Heriot & Maverick (No 2)

[2012] FamCA 986

FAMILY COURT OF AUSTRALIA

HERIOT & MAVERICK (No 2) [2012] FamCA 986

FAMILY LAW- CHILDREN- Best interests of the child- Allegations of Sexual abuse of the child by the father – Whether there is an unacceptable risk of sexual abuse-Finding on the balance of probabilities sexual abuse of the child has not occurred and there is no risk of harm to the child-Where the child is not spending time with the father-The benefit of the child having a meaningful relationship with the child- Consideration of orders that will facilitate the reintroduction of the child’s time with the father

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
In the Marriage of B & B (1993) FLC 92-357 at 79,778
M & M (1988) 166 CLR 69

APPLICANT: Ms Heriot

RESPONDENT: Mr Maverick

INDEPENDENT CHILDREN’S LAWYER: McKean & Park

FILE NUMBER: MLC 1334 of 2007

DATE DELIVERED: 28 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1-3 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Kelly & Associates

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean & Park

IT IS ORDERED THAT

1. All previous parenting orders be and are hereby discharged.

2. The mother and the father have equal shared parental responsibility for the child V born … March 2005.

3. The child live with the mother.

4. The child spend time with the father in a two week cycle commencing Wednesday 5 December 2012 as follows:

   a.In week 1 from the conclusion of school on Wednesday or if not a school day from 3:30pm until the commencement of school on Monday;

   b.In week 2 from the conclusion of school on Wednesday or if not a school day from 3:30pm until the commencement of school on Thursday;

   c.In the event that the time the child spends with the father falls on a long weekend then the time shall conclude at 6:00pm on the Monday of the long weekend;

   d.For all Victorian gazetted school term holidays, from the conclusion of school on Friday or 3:30pm if the Friday is not a school day until  6:00pm the following Sunday. The mother to have the second week of school holidays from 6:00pm Sunday to the commencement of the school term; and/or

   e.At other times as may be agreed by the parties.

5. The father’s partner Ms C be in substantial attendance for a period of 6 months commencing on the first period of time spent in accordance with paragraphs 4 (a) hereof.

6. In the event that the child is not spending time with the father on Father’s Day, the child spend time with the father on Father’s Day from 10:00am to 6:00pm.

7. In the event that the child is not with the mother on Mother’s Day then the father’s time is to be suspended from 10:00am to 6:00pm on Mother’s Day.

8. On the child’s birthday, the father’s birthday and mother’s birthday as follows:

   a.In the event that the child’s, the father’s or the mother’s birthdays falls on a day with whom the child is not living with at the time from the conclusion of school or 3:30pm until 6:00pm if the birthday falls on a school day and from 2.00pm to 6.00pm if the birthday falls on a weekend.

9. As from Christmas 2012, the child shall spend time with the father:

   a.From 5:00pm Christmas day 2012 until 6:00pm on 29 December 2012 and in even years thereafter;

   b.From 6:00pm on 21 December 2013 until 5:00pm Christmas day commencing Christmas 2013 and in odd years thereafter;

   c.The father from 6:00pm to 5 January 2013 for a period of 7 days concluding 6:00pm 12 January 2013 followed by a second period of 7 days from 19 January 2013 concluding 6:00pm on 26 January 2013 and each alternate year thereafter.

   d.From 6:00pm on 29 December 2013 for a period of 7 days concluding 6:00pm on 5 January 2014 in odd years followed by a second period of 7 days from 12 January 2014 concluding 6:00pm 19 January 2014; and/or

   e.As may be otherwise agreed by the parties.

10. As from Christmas 2012, the child shall spend time with the mother:

    a.From 6:00pm on 21 December 2012 until 5:00pm Christmas day 2012 commencing Christmas 2013 in the even years thereafter;

    b.From 5:00pm Christmas day 2013 until 6:00pm on 29 December 2013 commencing Christmas 2013 and in odd years thereafter;

    c.From 29 December 2012 during the time the child is not living with the father specified in paragraph 6(c) and 6(d) of this order until the commencement  of the school term; and/or

    d.As may be otherwise agreed by the parties.

11. Notwithstanding any other order, the child spend Easter with each parent as follows:

    a.For Easter 2013 with the father from 3:30pm or the conclusion of school Easter Thursday until 6:00pm Easter Tuesday and each alternate year thereafter;

    b.For Easter 2014 with the mother from 3:30pm or the conclusion of school Easter Thursday to 6:00pm Easter Tuesday and each alternate year thereafter.

12. Changeover shall take place at school or in the event that it is not a school day then at McDonalds Suburb A or as otherwise agreed between the parents.

13. Both the father and the mother shall provide one another with a mobile telephone contact number at all times and shall provide the other with at least 7 days prior notice of any proposed change thereto.

14. For the purposes of telephone communication both the father and the mother shall permit the child to telephone the other parent at reasonable times and no less than every second day and to also receive calls from both parents.

15. Both the father and the mother shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care and provide further particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.

16. Both the father and the mother make the available to the other parent any medication prescribed for the child so they can administer same during their time with the child as required.

17. For a period of 6 months from the date of these orders the mother ensure the child attends all scheduled school days subject to the child being unwell and unable to attend in the event of which the mother shall provide the husband with a medical certificate as soon as it is practical to do so.

