equal amounts of time living with each parent because the father threatened her that she would “lose” the child (because he was going to apply for “sole parental custody” for the child) and she (the mother) “would have to go back to Country E”  and that he told her that she would wish she was dead because she would never see the child again and that, consequently she was scared that she would lose the child and never see her again and so signed the Consent Orders, I note that she had been advised on 4 June 2012 that she had been granted a partner residence visa which allowed her to remain indefinitely in Australia.

4. Thus, I consider that any asserted threat about the mother “having” to go back to Country E was an empty one. Further, given that the terms proposed by the father included that the child would live with her mother each alternate week, I do not accept that the mother thought that she was going to “lose” the child and never see her again if she did not reach agreement about parenting matters.

5. On balance, I am not persuaded that the mother entered into the January 2016 Consent Orders under duress; I consider it more likely than not that she determined that there was a benefit to her in reaching an agreement with the father about the terms of the same. Whilst the father contended that the mother wanted the order in the terms in which it was made because of the Departmental investigation into her alleged conduct, my conclusion about the absence of duress renders resolution of this contention unnecessary in my view.

6. It is clear that, on 18 January 2016, Judge Turner made final parenting orders by consent. These orders included that: the parents have equal shared parental responsibility; the child live with the parents as agreed or otherwise in a shared care arrangement (week about); the child spend half of each school holiday period with each parent; the child communicate with both parents via telephone, Skype or FaceTime; the child attend J State School and that both parents complete a Parenting Orders Programme.

7. I accept that the child’s parents implemented the terms of the January 2016 Order for a period of time after it was made. This meant that the child lived with each parent for a week at a time; unless otherwise agreed in writing, all changeovers between the two households were to occur at the McDonald’s Restaurant at Suburb K.

28 February 2016: the mother hits the child with a coat-hanger

1. I accept that, on 28 February 2016, the mother discovered the child and her six year old male friend naked in a wardrobe in the child’s bedroom. She became very upset with the child and, on her account, overacted and hit the child on her arms and legs with a coat hanger.[12] I note that the mother described it as a plastic coat hanger whilst the father said it was a wire coat hanger.

   [12] Mother’s affidavit filed 19 May 2017, at [71] – [79].

2. The mother says that, when she later spoke with the child about her “sexualised” behaviour, the child said she had seen people do “it” (which I take to be a reference to taking their clothes off) on television.

3. It seems the boy told his mother that the child had forced him to take his clothes off, had pushed him into the wardrobe and then taken her clothes off: when the child’s mother went to check on them because they were so quiet, she discovered them both naked and told him to put his clothes on and go home. His mother then contacted police.

4. I accept as more likely than not that, whilst the mother told the father that day about finding the two children naked in the wardrobe, she did not then tell him she had struck the child with a coat hanger.

5. I accept that, when the police attended at the mother’s home on 29 February 2016, she told them what had happened. She said that, when they told her that she could not hit a child with an object in Australia, she told them that she understood and would not do that again. I accept that there is no evidence to suggest that, save for this incident, the mother has ever hit the child with an object.

6. I accept that the mother did not send the child to school that week because she was hurt.

1 March 2016: Police attend at the child’s school and also speak with the mother

1. I accept that, when police attended at the child’s school on 1 March 2016, she was not there. I also accept that the Deputy Principal told police that the school did not have any previous concerns in relation to the child’s presentation.[13]

   [13] Exhibit 3 Tab A p72.

2. This information is consistent with what the mother told police that day when they attended at her unit. The records of this attendance include that police tried to interview the child but she “shut down”. When police asked her about a slight mark on her left forearm and left calf, she said her mother had hit her with a coat hanger the day before.

3. I also note that the police records of their attendance on the mother on 1 March 2016 include a report that the mother was very distraught, was crying uncontrollably and broke down: she told police she was sorry she had hit the child a couple of times on her arms and legs with a plastic coat hanger; she said she was upset and ashamed after finding the child and the boy naked and this was why she had hit her.

4. I accept that the mother appeared genuinely remorseful to police and that, after they spoke with her about appropriate discipline and the consequences of using excessive discipline toward the child, she was very apologetic for having hit her. I also note that inquiries made by police of a person unconnected to the mother revealed that she was described as “normally” a good mother to the child.

2 March 2016: the child attends on a doctor

1. I accept that the mother took the child to see Dr L on 2 March 2016. According to the notes, the mother had become terribly upset and smacked the child with a plastic coat hanger.  I also accept that his examination revealed the child to have some bruising to her right arm, back, left shoulder and right lower leg. However, he also noted that the child sat calmly with her mother and did not display any fear of her.[14]

   [14] Exhibit 3 Tab B p7.

1. I accept that the mother admitted that she had lost her temper with the child; I also accept that arrangements were made for her to receive counselling and a report from Mr M. On the evidence before me, it appears that the mother did not participate in this counselling with this person despite Dr L’s best efforts to have her engage in the same.

3 March 2016: the father attends the mother’s unit and examines the child

1. I accept that the mother let the father into her unit on 3 March 2016 and told him that police had attended at her home because she hit the child with a coat hanger after catching her and a boy naked. I accept that, when the father examined the child, he saw bruising to her left leg and right arm. I also accept that, after this, the father contacted the Department to report his concerns; I accept that he also contacted the police in an attempt to have charges laid against the mother. I accept that the father’s overall response to learning about the mother’s behaviour to the child was that he wanted to stop the child from seeing her mother but, because neither the police nor the Department were intending to take any action, he did not feel that he had grounds to take that action.[15]

   [15] Father’s affidavit filed 19 May 2017 at [56] – [70].

5 March 2016: the father attends at the mother’s unit to collect the child to spend time with him

1. I accept the father attended at the mother’s unit on 5 March 2016 to collect the child at the commencement of her week with him. He said that, after he gave the child a hug, her mother shouted: "Why do you always have to touch her? What is wrong with you?" He also said the mother tried to remove the child from his arms as he was walking toward the door to leave with her and that he let go of the child and immediately called the police. As he waited outside the apartment for them to arrive, he heard the mother tell the child that he was not her father and that she would get a blood test to prove that he was not her father.[16] I think it more likely than not that the mother made these comments to the child, especially given my acceptance that, on 29 August 2015, the mother told the child to tell the father via a Viber message that she (the mother) sent to him that he was not her father.

   [16] Father’s affidavit filed 19 May 2017 at [66].

2. I accept that, when the police arrived, they spoke to each parent separately. The police records of this attendance outline that the mother told police the father had pushed her onto the ground and raised his fist to her in a threatening manner, whilst the father told them he tried to pick the child up but her mother pulled her away and held onto her. He also told police that the child screamed out and he said he thought that was because her mother was holding her too tightly. The father also told police he thought that the child was mildly fearful of her mother. The father also denied any physical interaction between himself and the mother. Police noted that there were no independent witnesses to whatever had transpired and that neither party was seen to have any marks or bruises. They ultimately allowed the father to take the child with him when he left.

3. That the child was exposed to this event does neither parent any credit.

30 March 2016: an N Group caseworker attends on the mother

1. It seems that a caseworker from N Group, an intensive family support programme, conducted a home visit to the mother on 30 March 2016. Notes of that interaction include that, during conversation around the child living for half of the time with her father, the mother started to cry and said she missed the child when she was with him. When asked by the caseworker, the mother denied any current issues with drug use, said she did not hit the child now and that the incident with the coat hanger was a ‘one off’.[17]

   [17] Exhibit 3 Tab F pp 251-252.