18. Subject to paragraph 17 hereof, in the event that the child does not attend a scheduled school day, the parent who has the care of the child must advise the other parent in writing of the date or dates the child did not attend school and the reason for the non attendance as soon as it is practical to do so.

19. Each party authorise the other to obtain access at their own expense all information normally provided to parents by relevant carers for the child including child’s school.

20. Each of the parties shall forthwith upon receiving notification of any extracurricular special events including but not limited to concerts, parent teacher interviews, excursions and camps provide to the other party in a timely fashion a copy of such notification or in the event that no written notification advise the other party in writing of such event or if the service provider is agreeable, authorise that person or entity to provide copies of such notification directly to the other party so as to enable the other party to attend such event.

21. In the event that the father or the mother requires special items during activities which the child is engaged in, each of the parties will ensure that the special item is provided to the other parent unless they have one of their own.

22. In the event that the child is invited to a party or other special occasion at a time during the other parent’s time, the father and mother forthwith upon receiving such invitation provide the other parent with a copy of such invitation to enable the parent to respond to the invitation as they may choose.

23. The father and the mother use a communication journal and to record in the same all information to be given to the other parent regarding issues relating to the child’s care and the communication journal will accompany the child between the parties’ homes.

24. The father and the mother be restrained from enrolling or committing the child to any activity during the other parent’s time without first obtaining the other parent’s consent to such activity.

25. Within 7 days these orders be explained to the child by the ICL and Mr P, subject to his availability, and for that purpose the mother make arrangements with the ICL to enable that to occur and the mother pay any costs of Mr P for doing so.

26. The mother and the father, their servants and agents be restrained from discussing these proceedings or any matter pertaining to and including allegations of sexual abuse with or in the presence or hearing of the child or permitting any other person to do so.

27. In the event that the parties cannot agree on an issue relating to the exercise of equal shared parental responsibility and prior to issuing any further proceedings save and except with respect to any contravention proceedings, the parties attend upon a Family Relationship Centre, or such other mediation centre as may be agreed and in the absence of agreement, the Melbourne Family Relationship Centre.

28. The ICL provide the certified extract of paragraphs 66 and 121 of these reasons for judgment as provided by the Court to the Principal of the child’s school together with a copy of these orders.

29.The ICL provide the certified extract of paragraphs 27 to 34 inclusive of these reasons for judgment as provided by the Court to the Ms D of Home Access Network.

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

2. Pursuant to s.65DA(2) and s.62B, 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 hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1334  of 2007

Ms Heriot

Applicant

And

Mr Maverick

Respondent

REASONS FOR JUDGMENT

Introduction 

1. The mother in this case says that:

   On 5 of January 2012 I went to McDonalds, Suburb A, to collect [the child]. She had been at her father’s for a week of the school holidays…

   It was at this stage, about 8.00pm, I was sitting on the arm chair with the children nearby. We had a cuddle; [F] was at my feet and [the child] in my arms. I hugged [the child] and told her how much I missed her and how beautiful she looked with a missing tooth. She was very affectionate back to me and her sister. It was at this time [the child] deliberately poked me with her hand in my pubic region. This was odd behaviour for her and not something she had done before. I immediately said to her “that’s not OK, That is Mummy’s private part” I continued to say that “mum has a private part, [G] has a private part and you have a private part- it is not OK for you to touch there or for anyone to touch you there.” I had previously had a few conversations with her about “private parts” when she started school.

   I proceeded to ask [the child] “[V], has anyone ever touched you on the private part?”. She looked at me blankly and was quiet so I then asked [the child] again “has anyone else ever touched you there?” She started into a story about a couple of boys at school which I listened to but which appeared to be just a story and I said “no honey I mean has anyone ever touched you there before”. She stepped back from me and then said “yes, Daddy”. I said “What do you mean [V]? Tell me more about that”. [The child] then moved to the sofa and lay down adjacent to the arm chair I was sitting on. She lay down with her head on the cushion. [The child] said “one night when I was asleep in bed my dad came and pulled my pants down”. I was looking at her and she motioned with her right hand a repeated poking at her pubic region and she had her legs apart. I asked her why he did that. [The child] said “I don’t know” I said “What were you doing sweetie”? She said “I was pretending to be asleep.” I said “Was your dad saying anything Honey?” She said “I don’t know?” I then asked [the child], “Did you ask your dad why he was doing that?” [The child] said that in the morning she asked her Dad why he did that to her last night and he said that it was a secret between Daddy and [the child]. I asked [the child] “when was that Honey?” [The child] replied “when I was in prep”. I asked [the child] how she knew that she was in prep at the time. [The child] replied “because [Ms E] was my teacher”. (Quote checked)

2. The child who is now 6 years of age, spent time with her father in accordance with orders that were made by consent on 24 October 2007 and appears to have had a happy and otherwise unremarkable relationship with the father until 5 January 2012 when the mother says she made the statement to her that is the genesis of these proceedings. Although the father and mother do not communicate well it is clear from the mother’s evidence that until that time nothing of any significance had occurred that would have given her any cause for concern about the child’s relationship with her father and acknowledged that if not for the statement the child had made to her that day there would have been no need for any hearing before me.

3. Although the mother has now, in hindsight, expressed some concerns about the child’s past behaviour which she suggests might be attributable to the fact that she has been sexually abused by the father the whole case essentially rests on that one statement made by the child to the mother on 5 January 2012.

4. The unfortunate aspect of this case is what followed the child’s statement and its impact upon the child. From a happy little girl with apparently no problems she is now described by Mr P, the single expert witness in this case, as “…starting to internalise a very negative image and attitude towards her father.” and that she has “...started to present herself as a victim and as damaged...” Whether she is or is not in reality a victim of sexual abuse that is how she is starting to perceive herself.

5. It is the mother’s case that the child has been sexually abused by her father and is at risk in his care and that she should have sole parental responsibility for the child and that the child should not spend anytime with the father.

6. The father denies that he has sexually abused the child and it is his case that the orders made 27 October 2007 should be immediately reinstated except that he says the time he spends with the child on alternate weekends should be extended to the commencement of school on a Monday morning. This would increase the time he spends with the child from 5 nights a fortnight to 6 nights a fortnight. The mother says that if I decide that, the father should deliver the child to school on a Monday morning as she proposes that I should continue the regime of 5 nights per fortnight doing away with the overnight time in the other week.

7. The issues I must determine are as follows:

   ·    whether as alleged by the mother the child has been sexually abused by the father and whether I can or cannot find that the child has been sexually abused by the father whether there is an unacceptable risk to the child of sexual abuse if I accede to the father’s application ?

   ·    what orders are in the child’s best interests ?

Background

1. The father and mother were married in 2001 and separated in January 2006. The child is their only child.

2. Since December 2010 the father has lived with his new partner Ms C and her daughter B who is approximately 15 years of age.

3. The mother has lived with her new partner Mr G since early 2010 and they have a daughter F who is almost two years of age.

4. On 24 October 2007 the Family Court made orders by consent that the father and mother have equal shared parental responsibility and that the child live with the father in a two week cycle initially from 3.30pm on Friday until 6.00pm on Sunday in week one and from 3.30pm on Tuesday until 5.00pm on Wednesday in week 2 and from 30 June 2008 from 3.30pm on Wednesday until 6.00pm on Sunday in week one and from 3.30pm Tuesday until 5.00pm on Wednesday in week two. The orders also made provision for holidays and special occasions. The child otherwise lived with the mother. The child spent time with the father and mother in accordance with these orders until 5 January 2012.

5. On 5 January 2012 following what she says was the child disclosing to her that she had being sexually abused by the father the mother said she “asked the child if she would share what she told me with [Mr G]” and that the child had said “if you want mummy”. She said she then rang Mr G and that when he answered she had the child speak to Mr G “..and tell him what she had just told me”.

6. Mr G’s recollection of his conversation with the child was as follows:

   “Hi [V]”

   “Hi [Mr G]”

   ([the mother] in background “tell [Mr G] what you just told me”)

   [The child] said in the background to her mum “can you tell him?”

   [The mother] said to the child (“no, I need you to tell him in your own words, go on, its ok”)

   “my Dad come into my room when I was asleep and pulled my pyjamas down and touched me”

   “what did you do kiddo”

   “nothing, I pretended to be asleep”

   “oh, ok, so you didn’t say anything to him?”

   “no, I just pretended to be asleep”

   “so you didn’t say anything to him or ask him anything?”

   “no”

   “so, kiddo, did you say anything or ask your Dad about what happened the next morning”

   “yeah and he didn’t say anything about it, he said it’s a secret between daddy and [the child]”

   “did you say anything to [Ms C]?”

   “no”

   “why not kiddo”

   “dad said its our secret and not to say anything to [Ms C]”

   “oh, ok”

   “Can I talk to mum again?”

   “ok”

7. The mother said that when the child spoke to her and to Mr G on 5 January 2012 “she was quite monotone and to the point”. She also said that she did not raise the matter again with the child “...on that night or anytime since”.

8. The mother also deposed that after the child spoke with Mr G she had a quick word with him and said that she would call him back later

9. The next morning the mother contacted the Department of Human Services’ crisis line. The mother says the DHS counsellor advised her that a member of the police would call her within 2 hours. A Police Officer called the mother at approximately 10:00am and an appointment was made for the child at 11:30am that day.  The mother says that while they waited at the Police Station for the DHS worker to arrive the child played on the grass at the front of the station with another child.

10. Shortly after they arrived the family were taken to an interview room for what the mother described as “rapport building”. The mother says she told the child that she “would be waiting just outside as the man and the lady would like to talk with you alone for a while.” The child was then interviewed by Detective Senior Constable H in the presence of Ms I from DHS.

11. The mother says that DSC H came out of the room and told her that the child had repeated what she had told both the mother and Mr G and that they were taking her for a video interview. During cross-examination the mother said that the Police had mentioned that the child told them that two boys and the father had touched her private parts. The mother said that the Police had told her there was nothing to the allegation about the two boys.

1. The mother says that they went upstairs and waited for a second officer to arrive and then Ms I and the two officers took the child into another room for the recorded interview and she and Mr G waited in an adjacent room. The child was interviewed by Detective J. The mother said that Detective J and Ms I spoke to her after the interview had concluded and told her that that the child “had again said the same thing on the video interview” and that DHS made it quite clear to her that “...[the child] was not to be returned to her Father’s care”.