2. The father says that, in March 2016, the child's after school care told him the child had told her friends they were going to have a “sex party.”[18]  Whilst he clearly links this reported comment to his belief that the mother had previously shown the child photos of him engaged in consensual sex with a number of other adults, it seems to me that there are other possible explanations for such a comment: for example, television, especially given the child’s reported comment to her mother at the time of the coat hanger incident. That the father was prepared to contact the Department to report his view of the causal connection between the child’s reported comment and the sexual images of him is, to me, a clear demonstration of the complete absence of trust between these parents, even before the allegations of sexual abuse were made.

   [18] Father’s affidavit filed 19 May 2017 at [81] – [82].

1 – 8 April 2016: the paternal grandmother visits the father and the child

1. I accept that the child’s paternal grandparents live in South Australia. I accept her paternal grandmother has travelled twice to see the child: the first occasion was when the child was only a few weeks of age and the second visit occurred between 1 and 8 April 2016 (that is, during the end of the Term 1 school holidays).

2. I accept the evidence given by the father, the paternal grandmother and the paternal grandfather that the paternal grandfather did not accompany his wife to visit the child in Queensland in 2016. 68. I accept their affidavits were sworn in Suburb O, South Australia and not Suburb O in Queensland.  I also accept their evidence that he has not ever met the child face to face. I accept that his visual interactions with his granddaughter have been limited to no more than, at best, a couple of almost incidental Skype communications.

What happened between the child’s return to her mother’s care on about 21 April 2016 and the asserted first disclosure on 26 April 2016?

1. Whilst it is not entirely clear, it seems more likely than not that the child transitioned into her mother’s care on about 21 April 2016.[19]

   [19] Exhibit 3 Tab F p 352.

2. I accept the father’s assertion that, during a series of text messages which I accept passed between the parties on 22 April 2016, the mother sent him the following text messages after he refused her request for money:

   a)on 22 April 2016 (between about 10.32 am and 10.39 am):[20]

   i)"Give my child and go home where can around my sister to help my child”; and

   ii)"why you keep hold on to the child for she not your blood child"; and

   iii)"She not your child"; and

   iv)"You forced your way in her life too"; and

   v)"[Mr Heaton] why you don't wanna (sic) do DNA u scared/or the truth".

   b)on 23 April 2016: ‘I wanna (sic) go home with my child.’[21]

   [20] Father’s affidavit filed 19 May 2017 at [105] and [154] – [155].

   [21] Father’s affidavit filed 19 May 2017 at [105].

3. I accept that the contents of these messages are consistent with earlier messages which I accept the mother had sent to the father on diverse occasions since their January 2012 separation – for example:

   a)on 12 June 2015, she said: "All wanna (sic) do is take my (child) and move out [South East Queensland]" and, later that day: "I'm gone (sic) get out off (sic) [South East Queensland] and go [Northern Territory] to work …";[22]  and

   b)on 16 June 2015, she said: "give my money I use it far and the child move from [South East Queensland]" and, later: “I wanna (sic) live (sic) [South East Queensland]."[23]

   [22] Father’s affidavit filed 19 May 2017 at [103] – [105].

   [23] Father’s affidavit filed 19 May 2017 at [105].

4. It is uncontroversial that the equal-time shared parenting arrangement mandated by the January 2016 consent order ended following the mother’s report that the child had disclosed to her, on 24 April 2016, that her father had sexually abused her.

5. Given that she is the first person to whom it is alleged the child made a disclosure of sexual abuse, it is necessary to undertake particularly close analysis and consideration of the mother’s credit and credibility. Of course, it is also necessary to assess the evidence given by the father (who denied any inappropriate behaviour toward the child and that he had ever sexually abused her) and, for reason which will later become apparent, the evidence given by both of the paternal grandparents.

Credit

1. I have concluded that particular care must be taken in assessing the mother’s recounting of events she alleges occurred. I consider that, where her evidence and that given by the paternal grandparents conflicts, I prefer the evidence given by the paternal grandparents. I have also concluded that, unless otherwise specifically indicated, I generally prefer the account given by the father of events to that account given by the mother, although I specifically record that I accept that he has, on occasion, sought to minimise his responsibility for acts of family violence.

2. The following matters are but examples of the issues which have arisen during my consideration of the mother’s evidence; having regard to them, I have concluded that, on occasion, the mother has simply been untruthful; I have also concluded, though, that there are other occasions on which she has simply been shown to be an inconsistent and unreliable historian.

3. I accept the submission of Counsel for the father that the mother was untruthful in the evidence she gave about the issue of her statements to N Group about having seen the child on the website of a photographer that she had located. I also accept that she was untruthful when she denied telling the child to tell her father that he was not her father and that she was not going to see him again because he had refused to allow her to have a passport so she could go to Country E.  I also accept that she was untruthful when she said that she had taken the child with her to the Suburb K Magistrates Court when her application for a protection order was being dealt with because she did not have anyone to take the child to school: I accept the evidence given by her house-mate, Ms P, who said that, if she had been asked, she would have cared for the child that day.

4. Reference to some of the entries contained in the voluminous exhibits supports a conclusion that the mother’s difficulties with veracity are not confined to matters directly relevant to the parenting issues. For example:

   a)on 16 September 2009, the mother told a social worker with whom she spoke (as a consequence of her admission to the F Hospital following referral to the Acute Care Team) that she was an only child;[24] however, her May 2017 affidavit contains the assertions that, when she lived in Country E, she did so in an apartment in the city with her mother and sister[25] and that, more recently, she remained in contact with her sisters who both live in Country E; I also note the father’s evidence that he believed the mother had two sisters and a brother, all of whom lived in Country E and that, when interviewed by Dr G on 8 June 2017, the mother told him that she was one of five children (having two brothers and two sisters); and

   [24] Exhibit 3 Tab D p 5.

   [25] Mother’s affidavit filed 19 May 2017 at [36].

   b)on 16 September 2009, the mother told a social worker with whom she spoke (as a consequence of her admission to the F Hospital following referral to the Acute Care Team) that her father was not known to her[26] but, when interviewed by Dr G on 8 June 2017, she told him that her father had worked in a local hospital in medical stores; and

   [26] Exhibit 3 Tab D p 1.

   c)on 16 September 2009, the mother told a social worker (with whom she spoke as a consequence of her admission to the F Hospital following referral to the Acute Care Team) that she had made one previous suicide attempt when she was 11 years of age (when she took an overdose of Panadol in the context of having been sexually assaulted by a female cousin) and that she had often felt suicidal as a child growing up in her circumstances, the description of which appears to have led the social worker to conclude that the mother had a background of poor parental attachment to her mother (which was said to possibly be due to her being conceived out of a sexual assault, her father’s identity being unknown to her and the fact that she was later raised by her grandmother) and which seemingly resulted in Dr Q (a psychiatrist with the F Mental Health Service) advising Dr L (the mother’s general practitioner) on 23 September 2009 that she had described an “extremely graphic, traumatic upbringing”, such that there was evidence she may have had acute post-traumatic stress reactions in the past[27], but:

   [27] Exhibit 3 Tab D pp 37, 38.

   i)when she spoke with Dr D (another psychologist) in July 2016, the mother told her that she had grown up in an intact, stable and happy family in which education, a strong work ethic and respect for others were encouraged and had experienced two single incidents of trauma as an adult (the first being when she was in Country E and was raped, which she said resulted in her infection with HIV and the second being an occasion in Australia when she said she had been sexually assaulted by a taxi driver) – her recounting led Dr D to conclude that, save for these two incidents, the mother had not made any reports of repeated or sustained historical abuse that would be likely to cause ongoing, severe psychological problems; and

   ii)when she was interviewed by Dr G on 8 June 2017, she told him that she had a very happy, healthy childhood and was extremely close to her mother.

   d)on 16 September 2009 she told a social worker employed by the local health service that she could not go ahead with legal proceedings in Country E against the perpetrator who had raped her due to their status as someone with an association to the President of Country E, whereas she told a caseworker from N Group on 4 May 2016 that she was HIV positive as a result of being raped by a family member; and

   e)whilst the notes of the mother’s attendance at Suburb K Primary Medical and Dental Centre on 15 April 2010, include that “stress +++as HIV positive, just diagnosed this week”[28] and the notes of her attendance at the F Hospital Emergency Department on 21 June 2010 record that “HIV diagnosis was 1/52 ago”[29],  both parents gave evidence that they learned of the mother’s HIV positive status toward the end of September 2009; and

   f)on 8 May 2010, the mother told the Emergency Department at the F Hospital that she had been raped in Country E six months ago whereas, on her evidence and that of the father, her reported rape occurred a couple of weeks before she spoke with him by telephone in early June 2009; and

   g)whilst the notes of the mother’s attendance at the F Hospital Emergency Department on 21 June 2010 record her advising that the father had punched her in the head several times, once in the right breast and also kneed her in the right flank[30], her evidence was that, on 20 June 2010, he  had punched her in the head several times, kneed her in the right flank, hit her on her breast and punched her in the abdomen[31] –  the last assertion being even more concerning given that, at that time, she was about five months pregnant with the child; and

   h)she told Ms AA (from the Adult Mental Health Service at the F Hospital Health Service) in about mid-November 2010 that she had a good relationship with her mother-in-law who lived in South Australia and that she was in phone contact with her, despite having only met the paternal grandmother when she visited for two weeks in about November 2010;  and

   i)when the mother saw Dr L on 30 June 2015 to discuss that she was four weeks’ pregnant, his notes include that she “denies sex.”

   [28] Exhibit 3 Tab E p 1.

   [29] Exhibit 3 Tab D p 45.

   [30] Exhibit 3 Tab D p 45.

   [31] Mother’s affidavit filed 19 May 2017 at [28] – [30].

5. A more recent and very significant example of the difficulties in the mother’s evidence can be seen when her affidavit evidence account of what she said the child told her on 24 April 2016 is compared with her oral recounting during the trial of the same incident:

   a)in paragraph 82 of her affidavit, the mother said that the child told her that  the father had put his fingers in her vagina and licked her breasts and threatened to suffocate her if she told anyone about the sexual abuse; whereas

   b)her oral recounting of the alleged conversation during her cross-examination at trial did not include the assertion that the child had told her that her father had threatened to suffocate her if she told anybody about the sexual abuse. 

6. Any further specific comments about the veracity and credibility of other witnesses will, if necessary, be the subject of later discussion.

The sexual abuse allegations

1. I immediately acknowledge that the resolution of allegations of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[32] However, a consideration of such allegations is clearly necessary given that the legislation imposes an imperative of protecting the child from harm.[33] Even absent such imperative, consideration of the allegations of sexual abuse must necessarily take priority in this case given that I accept the evidence given by Mr R (the Family Consultant) to the effect that, if the father has sexually abused the child, there is no benefit to her of an ongoing relationship with him.

   [32] M v M (1988) 166 CLR 69.

   [33] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. Conversely, if the mother has deliberately made false allegations that the child has been sexually abused by her father and has deliberately caused the child to repeat such allegations to others, then real questions exist about the benefits to the child of continuing to live primarily with her mother.

3. A consideration of whether the child has been sexually abused by her father or is at an unacceptable risk of being sexually abused by him in the future if her time with him is unsupervised is, I think, best determined by a careful analysis of the nature and particulars of the allegations, the manner in which they are asserted to have been made, the circumstances which existed at and before they were made, the father’s response to the allegations and any other relevant considerations. Such approach will also, importantly, identify that evidence which is relevant to an assessment of the father’s assertion that the child is at an unacceptable risk of suffering psychological harm if she remains living primarily with her mother.

4. Because they form part of the factual context adverted to above, it is, I think, useful to outline historical matters which relate to the father’s now adult daughter, Ms Y before addressing the asserted disclosures alleged to have been made by the child to her mother on 24 April 2016.

The allegations relating to Ms Y

1. Ms Y is the father’s daughter from a previous relationship. She was born in September 1996. The father does not have a relationship with Ms Y. His evidence was that, after the end of his relationship with her mother, he was falsely accused of sexually abusing Ms Y: he said the allegations stemmed from the way he wiped Ms Y’s vagina, instead of “patting” it dry when she went to the toilet.[34] He said he was labelled a “paedophile”, which he found appalling, repulsive and beyond offensive: he said he discontinued parenting proceedings in South Australia (by which he had sought parenting orders relating to Ms Y) because his mental health was such that he could not cope with confronting the false allegations, the Court proceedings, his inability to spend time with Ms Y, the impacts of a motor vehicle accident in which he had earlier been involved and the breakdown of his intimate relationship with Ms Y’s mother. He also admitted that, at that time, he experienced suicidal thoughts.

   [34] Father’s affidavit filed 19 May 2017 at [20] – [25].

1. The father said that none of the allegations made against him were ever substantiated: he was not charged by police and the South Australian Department of Child Safety did not become involved. As far as he was aware, the case was closed.[35]

   [35] Father’s affidavit filed 19 May 2017 at [20] – [25].

2. I accept that the contents of an intake document from the Department of Human Services Family and Youth Services (South Australia) dated 22 January 2001 contains a report of allegations by an unnamed notifier that Ms Y had disclosed that her father had touched her vagina when she was in the bath and in bed; that she said that he rubbed her “minnie” (which appears to have been the term she used to refer to her vulva) and that he put his fingers inside her “minnie.”

3. During his cross-examination, the father said that he had consistently told Queensland authorities that the only allegation made against him about his interactions with Ms Y related to the way he wiped her “vagina” (which I take to be a reference to her vulva); I accept his explanation that, given he suffered from major depression when accused of sexually abusing Ms Y, this was as he remembered the allegations.  Clearly, that is not the extent of the allegations previously made against the father.

4. When asked to respond to the allegation that Ms Y had told the South Australian Department that he touched her on the “minnie” with his hands and under her clothes, he said that he was sure that, at some stage, he would have touched her there because he cared for her and had had to take her to the toilet; he said he was sure he had touched her body at some time as well, but such touching was never in a sexual way.  He denied the allegation reported to have been made by Ms Y to her mother to the effect that he had played with her “vagina” (again, I take this to be a reference to her vulva) in the bath and had squeezed her vulva area and put her finger in it; he also said that he was unaware of any allegations that Ms Y had been masturbating. 