2. The mother says that she called the Family Court and asked what she needed to do and that the person she spoke to suggested that she obtain an intervention order. She said that she knew “…if she just didn’t send her back to her father in accordance with the Orders the child’s Father would turn up at our house.” The mother then drove to the Suburb K Magistrates Court and obtained an ex parte interim intervention order on behalf of the child. That order suspended the father’s time with the child pursuant to the orders made 24 October 2007. 

3. On 12 January 2012 when the father arrived at McDonalds to collect the child he was served with the mother’s application for an intervention order and the ex parte interim intervention order obtained by the mother.

4. The father was interviewed by DSC H at Suburb K Police Station on 30 January 2012. On 9 February 2012 the father received a letter from DSC H advising that he had “…been unable to substantiate allegations against you and as a result the matter will not be proceeded with. There will be no further action against you regarding this incident unless new information is received.”  

5. The matter was listed for hearing in the Magistrates Court at Suburb K on 27 February 2012. On that date an interim intervention order was made which permitted the father to spend time with the child pursuant to the orders made by the Family Court on 24 October 2007. Notwithstanding that the orders no longer precluded the father spending time with the child pursuant to the orders made 24 October 2007 the father received a letter from the mother’s solicitor dated 28 February 2012 requesting that he not attempt to collect the child from school pursuant those orders.

6. On 2 March 2012 the father’s solicitor wrote to the mother’s solicitor confirming that the s68R provisions of the Intervention order had been lifted, that the Police had confirmed that they would not be charging the father and that the mother was in breach of the orders that had been in place since 24 October 2007.

7. In order to prevent the father spending time with the child, she says because she was told to do so by DHS, the mother either did not send the child to school or removed her from school early on those days when the father was to collect the child pursuant to the Family Court orders. The mother arranged with the school for the child to be home schooled on those days. She reported to DHS that she was very concerned about any contact between the child and the father given the allegations of sexual abuse and given that the child had not asked to see her father. It is also clear from her evidence that even if DHS had not told her to do so she would not have permitted the father to spend time with the child.

8. DHS referred the child to SECASA for assessment and to provide counselling and on the 3 May 2012 the mother is reported to have advised DHS that the child had met with SECASA on several occasions but that the child had clammed up during those sessions. SECASA reported to DHS that during “…activities around feeling and worries, the child did not mention anything to do with the alleged incident”.

9. The father did not spend time with the child until orders were made by consent by Senior Registrar Fitzgibbon on 30 May 2012 which made provision for the father to spend time with the child supervised by Home Access Network (HAN).

10. The matter was listed for the first day of a final hearing before me on 19 July 2012. On that date the mother sought orders that until the final hearing, and it was common ground that there would be four more occasions when the child would be spending time with the father prior to that hearing, the father should spend time with the child at L Contact Centre. The father sought orders in terms of the final orders proposed by the ICL based upon the recommendations of Mr P in his report dated 2 July 2012.

11. It was the mother’s case that she had lost faith in HAN and that in particular the supervisor had left the child unattended with the father.

12. The father’s case was that the ongoing supervision reinforced doubts in the child’s mind about him that he said emanated from the mother and that spending time with the child supervised by HAN was not only unnecessary but that it was harmful to the child. 

13. I did not make the interim orders sought by the father.  I did, however, order that both Mr C and her daughter B be permitted to be present on all occasions the father was to spend with the child pursuant to the orders pending the final hearing.   

14. The father made arrangements to spend time with the child on 4 August 2012. Notwithstanding my orders Ms D of HAN notified the father by email that it was contrary to HAN’s policy for Mr C and B to be present. She advised as follows:

    Let me explain our policy. Our handbook is being revised at the moment to reflect this and other things in preparation for accreditation. The principles remain the same however.

    We are trying to observe you and your daughter alone in normal natural interaction for the Federal Magistrates Court or Family Court, to fulfil our obligation as contact supervisors, as our name is on the court order. We want to observe you and your daughter for a significant number of sessions (6 sessions, only 5 more to go) to watch repeated patterns in the interaction.

    I have said to your x partner that for the majority of the time, we need to see you with the child alone.

    …This case is a Magellan case, which is an allegation of a very serious abuse and our notes are important for you- they are often used as a bid for unsupervised access if the interaction is positive…..

    …A lot of parents think because they are paying for an access that one gets a product that supports the payee parent’s interests. It is the one business where this does not work. We can’t do that because we have to remain unbiased and neutral- what we can promise to do is to be very fair and balanced in what we observe and what we write. We are careful to let the notes do the speaking, so the court report is based on solid observed evidence.

15. This would appear to be a complete misunderstanding of the role of a supervisor in a case such as this one. I find it somewhat surprising that an organisation which holds itself out as being the available to supervise the time parents are to spend with their children would chose to disregard the very orders which are the basis for that supervision.  I would have reservations about the appointment of HAN to supervise orders of this Court in circumstances where they have taken it upon themselves to disregard those orders and impose their own conditions. If HAN is not comfortable with the obligations imposed upon them by the orders they are of course not bound by them and are free to refuse to supervise that time however they should not simply usurp the Court’s function and impose their own conditions.