5. He denied the allegations said to have been made by Ms Y to her mother that he had played with her “minnie” in bed and denied acting in any sexual manner toward Ms Y: he said, in essence, that he had wiped her “vagina” instead of patting it dry after she urinated because, as a young man, he did not know what else to do. The father also strongly asserted that, in his interactions with Ms Y, he did nothing wrong and did not wipe or touch her in a sexual manner.  He denied the assertion that he had ever put cream inside Ms Y’s vagina.

6. The father reiterated that he did not do anything sexually to Ms Y and that he had not done anything to the child and had not sexually abused her: he said he had used toilet paper to pat her dry following urination and had helped her wipe her bottom after defecating but, other than odd occasions when he might have helped her after that, had stopped doing that when she was probably three or four years of age.

7. I accept the father’s evidence that he has not known where Ms Y lives since the allegations were made in around 2001.  I accept that he has continued to carry a photograph of her in his wallet.

8. Noting that there is no direct evidence from either Ms Y or her mother and that the father consistently maintained his denials of engaging in any inappropriate behaviour toward Ms Y, I am not persuaded, on the evidence before me, that the father sexually abused Ms Y.

The mother’s knowledge of the details of the allegations about Ms Y

1. I accept that the father moved from South Australia to Queensland in about January 2008 to make a fresh start. He obtained the full-time employment in which he remains engaged. He continued to implement the healthy and active lifestyle he implemented after he experienced the depths of depression. He said that, when he met the mother, he was completely open and honest about his past, because he had nothing to hide and knew he had done nothing wrong.

2. I prefer the father’s evidence of the information he provided to the mother about the allegations made against him in relation to Ms Y to the account given by the mother. I am not persuaded by the mother’s evidence about the state of her knowledge of the allegations previously made against the father about Ms Y. I do not accept as likely the account she gave during her cross-examination: namely, that he had told her that he had been accused of things in South Australia, but she did not know what he had been accused of doing and he did not explain anything to her other than to tell her that “they” had taken his other child away from him.  I think it highly improbable that, if told only this information, the mother would not have persisted until she found out more. I simply do not consider it likely that, as she said during her cross-examination, she had never asked him what Ms Y’s mother had said.

3. I consider it much more likely than not that, after he had told the mother about Ms Y and the previous allegations he had faced, she called him names like “paedophile” when they argued.[36] I also accept, as more likely than not that, during an argument at some time in 2010 before the child was born, the mother went into the corridor of their apartment block and yelled “he fucked his daughter” and “he is a paedophile, he fucks children.”[37] I consider this conclusion supported by the contents of text messages which I accept the mother later sent to the father when and as he recounts. The contents of these messages also persuade me that it is more likely than not that, when they argued, the mother    would, on occasion, taunt the father by asking him where his daughter (a reference to Ms Y) was and why she did not want to see him.[38]

   [36] Father’s affidavit filed 19 May 2017 at [20] – [25].

   [37] Father’s affidavit filed 19 May 2017 at [26].

   [38] Father’s affidavit filed 19 May 2017 at [26].

4. Further, whilst the substance of their attendance is the subject of discussion later in these Reasons, it is relevant to note that, during a police attendance at the parental home on 17 December 2011, the mother said to the father, in the presence of the police, that "you're a homo, paedophile" and "you are a paedophile and you touch our daughter."

5. The contents of this record completely contradict the mother’s evidence, when cross-examined, that she had never told the father he was a paedophile and had never told him that he had touched his daughter.

6. I accept that, following this assertion, police officers from the Child Protection Investigation Unit subsequently attended at the parties’ home whilst the father was absent. I accept that, on 17 January 2012, they spoke with the mother about the fact that, in the presence of police officers, she had previously told the father he was a “paedophile.” Police records note that the mother assured police that she only made these comments when she was feeling very angry with the father – an assertion that corroborates the father’s evidence of her comments to him during arguments between them. I also accept that the mother told police on this occasion that she was absolutely sure the father was not a paedophile and that he was a very good father to the child.[39]

Medical consultations for the child before 24 April 2016 (the date on which the mother alleges the first disclosure was made)

[39] Exhibit 3 Tab A pp 58 & 59.

1. When the child was seen by Dr L at the S Medical Centre on 2 December 2013, she is reported to have looked well; despite this, there was a “trace of pus” in her urine and urine pathology was requested. I accept that, when the child was seen at hospital on 25 January 2015, she looked well, alert and happy; I accept that the notes record that she lived with her mother and father.

2. I accept that the child was seen at the Suburb K Medical and Dental Centre on 12 April 2015. The notes of that attendance record that she presented with a blister and skin splits in her anus and an infected wound to her anal orifice. There was no bleeding or trauma. The notes also contain that this presentation is quite common (I infer, for children of her age); she was seen to be happy. The treating doctor recommended her wound be dressed daily with Betadine and, if it remained unhealed after the prescribed course of antibiotics was administered, she would be referred to a specialist. The contents of the notes of this attendance suggest that the father was the parent who took the child to the medical centre on this occasion.[40]

   [40] Exhibit 3 Tab E p 10.

3. I accept that the child returned to the Suburb K Medical and Dental Centre on 18 April 2015. Examination that day revealed only a small anal fissure, which the treating doctor recommended be managed by washing her anus after toileting.[41]

   [41] Exhibit 3 Tab E p 10.

4. I accept that Dr L saw the child on 2 October 2015 about a urinary tract infection, with a history of burning on micturition. He recorded that she presented with no fever, asthma or allergies and was healthy.[42]

   [42] Summary of Records from ‘Review of S Medical Centre Notes regarding family’ prepared by the Independent Children’s Lawyer, contained within psychiatric report of Dr G, filed 11 August 2017 at p47.

The asserted first disclosure: 24 April 2016

1. The mother said that, on 24 April 2016, the child disclosed to her that she had been sexually assaulted by her father whilst in his care. She said that the child described to her that her father had put his fingers in her vagina and licked her breasts and threatened to suffocate her if she told anyone about the sexual abuse. The mother also said the child complained to her about having a sore hip from being pushed by her father; she also complained around this time of having pains in her belly and a sore bottom on occasions after she had spent time with her father.[43]

   [43] Mother’s affidavit filed 19 May 2017 at [80] – [84].

2. I have already remarked on the difference in the mother’s accounts of this conversation.

3. I note that, during her cross-examination, the mother said that, until 24 April 2016, she believed everything was fine between the father and the child and that he was not a threat at all to her; she said that, until then, she had not thought he could have done anything bad to their daughter. Whether that was truly what she thought is impossible to tell; what is possible, though, is to know what she had previously said in writing. Whilst the mother accepted during her cross-examination that the father had listed her in his phone in the manner demonstrated by the text messages sent on 16 December 2014, she denied sending a text message to him that day which asserted that he “fucked her and fucked her and treated her (the child) nice by fucking her”: she said the father had hacked into her phone when she gave it to him to fix her and that he had used her phone to send the text message, in which he accused himself of fucking the child and treating her (their daughter) nice by fucking her, to himself.  I do not accept this aspect of the mother’s evidence at all; this assertion was not suggested to the father during his cross-examination.

4. Similarly, I do not accept the mother’s denial of the assertion that she sent the father a text message on 19 January 2015 in the following terms:

   Your mother who have a son like you who fucks your own kids.  Go and have man fucking you arsehole.  Drop the child here when you pick her up.  Ask not give money for the child.  I will stop her from going day-care.  Will give the one-eight-eight to help buy food.