16. Notwithstanding his concerns about HAN the father made a further attempt to arrange time with the child on 8 September 2012. When the child was due to arrive with Ms S who was to supervise his time with the child the father was contacted by Ms S and advised that the child did not want to see him and that Ms S would not force her to attend. The father decided in those circumstances that it was not in her best interests to pursue further time with the child pending the final hearing.    

Documents relied upon by the parties

1. The mother relied upon the following documents:

   ·    The Outline of Case document filed 26 September 2012

   ·    Her Initiating Application filed 22 February 2012

   ·    Her affidavit filed 13 August 2012

   ·    Her Financial Statement filed 13 August 2012

   ·    Affidavit of Mr O filed 13 August 2012

   ·    Affidavit of Ns N filed 13 August 2012 ( Ms N was not required for cross-examination)

2. The father relied upon the following documents:

   ·    The Outline of Case document filed 24 September 2012

   ·    His Amended Response to an initiating application filed 14 September 2012

   ·    His affidavit filed 14 September 2012

   ·    Affidavit of Ms C filed 17 September 2012 (Ms C was not required for cross-examination)

   ·    His Response to an initiating application filed 22 March 2012

   ·    His affidavit filed 22 March 2012

3. The Independent Children’s Lawyer  relied upon the following documents:

   ·    The Outline of Case document filed 27 September 2012

   ·    Affidavit of Mr P filed 18 July 2012

   ·    Affidavit of Ms M filed 16 July 2012 (Ms M was not required for cross-examination)

   ·    Affidavits of Ms S filed 20 July 2012 and 27 September 2012 (Ms S was not required for cross-examination)

   ·    The Section 69ZW Report by the Department of Human Services dated 28 May 2012

4. Documents tendered by the parties and the ICL

Legal Principles

1. The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:

   The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s60B(2). They are that unless it would be contrary to the best interests of a child:

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) and s60CC(4) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

4. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

5. When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with the parents (s65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practical to spend “substantial and significant time” with each of the parents (s65DAA(2)).

6. The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests to make orders that will best promote that child’s best interests. This was clearly stated by the High Court in (M & M (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at 76)) and “the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.”

Unacceptable Risk

1. A “…court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (In the Marriage of B & B (1993) FLC 92-357 at 79,778). The ‘unacceptable risk’ test is therefore the standard used by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”(M & M (1988) 166 CLR 69, 78). In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in allowing access outweighs the possible benefit to them from that access. The “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child.

The Evidence

1. The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking account in applying that standard of proof, the Court must take into account:

   a.the nature of the cause of action or defence; and

   b.the nature of the subject–matter of the proceeding; and

   c.the gravity of the matters alleged.

2. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:

   Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

3. I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, mother and those witnesses who were required for cross-examination. I make my findings having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

Whether as alleged by the mother the child has been sexually abused by the father and whether I can or cannot find that the child has been sexually abused by the father there is an unacceptable risk to the child of sexual abuse if I accede to the father’s application?

1. The mother says that she has no doubt that the child has been sexually abused by the father.  Prior to the hearing she had not viewed the VARE Police interview with the child or read the notes of that interview or the earlier interview which took place at 11.45am on 6 January 2012 at the Suburb K Police Station with DSC H and Ms I from DHS.

2. Having viewed the tape and having had the opportunity to read the notes of the interviews and in particular the 11.45am interview the mother was very clear that her view had not changed and what she saw was the child clearly saying that she had been sexually abused by the father. She said she found it very disturbing as a mother hearing the child describe being sexually abused by the father.

3. Mr P in his report dated 2 July 2012 concluded that it was not his “…clinical opinion that [Ms Heriot] is making false deliberate allegations of abuse, but rather I draw attention to the possibility that she is over representing information that she inadvertently extracted and co-constructed with the child, as compared to spontaneous disclosures made by the child about abuse” . In evidence in chief, having viewed the VARE tape and read the notes of the interview at 11.45am that same day he said as follows:

   ..I suspect that what the child is doing is recounting information that is a reconstruction because it is not actually coming out of her memory, it is coming out of responses and suggestions, so even in the police interview, when she is asked things of closed questions or highly suggestive questions, she is able to respond but not able to give any context to it. There’s one point that the policeman asked, “It happened in your prep year, did it happen in the beginning, middle or end?” and that’s actually a very closed, highly suggestive questions with an embedded answer.

4. The alleged abuse took place according to the child when she was in her prep year. It was Mr P’s opinion that whilst “…it might be possible for a child of her age to recall what happened to her in excess of twelve months previously, it is more common for the delay in disclosure as described by SECASA to be significantly shorter than this, reflecting at least the possibility that what the child is recounting is a reconstruction and not a recollection of events…”He also said that it “…is much more usual for children when something unpleasant and awkward has occurred to talk about what’s occurring at the time. And it is also common for children to talk about what’s occurring in their lives to their parents all the time.” 

5. It is also difficult to reconcile having allegedly recalled an incident that had occurred some 18 months prior to her discussion with the mother and the Police interview why, when she was interviewed by Mr P in June 2012 less than 6 months later, she was unable to provide specific detail of the alleged sexual abuse. When given permission to say that she didn’t remember she told him “I don’t remember much of what happened…I don’t really remember what happened”. 