5. I do not accept at the father sent himself this message using the mother’s phone. I do accept that it was sent to him by the mother and I consider that it demonstrates the manner in which she communicated with him on occasions. I also consider the content of texts such as this one cast a significant shadow of doubt on the contention that the mother genuinely considers that the father sexually abused the child and is a risk to her: after all, she agreed to and implemented the equal time parenting regime after she made this comment; it is almost impossible to conceive that she would have permitted the child to spend unsupervised block time with her father if she genuinely thought on 19 January 2015 what she put into writing that day.

25 April 2016: the child is seen by Dr L

1. I accept that the child saw Dr L at the S Medical Centre on 25 April 2016. The mother said he diagnosed the child with a sore vagina, a urinary tract infection ("UTI") and grazing above her pubic area; however, there is no mention in his notes of these diagnoses on that date. I note, though, that the mother said the child had previously suffered UTIs on two occasions after spending time in her father’s care.[44] As set out earlier, it appears she had been presented to a doctor in early October 2015 with a urinary tract infection.

   [44] Mother’s affidavit filed 19 May 2017 at [57c].

2. According to Dr L’s notes, he saw the child on 25 April 2016 in what is described as a “situational stress situation.” He also recorded that:

   Seems very comfortable with mum and dad. Says no fear of either. Loves both a lot, says never beaten, hurt. Bathes alone and says no one interferes with her, get in her bed. Happy to be with both parents.[45]

   [45] Exhibit 3 Tab B p 6.

3. The content of this record certainly suggest that Dr L made some inquiry of the child about whether anyone had acted inappropriately toward her and that, when she did so, she negatived the prospect.

4. During her cross-examination, the mother explained that, when she took the child to Dr L on 25 April 2016, he spoke to the child and she denied to him that she had been sexually abused.  However, during a later aspect of her cross-examination, she said that, when the doctor asked the child whether anybody had touched her in a wrong way, she just shook her head. 

5. During her cross-examination, the mother accepted that Dr L told her, on 25 April 2016, that the child had not made any disclosures to him.

25 April 2016: the mother is seen by Dr L

1. Dr L also saw the mother on 25 April 2016. Again, he described this consultation as involving “situational stress situation.”  According to his notes, the mother told him that the “whole situation” had started to stress her out; that her “ex” was taking advantage, her daughter was acting out and she was fearful of “losing” her daughter.[46]

   [46] Exhibit 3 Tab B p 29.

2. It seems that Dr L encouraged the mother to talk to the father, to involve him and to call the police if she was in doubt. In fact, he offered to call the Department. According to his notes, the mother said there was no evidence yet, and she would call the police.[47]

   [47] Exhibit 3 Tab B p 29.

25 April 2016: the mother takes the child to the father’s home

1. I accept the mother took the child to the father’s home on the morning of 25 April 2016. He said she demanded that he give her the child’s iPad and yelled and asked him how he could do this to the child. He said he did not then know what she was talking about.[48] The mother’s account was that she asked the father about the disclosures she said the child had made to her about him sexually abusing the child; she said she was very upset, did not know what to do and did not even know whether to believe what the child had said to her: rather, she was trying to find out “the truth” about what had happened.[49]

   [48] Father’s affidavit filed 19 May 2017 at [43] – [46].

   [49] Mother’s affidavit filed 19 May 2017 at [51] – [52].

2. The father said that, during this visit, the mother told him that the child had something to tell him and yelled at the child: "tell him, tell him!" He said the child did not say anything to him, even when he told her that she could tell him whatever she wanted to and would not be in trouble. He said that, when the mother told him the child had hurt her leg and was limping (and blamed him for it), he told her she should take the child to the doctor if she was in pain. His evidence was that, at this stage, he had no idea what the mother was talking about.[50]

   [50] Father’s affidavit filed 19 May 2017 at [43] – [46].

3. During her cross-examination, the mother initially said that, when she went to the father’s home on 25 April 2016, she told him that the child had made statements to her that he had put his fingers in her vagina, licked her breasts and had threatened to suffocate her if she told anyone about the sexual abuse.  However, when it was suggested to her that the father had recorded their conversation, she first said that maybe he had left some things out; she then aid that, when she told the father the things she said the child had told her, he said that was not true; she said that, when he called the child to come and talk to them, she (the mother) asked him to hear her out; she also said she told him that she was not saying that he did these things, but wanted to understand what was going on and why the child would have said those things to her.  That is, on her recounting, she in fact told the father that she was not saying that he had done to the child what she (the mother) said the child had said to her.

4. When asked during her cross-examination whether she accepted the father’s denial of inappropriate behaviour at that time, she said she did not know what to believe that day, that she could not understand why their daughter would say things like that about her father and that she had trusted him to care for the child. 

5. Given the texts the subject of the following discussion, it seems clear that the uncertainty the mother spoke of during her cross-examination did not persist for long.

27 April 2016: the mother texts the father

1. The father said that, on 27 April 2016, the mother sent him a number of text messages in which she accused him of hacking into her emails; she also asked why Australian law would give a child to a father who “touch”.[51] I accept that her text messages (which I accept she sent between 5.50 am and 10.44 am) included the following:

   a)at 5.50 am: "This way u collect paper to win a child to sex abuse and to blame me for u doing this to the child"; and

   b)at 9.52 am: "The. (sic) will come out off (sic) the child"; and

   c)at 10.44 am: "Why Australian low will give a child to.a (sic) father i-vho touch".

   [51] Father’s affidavit filed 19 May 2017 at [83].

2. I do not accept any suggestion that the father somehow sent himself these messages.

   27 April 2016:  N Group convenes a meeting

3. According to notes created by N Group, the mother told a “notifier” about the asserted disclosures on 27 April 2016. That day, N Group convened a meeting or case review at which the mother’s statement about the child’s asserted disclosures to her was outlined. It seems that, as the child was due to go into her father’s care on 29 April 2016, in accordance with the terms of the January 2016 Consent Order, a caseworker expressed concerns about the potential for “further” harm to her; it was decided that a caseworker would visit the mother on 28 April 2016 to discuss her obtaining legal advice and interacting with the Child Protection Investigation Unit.

4. The reference to “further harm” certainly suggests that, at that time, the caseworker had accepted as established that the father had acted abusively toward the child in some way.

5. It seems that it was also thought that a caseworker might engage the Department in discussion about the case, given that, at that time, a Child Safety officer had apparently expressed the view that the father’s presence in the child’s life was a protective factor for her because of Departmental concerns about the mother’s mental health and the impact of this on her ability to parent the child appropriately.[52]

   [52] Exhibit 3 Tab F p 248.

27 April 2016:  an N Group caseworker attend unannounced on the mother at her home

1. When an N Group caseworker attended unannounced at the mother’s home on 27 April 2016, she was sobbing and inconsolable. According to their records, she told the caseworker that the child had told her that her father had been touching her. It is also noted that she reported that she (the mother) had observed the father placing his little finger against the child's vaginal area whilst buckling the child into the car and that, at this time, the child was staring intently at the father’s hands and biting her bottom lip as she waved goodbye to her mother.[53]

   [53] Exhibit 3 Tab F pp 249, 351.

1. I accept that, whilst in hospital on 30 November 2010, the mother denied the existence of domestic violence to a hospital social worker and said that she and the father sometimes argued because he tried to take over and thought his way of doing things was best. I accept that a worker from N Group contacted the mother twice in September 2011 to speak with her about the possibility of moving into a refuge.

2. I note that on 5 October 2011, Dr H (a psychiatrist) told Dr BB that, having seen both the mother and the father that day to assess their relationship issues, both denied any physical violence in the home at the moment.

3. However, I accept that, on 27 November 2011, police attended at the parents’ home following a complaint by the father. He alleged that, when the parents wrestled over whether the mother would throw out some frozen food or not, she bit his left hand and would not let go, so he punched her to the forehead twice and then kneed her to the side of the leg to make her let go. He said that, whilst the police intended to arrest the mother, she had a panic attack which required that an ambulance be called and he decided to withdraw his complaint out of concern for her health. In complete contrast, the mother said that, when the father had previously been physically abusive to her and she had threatened to call the police, he would initiate the call and pretend that he was a victim of domestic violence. She said that he used the marks he had on him as a result of her acting to defend herself and that, by the time the police arrived, she would be upset and he would be calm and the police would accept his version of events. She said that, on this occasion, the father punched the side of her face and put his hand around her mouth (which resulted in his nails cutting into her skin) and started to knee her from behind; she said she bit him on the hand to prevent him from suffocating her and he let go of her.

4. The documents record that the police observed minor injuries to both parties (minor scratches to the mother’s face and a minor lump on her head; the father had a bite injury to his right hand) and that both parents actively engaged in an assault of the other; both parents refused to co-operate fully with police in this and earlier matters. It was thought that obtaining cross domestic violence orders might reduce the risk of further events. I note that the police concluded that both parents contributed equally to the situation during which the child was present.

5. I note that police attended at the parents’ home on 17 December 2011 as a consequence of a parental argument about the mother’s attendance at church; it seems that the father commented about the child getting brainwashed at church and that, in response to this, the mother said to him that "you're a homo, paedophile" ... "you are a paedophile and you touch our daughter."

6. I accept that police attended at the parents’ home on 8 January 2012, after receiving complaints of a verbal argument. According to the police records, the parties had been yelling insults at each other whilst the child was present. Their argument seemed to have arisen over how to manage the child’s behaviour, which led to the father calling the mother an idiot and her telling him that he was gay; he then told her not to cook his food to eat it and asked her whether she was “brain dead”. When spoken to, each party gave a different version but both agreed their argument had been verbal and neither wanted to make a formal statement or complaint.

7. As consequence of the matters summarised above, a number of domestic violence orders, to which the mother and father have been parties, have been made:

   a)on 1 March 2010: an order, which was to expire on 8 September 2010, was made to which the mother was the respondent;[90] and

   b)on 8 September 2010: an order, which was to expire on 7 September 2012, was made to which the mother was the respondent; and

   c)on 30 November 2011: an order to which the father was the respondent was made; and

   d)on 29 March 2012: a temporary order was made to which the father was a respondent (expired 5 April 2012); and

   e)on 5 April 2012: an order to which the father was respondent was made, to expire on 4 April 2013.

   [90] Exhibit 3 Tab A p 3.

8. Any thought that the aggressive and violent interactions between these parents stopped immediately once they separated is quashed by the evidence given by each of them about an event on 29 January 2013: on the father’s account, when he attended at the mother house to give her shampoo and conditioner he had bought for the child, the mother was unhappy at the brand and started to yell at him; she had the child in her arms; he said that, as he walked out of the front door, the mother repeatedly scratched his face, leaving visible scratch marks on the same; he said he did not report this to police because of his compassionate feelings toward the mother. In contrast, the mother said that she was forced to scratch the father’s face to prevent him from assaulting her – she said he held her by the face and was squeezing her face and that she was in pain and flailing her arms in an attempt to prevent him from hurting her further.

9. A further incident occurred on 28 August 2015: the father’s account is that, after he refused to give the child $20.00 so that she could go to the local show with her mother (as he could not afford it because he had just given the mother $500.00 to meet her overdue rent), the mother yelled at him “what kind of father are you?”; he responded by calling her a “moron”; he also alleged that, when he was settling the child into her car-seat, the mother hit him on the left side of his face with a closed fist and broke his glasses; he said that, when he then told the mother not to come to his home anymore, she gave him the finger and drove off. He said he did not apply for a protection order because he felt sorry for the mother and knew that she was not in good health. Again, in complete contrast about the most significant aspect of the altercation, the mother’s account is that she attended at the father’s home on that day to collect some tickets and money for rides because he had promised to give her the same so that she could take the child to the show; she said the father became violent towards her during this visit and punched her in the face; she then pushed him and knocked his glasses off and they broke. She said she had a split lip from the punch to her face and that the child told her it was bleeding after they left outside the father’s house.

10. Irrespective of the party whom could be regarded as the “aggressor” in this incident, it is clear that the child was exposed to behaviour by each of her parents that was completely unacceptable and potentially harmful to her.

11. I accept that a temporary protection order was made by the Suburb K Magistrates Court on 24 May 2016. I accept that the mother was the aggrieved party and the father the respondent and that the child was a named person protected by the order. The mother said that she sought such order so that the disclosures the child had made about being sexually abused by her father could be investigated without his interference and so that the child was protected from being subjected to any further abuse by the father.

12. I accept that, on 24 November 2016, on the basis of the father’s undertaking (to remain in force for 12 months) without admission to be of good behaviour and not commit acts of domestic violence toward the mother, the mother withdrew her application for a Protection Order.

13. I accept that, after this, the father did not want to have any contact with the mother and that he has not done so other than as required in legal proceedings.

14. I accept Mr R’s summary of the father’s historical interactions with the South Australian police force in that this included him previously driving under the influence of alcohol and various related incidents and that there had previously been police involvement regarding family violence toward a previous partner in what Mr R described as “not dissimilar” themes to those described by the mother.

15. I accept that the father told Mr R in January 2017 that he had been involved in a very erratic and volatile relationship with the mother; he said that he felt then that he had been a “ticket into Australia”; he described their relationship as a destructive one and said that the child had been exposed to a lot of their behaviour: he described that he and the mother had engaged in verbal and physical altercations which was “both ways.” I note that Mr R assessed the father as minimising and dismissing his behaviours toward the mother.

16. I note that, in late January 2017, Mr R expressed the view that both parents had probably perpetrated family violence towards the other during their relationship; I note he believed there were times when the mother acted in a physically aggressive manner towards the father, but also note that he did not consider this to be pervasive. I note that Mr R considered that the father was responsible for a pattern of coercive-controlling family violence, which he described as including the conscious use of intimidation, control, and coercion in his interactions with the mother. I also note that Mr R considered that the father was inclined to dismiss and minimise his actions in this regard. I accept the general tenor of Mr R’s evidence in this respect.

17. I accept that, when interviewed by Dr G on 1 June 2017, the father told him that the relationship between himself and the mother progressively deteriorated and that she had become increasingly irritable, aggressive and hostile towards him; he said she was physically violent toward him, very cruel and taunted him by picking on his sensitivities. I accept that, when interviewed by Dr G on 8 June 2017, the mother told him that, after she married the father, she found him to be controlling and coercive (in that he limited her contact with friends and asked who she was talking to on the phone and checked on her whereabouts) and that he subsequently physically assaulted her by punching her, kneeing her and pulling her hair, including an occasion when she was holding the child in her arms.