6. It is clear from the mother’s description of what occurred on the evening of 5 January 2012 that she asked the child what Mr P describes as “closed” and “highly suggestive” questions. Mr P said that children of the child’s age generally communicate in a somewhat illogical and disorganised way and that the disclosure of sexual abuse in children of this age will usually be made by the child making a statement out of the blue as to what has occurred to them. In this case the child responded to her mother’s questions about whether firstly anyone had touched her in her pubic area and secondly having dismissed the child’s reference to the two boys whether anyone “else” had touched her followed by quite detailed and suggestive questions as to the detail of what had occurred.

7. When the child was interviewed by DSC H and Detective J she did not respond or make any disclosures when asked open ended questions. It was only when they asked what Mr P described as “closed” or “highly suggestive questions” that she referred to the alleged abuse and even then, it is clear that she struggles to understand the questions she is being asked and the concepts being presented to her and her answers are confused, inconsistent and as pointed out by Mr P, don’t make sense.  During the recorded interview the child also had difficulty understanding and distinguishing the difference between telling the truth and a lie. As Mr P’s said what the child was doing “...was recounting information that is a reconstruction because it’s not actually coming out of her memory, it’s coming out of responses and suggestions...”

1. During the 11:45am interview DSC H asked the child to “tell me something bad that dad does?” to which she replied “he gets McDonalds – he gets it for me sometimes.” A little while later the Detective asked the child “do you have any secrets with dad?” to which she replied that “he brought me a big slushy and I didn’t tell mum”. Towards the end of the interview he asked the child “has anyone touched you in your privates?” to which the child replied “[Q], Grade 2, [R], and dad”, the DSC H then asked her what Q did and finally said to the child “tell me about dad”.

2. At the commencement of the video interview at approximately 1:00pm on that same day Detective J said to the child “someone said that you told your mum something about your dad, did that happen?” to which she replied “yes”. She was then asked to “tell me about your dad”. The child relied that “he is sometimes cheeky, sometimes a bit naughty and sometimes a bit good”. When she was asked to elaborate on the father being naughty she described him saying that he hadn’t had a bottle of coke that day when in fact he had. The child did not make any disclosures at this stage.

3. Later in that same interview Detective J said “I heard that you told mum something this morning about your Dad… something that he did a year ago”. When the child said “yes” he asked her whether she had told her mother something about her dad that morning and she again said “yes”. He then asked her to tell him “everything about what happened with your dad”. the child said “I was asleep then he like pulled my pants down, then he put his finger in my private bit then he woke me up but I was still closing my eyes then he went out the door without pulling my underpants up, so I pulled my pants up”. The child said the father used what she described as his “rude finger” which she said was his middle finger. She also said that after her father left her bedroom he went “...and got my favourite food, that was healthy, and ran back into bed.” 

4. Having viewed the tape and read the transcript of the first Police interview and taking into account both the evidence of the mother and Mr G I agree with Mr P’s opinion that the child’s account is not internally cohesive. For example:

   ·    The child told Detective J that she was asleep when her father pulled her pants down and put his fingers in her private parts and that he woke her up after he had put his finger in her private bit. It is difficult to understand in those circumstances how she could describe what happened if she was in fact asleep;

   ·    The child said the father used his “rude” finger which she said was his middle finger although it is similarly difficult to understand how she would know which finger it was particularly as she says she was asleep at the time;

   ·    The child described her father as putting his finger “inside” her private bit but later  in the interview when she was asked whether the father put his finger inside or outside her private parts she said “outside”;

   ·    She described lying on her back and then said she was on her side;

5. There are also inconsistencies between the various accounts. For example:

   ·    The child told her mother and later Mr G that she had been “pretending” to be asleep when her father came into her room whereas she told Detective J she was asleep.

   ·    The child told Detective H and her mother that “...[Q], Grade 2, [R], and Dad” had touched her privates whereas she told Detective J that no-one other than her father had done so.

   ·    The child told Detective J that no-one other than her friend S had asked her to keep a secret. This is inconsistent with what she is reported to have told Mr G and what she told DSC H; and

   ·    The child also described her mother as pulling down her pants and shaking her bum at her which was denied by the mother. She did not repeat this statement to Detective J during the recorded interview which is consistent with Mr P’s evidence that she was responding to the suggestions that were made to her.

6. Mr P was asked if his opinion had changed after viewing the VARE interview to which he replied:

   …. there’s nothing that I would change about my conclusions, other than to highlight that that material, I think, adds an extra dimension to my concerns to do with the spontaneity or more importantly, the lack of spontaneity, the lack of consistency, the lack of clarity, the confusion with which the child presents, the detective who completed the VARE interview tried hard to ask open ended questions but couldn’t.  He inevitably had to ask very leading, highly suggestive questions and even then, the material was – the responses were erroneous. 

7. Mr P referred to what he said was the well documented social phenomenon called the Rosenthal effect “where the person’s expectation alters the response of the recipient of the question and if you superimpose upon that someone who’s in authority, someone who’s anxious, someone who’s genuinely worried about you, it’s, more that conceivable that the responses you will receive will be more in keeping with your beliefs.”

8. Both the mother and Mr G are likely to be viewed by a child of the child’s age as authority figures, as are the Police. Added to that is the mother’s level of anxiety both at the time of her first conversation with the child and leading up to the interviews with the Police and DHS.

9. Mr G said that when he spoke to the mother on the night of the 5 January 2012 she was “obviously very distressed”. Mr P described the mother as presenting as extremely distressed and anxious about the alleged sexual abuse and that had reported to him that she had been “overwhelmed with shock and emotion” after the child’s disclosure to her. I observed the mother in the witness box and observed the intensity of her feelings both with respect her belief that the child had been sexually abused by the father and to the father generally. It is hard to imagine that the child would not have been conscious of or not been influenced by her mother’s level of anxiety and her view of the father.  

10. The mother deposed that she had a quick word with Mr G on the phone after the child had spoken to him and suggested that the child watch a movie and that after putting F to bed she then called Mr G back from the front bedroom. However Mr G said in cross-examination that after he had spoken to the child on the evening of 5 January 2012 he spoke to the mother for approximately 5- 10 minutes as he felt the need to support the mother. When Ms Smallwood asked Mr G whether he had heard the mother dismiss the child from the room he tried to avoid the possibility that the mother might be criticised for discussing the issues in the child’s presence or hearing but when pressed had to concede that he had not heard the mother dismiss the child from the room prior to their conversation. Given Mr G’s obvious effort to avoid giving evidence which he thought might damage the mother’s case I am inclined to accept his evidence. If in fact the conversation had taken place later as suggested by the mother there would have been no need for him to be concerned that his answers might damage the mother’s case.

11. In all of the circumstances I am satisfied on the balance of probabilities that it is, more likely than not, that the child was present or at least within hearing during the mother’s telephone conversation with Mr G. It is also clear from Mr G’s evidence that there were further discussions between he and the mother the following morning after his return home and before they left for the Police Station. Whilst it is not clear whether the child was either a party to or could have overheard those conversations there are certainly questions in my mind about what was discussed with the child on the morning of the interview and what she was told about being taken to the Police Station given that the child not only acknowledged having spoken to her mother that morning but was able to describe what she was doing at the time or leading up to that conversation. 

12. The mother said that she told the child that they were going for a milkshake. It is hard to imagine how the child would have felt when instead of being taken for a milkshake as she was expecting she was taken to the Police Station and interviewed by Police Officers who she would certainly have seen as authority figures. If I were to accept the mother’s evidence that she had not told the child that they were taking her to the Police Station or the purposes of that visit the child might well have believed that she had done something wrong. When it was put to the mother that the child would have been terrified she said that she was “uncomfortable”. My observations of the child’s demeanour during that interview were that she appeared a little uneasy rather than fearful, distressed or anxious. I find it hard to believe that the mother would not have explained to the child why she was at the Police Station or that she was going to speak to a Police Officer and that if she had as she said not done so, that the child would have been more obviously distressed by and apprehensive about the interview process. It is also most unlikely that the child would not have understood that the reason she was at the Police Station had something to do with what she had said to the mother and been asked to repeat to Mr G the night before.

13. Of perhaps the greatest concern in relation to what the child is alleged to have said to her mother is that, even on her own version, the mother has dismissed the child’s first response to her question. This is described by Mr P as ‘confirmatory bias’ that is “the tendency to ignore information that does not conform with a central belief in favour of information supportive of that belief”.

14. The mother’s version of what the child said is that she “…started into a story about a couple of boys at school which I listened to but which appeared to be just a story…” However when cross-examined about what the child had said in relation to this issue she said that the child had told her some story about kissing but that she didn’t remember the boys’ names. Mr G’s evidence was that the child made no mention of the boys to him and during cross examination he said that he did not believe the mother had mentioned the child’s reference to the two boys until the following morning. He said the mother told him at that time that the child had diverted off and started talking about the boys at school “doing something” and that the mother had asked her again and said that she “brought her back on track to get her to answer her question”. It is also consistent with Mr P’s description of confirmatory bias, that the mother would not have mentioned the child’s comments about the two boys to Mr G that night.

15. Mr P also questioned the child’s affect both as described by the mother and Mr G and at Police Station which he said was not, in his opinion consistent, with a child who had been sexually abused. There was, as pointed out by Mr P, no evidence of the child being “…distressed, awkward or anxious”. When it was put to Mr P by Mr Hoult on behalf of the mother that it would not be surprising because of the number of times the child had been interviewed he said he disagreed and that in his experience there is no confusing the affect of a child who has been traumatised. He said that children he has seen who he knows have been sexually abused, “...there’s no mistaking how they feel. Regardless of how many times they’ve been interviewed.”  And more often than not, the more they’ve been interviewed the more angry and irritable and non-co-operative they are and understandably so, because you’re asking them about something that is so terrible.”

16. Mr P’s evidence was cogent and considered. I have placed significant weight upon Mr P’s evidence and nothing in either his evidence in chief or cross-examination caused me to question that evidence. 

17. Mr P also questioned why the child had become more anxious since she had stopped spending as much time with the father and why if the abuse had taken place approximately 18 months prior to her conversation with the mother she had been happy spending time with the father during that period. The mother suggested that this was because the child had not had “a context or understanding of what happened to her, but it’s different now that she has had some education.” This does not in my view explain the child’s lack of affect or why she had been happy to spend time with the father if he had in fact sexually abused her. It is clear from the affidavits of Ms M who supervised the father’s time with the child that the explanation is much more likely to lie in the attitude of the mother to the father and his spending time with the child. Neither Ms S nor Ms M was required for cross-examination.   