What Orders are in the child’s best interests?

Allocation of parental responsibility

1. The presumption that it is the child’s best interests that her parents have equal shared parental responsibility for her[91] does not apply in this case. This is because I am satisfied there are reasonable grounds to believe that both parents have engaged in family violence. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the child’s best interests being the paramount consideration[92]).[93]

   [91] s 61DA and s 61DA(2)  of the Act.

   [92] s 60CA and s 65AA of the Act.

   [93] Cox & Pedrana [2013] FamCAFC 48 at [19].

2. If there is an order that the child’s parents are to share parental responsibility for her, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to her, such order requires the decision to be made jointly by her parents[94] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it. [95]   It does not, though, require that they meet in person to satisfy these requirements or that their communication is necessarily long or involved.

   [94] s 65DAC(2) of the Act.

   [95] S 65DAC(3) of the Act.

3. I note that, as long ago as 5 October 2011, Dr H (a psychiatrist) told Dr BB that, having seen both the mother and the father that day to assess their relationship issues, it was quite clear they had significant difficulties with communication. In referring them to a Mr GG for communication counselling therapy, Dr H said "they have considerable issues relating to significant difficulties with communication. I believe [Ms Heaton] and her partner, [Mr Heaton] are quite ill-matched and that events overcame them that led to their marriage.”

4. I accept that records from the Suburb K Medical and Dental Centre noted, on 19 January 2014, that both parents had different opinions about health: the father’s view were described as “western mainstream”, whilst the mother’s approach was described as “alternative remedies/naturopath healing.” The notes also record that the mother was trying to get the child to be dairy free and gluten free due to her blood group, but the father disagreed there was any issue and gave her cows’ milk when in his care. Whatever may have been these historical differences, nothing was made of them during the course of the trial.

5. Further, whilst the evidence appeared to suggest that the mother was, to some degree, a practising Catholic and the father an atheist, I accept his evidence to the effect that he did not oppose the mother’s wish to have the child christened: I also accept that he told the mother that it was up to her if she wanted to have her christened. Thus, despite holding different views, the father was able to accommodate the mother’s approach to religion, at least to some extent.

6. That he was able to do so appears to support Dr G’s evidence that, in effect, save for the degree of mistrust and bitterness which existed between the parents, there was nothing in the father’s profile (being his specific characterological traits) to suggest that he would not be able to co-parent the child with the mother.

7. In addition, the father accepted, during his cross-examination, that it was in the child’s interests for both of her parents to consult each other about important decisions relating to schooling, education and the like. Given that he considered that it would be very difficult for them to communicate face to face, he thought they could use other means to do so.

8. I note that Counsel for the father submitted that the Court would conclude that it was unlikely that these parents would be able in the future to cooperate and communicate so as to be able to make a joint decision about major long-term issues relating to the child.  He submitted, therefore, that the order that was in her best interests was one which accorded to one parent sole parental responsibility and provided for the other to have the opportunity to provide input into the ultimate decision. 

9. Whilst I accept that the parents have not really communicated since about May 2016 and that, before that, they communicated via telephone, text and occasional person-to-person interactions and that each holds feelings of antipathy toward the other, I nevertheless consider that it is in the child’s best interests for there to be an order that her parents have equal shared parental responsibility for decisions about major long-term issues.

10. Whilst I accept that some may consider this conclusion unusual, I have concluded that it is not in the child’s best interests for one of her parents to be able to determine such matters unilaterally or without involving the other properly in the process. I am not persuaded that empowering one parent about such issues, to the exclusion of the other, is in this particular case, an outcome that is in the child’s best interests.

11. I also particularly note that, despite all of the matters about which they have disagreed, there is nothing to suggest that there remains disagreement about whether, for example, the child will attend a State school  (and, in fact, the father said that he would continue her enrolment at her current school if that was thought best) or whether she could be introduced to religion whilst in her mother’s care and to the absence of religion whilst  in her father’s care; further, despite the mother’s historical preference for alternative medicine, it is clear that she has regularly taken the child to see Dr L and that she has regularly received “mainstream” medical treatment herself.

Living and spending time with Orders

1. It was not suggested by either parent that there are any particular practical difficulties and expenses associated with the child spending time and communicating with each of them or that any such difficulty or expenses which exist are such as to substantially affect her right to maintain personal relations and direct contact with both of them on a regular basis.[96]

   [96] s 60 CC(3)(e) of the Family Law Act 1975 (Cth).

2. The father’s case acknowledged the likely impact on the child if the orders he sought were made. However, it was submitted, in essence, that the risk to her emotional and psychological well-being of continued exposure to her mother’s primary parenting is so significant that the likely adverse consequences and impacts of the changes inherent in the father’s proposal are outweighed by the likely benefits for the child of being protected from the same and receiving her primary care from the father. I have taken this submission into account in arriving at the decision I have made about the terms of the order which are in the child’s best interests now.

3. In arriving at that determination, I have also accepted that the father is prepared to do whatever he needed to do to ensure that the child settles into his care and resumes some sort of routine and that he has relatively significant leave available to him to assist in this process. I have also noted that, whilst the father sought that the child live primarily with him and, after a moratorium over her time with her mother, spend initially supervised time with her mother, his proposal at one stage also included that, after the passage of time, she would spend between 9.00 am and 5.00 pm each alternate Saturday with her mother and that, what happened thereafter would depend on how the child and her mother reacted.

4. In arriving at my conclusion that it is in the child’s best interests that she immediately start to spend unsupervised time with her father on a weekly basis and that such time increase in the manner prescribed by the orders I will make (as set out at the commencement of these Reasons), I have taken into account and accepted the evidence given by both Dr D and Mr R about the importance of challenging the child about something she might believe about her father if it is considered not to be true; that one of the ways of ensuring that she is able to reassess her view about him is to ensure that she is provided with sufficient time with him to be able to form her own opinion of him; I have also taken into account the relatively limited time she has spent with him since May 2016 and my assessment that a change of her primary care at this time in her life is simply a change that is too significant and too likely to be accompanied by too significant a disruption and likely deleterious impacts for her to be asked to manage the same now.

5. I note that Dr D said that she considered that, if the child believed something about her father that was blatantly not true, she should be challenged in relation to that in a therapeutic sense because, in essence, it is important to ensure that she is not making stories up.

6. I also note and accept Mr R’s evidence to the effect that, if the child was to continue to believe that her father had sexually abused her when, in fact, he had not, that would be of great concern. Whilst I accept that Mr R also said that he thought that the child moving to live primarily with her father would go a long way to correct any such belief, he expected that any such move would be attended by an adjustment period; he also said, and I accept, that provided the child’s experiences in her father’s care were positive and not adverse or reminiscent of the beliefs she may hold about him, she would adjust. Whilst I accept that such evidence was given in the context of a consideration of a change of primary care-provider, I consider it apposite to circumstances where the child initially remans living primarily in her mother’s care but then, after a progression of increasing time with her father, transitions into an equal time parenting regime.

1. Whilst I fully accept that others may consider a conclusion that it is in the child’s best interests to return to living for equal periods of time with each parent to be unusual in the circumstances of this case, I have concluded that such a regime will be in her best interests given: the unique circumstances of each of her parents; the reality of her likely strong attachment to her mother; the paucity of time she has more recently spent with her father; the likely attendant adverse impacts on her of being removed from her mother’s primary care now; that she will benefit from the opportunity to spend time with both of her parents; that both parents need to engage in paid employment in order to support themselves and the child and that it is likely that she will, over the period provided for in the orders for increasing time with her father, be afforded the opportunity to develop her own independent view of him as a parent.

2. I have also taken into account Mr R’s evidence that there is a risk that disrupting the child’s long-standing primary care arrangement has the potential to cause bigger problems for her than the benefits it is intended that she receive from such a change. I have also placed particular weight on the fact that Mr R emphasised that, if the Court found either that the father had not sexually abused the child and/or that he did not pose an unacceptable risk to her – as I have – the primary objective upon which focus needed to be maintained was to enable the child to address her belief system about her father, so that any beliefs she might hold about him about this issue can fade. I consider that according the child the opportunity to spend increasing amounts of time with her father will give her the opportunity to address those beliefs about  him which she might actually hold (whatever they are), as opposed to those comments about him which she has made.

3. Whilst I accept that the implementation of the orders I intend to make will necessarily involve further change for the child, as she adapts to the resumption of unsupervised time with her father, I note Mr R’s opinion that she did not present as a child who was particularly developmentally vulnerable or as a child unlikely to be able to cope with change.

4. In making the orders which will be made, I have also placed particular weight on the importance for the child  of ensuring that she is not asked to deal with too quick a diminishment in the sense of security adverted to by Mr R as likely experienced by her in the care of her mother; the orders to be made are intended to afford the child sufficient time to adjust to each stage of increased time with her father, whilst providing her with the reassurance that she will continue to have the opportunity to interact, spend time and continue to develop a relationship with her mother.

5. Whilst I have concluded that it is in the child’s best interests to spend weekly weekend time with her father initially, the orders to be made will, over time, permit her to spend weekend time with her mother also. Further, as the time the child is to spend with her father increases, as many changeovers as possible will occur via school (or, where that is not an option, in a public place) so as to minimise the possibility that the child may again be exposed to parental conflict.

Orders preventing the child’s continued attendance on Dr D

1. During her cross-examination, the mother said that she intended to have Dr D continue to see the child. During her cross-examination, Dr D rejected the suggestion that the child’s assertions were a complete fiction; she considered that there was “enough” in what the child had been recorded as saying to establish that she believed that some of these things happened. I am not necessarily persuaded that, at her age, the child necessarily fully appreciated the meaning in what she was saying when, for example, she was interviewed by police: given this conclusion, I am not necessarily persuaded that she had internalised an actual belief about her father or that she actually believed that these things had happened to her, as opposed to her saying to others that they had happened.

2. During his cross-examination Mr R expressed his opinion that, given that Dr D’s ongoing interventions appeared based on a belief she had formed that the child had in fact been sexually abused, then it would be in the child’s best interests for her therapeutic intervention to cease. I accept his evidence in this respect.

3. Given my conclusions about Dr D’s likely views about the allegations and the findings I have made about them, I am not persuaded that it is in the child’s best interests that she continue to attend on her; I consider it appropriate and necessary that an order is made restraining the mother from taking the child to see Dr D in the future.

Orders preventing the child’s removal from Australia

1. The father sought orders by which the parents are restrained from removing the child from Australia without written agreement or order of the Court. He did so because he was concerned the mother would not return the child to Australia if permitted to remove her from this country.

2. In particular, he relied upon the mother’s previously asserted desire to return to Country E with the child:

   a)on 7 February 2011: the mother told a worker at the F Hospital that she felt homesick and wanted to go home to be with her family, but was aware the father would not let her take their daughter back to Country E and that she would not go home without her; and

   b)on 5 October 2011: the mother told a psychiatrist at the F Hospital that she would dearly love to visit her mother in Country E, but the father refused to allow her to take the child; and

   c)on 6 December 2011: the mother told a psychiatrist at the public outpatient clinic of the F Hospital health service that she wanted to return to Country E with the child, but the father would not allow the child to go there to live; and

   d)on 19 December 2011: following her admission to the adult mental health service (until 30 December 2011), it was noted that the mother would like to return to Country E but was prevented from doing so by multiple complex immigration issues and “control issues” by her husband – although it was also noted that she realised that the child’s quality of life and her own health care needs would be better met by staying in Australia; and

   e)on 21 December 2011: she told a nurse from F Hospital Health Service that her main concern was her controlling husband who was not allowing her to go to Country E to see her ‘very sick’ mother and she indicated that she felt trapped here; and

   f)on 21 December 2011: she told a worker with ACT that the father was refusing to help her apply for a visa for the child to travel to Country E because he did not want her (the mother) to take the child to Country E to meet their own family; she said he encouraged her to go back to Country E without the child but, as the child was all she had in Australia, she would not go anywhere without her; she also said that she was unwilling to go back to Country E to see her mother without the child and the father would not agree to her taking the child or agree to help with the process to have a visa done for the child in case she did not return with her to Australia.

3. During her cross-examination, the mother accepted that, on 19 December 2011, she told a caseworker from N Group that all she wanted to do was go back home to Country E; she agreed that she had not wanted to go for a holiday but had wanted to return to Country E permanently and said that she had wanted to go home. She accepted that, during arguments with the father during their relationship and after their separation, she had told him that she wanted to take the child to live with her in Country E.  She accepted that she did not “mention” returning to Australia or bringing the child back to Australia if she left with her to travel to Country E.  She also accepted that, as their relationship broke down, she wanted more and more to return to Country E and that, when she raised this issue with the father, he told her that he did not want her to take the child to Country E; she accepted that she knew that the father was never going to agree to her taking the child to Country E and that she would never be able to do so in the circumstances that she was in at that time.

4. Whilst I accept that many of the mother’s comments about taking the child to Country E were historical, I consider the most appropriate order to be one whereby both parents are restrained from taking the child from Australia without the written consent of the other – particularly given that the orders to be made will not accord at all with those sought by the mother.

Orders for the provision of Orders, Reasons and reports

1. Counsel for the Independent Children’s Lawyer submitted that it was the child’s best interests for the father to be at liberty to provide a counsellor with a copy of the Order, the Reasons for Judgement, Mr R’s report dated 1 March 2017 and Dr G’s reports dated 3 June 2017 and 19 June 2017 respectively.

2. The orders to be made specifically permit the provision of specified material to specified persons in the manner I consider most appropriate.

Final comments about the terms of the parenting orders to be made

1. I accept the thrust of Mr R’s evidence to the effect that it should not simply be assumed that the child will need to continue in therapy of some sort; I accept his view that, as she is at school, her teachers are likely best placed to assess how she is coping with changes in her life. Given this, the child’s future attendance at, or participation in, therapy will, I consider, best be determined by her parents, perhaps with the benefit of input from appropriate persons at her school.

2. To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the child’s best interests because such orders will, for example, enable both parents to be kept informed about her and her progress; the orders are also intended to ensure, as far as possible, that the child is protected from the harm which may be caused to her as a consequence of exposure to derogatory comments by each parent about the other. In this regard, I accept Mr R’s evidence that he had attempted to reinforce the imperative of both parents speaking positively to their daughter about each other.

3. To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in the child’s best interests.

4. For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of the child’s circumstances, as established by the evidence before me and as adverted to above, are now in her best interests.

I certify that the preceding six hundred and sixteen (616) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 April 2019.

Associate:     

Date:              18 April 2019