18. The father has consistently denied the allegations that he has sexually abused the child. I found his evidence honest and open. He readily conceded that he believed the mother had ruined his life and that she wanted him out of the child’s life. He quite clearly found the recording of the child’s Police interview very confronting. Nothing that was put to the father in cross examination would lead me to conclude that he was not telling the truth and in all of the circumstances of this case I find his denials credible.

19. Although in his report Mr P said that he did not believe that the mother was making “…false allegations of abuse...” he did however concede when it was put to him in cross-examination that it was possible that it was a deliberate attempt on the mother’s part to persuade the Court that the father had sexually abused the child in order to remove him from her life. I have a number of reservations about the mother’s evidence and whether she genuinely believes the child has been sexually abused by the father or whether this is part of a deliberate strategy on her part. The following aspects of her evidence are of particular concern:

    ·    In his report Mr P said that “…the theme that emerged throughout [Ms Heriot’s] presentation was that when stressed and distressed, she found it difficult to recall detail, she seemed at times overwhelmed by emotion, she spoke about not being able to remember and blanking out.” In discussing an incident in which the mother was charged with assault of the father Mr P reports that the mother told him that “…she didn’t remember this incident, she can recall that he was in her space, in her face, screaming at her, and that she became very angry about his intrusion into her privacy by violating her bank records. ...She was subsequently contacted by Police and attended court, but was unable to give any detail about what happened, whether an Order was made, whether she was convicted, whether there was a diversion Order or what happened.” Mr P concluded that he was left with the impression that the mother was not “being avoidant or evasive, but rather she didn’t recall because she was so distressed. She described a similar level of distress around the child’s disclosure”. However it was clear to me when she was cross-examined that she was able to provide details in relation to the legal proceedings following that incident.

    ·    The mother also said that she did not have a clear recollection of what the child said about the boys although she was able to recall in detail the other aspects of the conversation and in particular what she says the child told her about the father. Whilst this may be just another example of what Mr P describes as the mother’s “confirmatory bias” my assessment of the mother’s evidence does not lead me necessarily to the same conclusion as Mr P and I cannot rule out the other possibility that she is deliberately “evasive and avoidant.”

    ·    It is also concerning that the mother did not tell Mr G during their conversation on the night of 5 January 2012 what the child had told her about the two boys when it would have been clear to her that the child had not mentioned the boys to Mr G. Again this could be another example of “confirmatory bias” or alternatively could be an example of the mother deliberately being ‘evasive and avoidant”.

    ·    The mother corrected what she said were errors in her Police statement but made no attempt to correct what were significant errors in DHS’s understanding of the incident of alleged sexual abuse. Similarly this could be another example of “confirmatory bias” or something more deliberate.

20. Whether the mother genuinely believes that the child has been sexually abused by the father and her evidence can be explained as an example of “confirmatory bias” or she is making deliberately false allegations the impact in terms of my assessment of her credibility is the same. Whether her evidence is deliberately misleading or she is simply unable to consider any information or evidence that does not conform to her view of reality, I am left with little confidence in her evidence. As a result, in so far as there is a conflict between the evidence of the father and the mother I prefer the father’s evidence.

21. There is also a conflict between the evidence of the father and the evidence of the mother’s new partner Mr G in relation to what the father said were threats made by Mr G at changeover. The father said that at the first changeover at McDonalds in accordance with the July orders Mr G, in the presence of the child, said to him that “whatever you do to [Ms Heriot] you do to me.” The father said “not in front of the child you’re better than that” to which Mr G replied “I am going to bury you sunshine”. The father’s evidence about this incident was quite specific. Mr G denied this allegation however the father was not cross-examined about this incident.

22. Not surprisingly Mr G supported the mother’s case and it is clear as I have already said that he was careful when he was giving his evidence not to say anything that he believed might contradict the mother’s evidence. Mr G also said that he had made a note of his conversation with the child on the evening of 5 January 2012. I am satisfied that he gave this evidence to somehow add weight to his version of events and as a consequence to add force to the mother’s case however I also found it quite extraordinary that having said he made a note he then said that he had destroyed it the next day. I did not find his evidence credible in relation to this particular incident and given his level of his involvement in the dispute and commitment to the mother’s case I am satisfied that in so far as there is a conflict between his evidence and the father’s evidence I should prefer the husband’s evidence. In all of the circumstances I am satisfied on the balance of probabilities that Mr G made the statements attributed to him by the father at changeover.

23. I am not required to make a finding as to whether the child was or was not sexually abused and could determine this matter on the basis that I do not consider the risk to the child of sexual abuse at the hands of her father unacceptable. However having regard to all of the matters I have discussed I am as convinced as I could possibly be that in this case the father has not sexually abused the child and does not present any risk of harm to the child.

24. I make this finding conscious of the fact that Mr P has described the child as already being severely compromised and that she has “started to present herself as a victim and as damaged...” and that the implications of that are likely to have a significant impact on her welfare. I cannot undo any damage that may have been done however I am hopeful that my finding will allow a “sense of normality” to return to the life of this family and that the child will not have to spend her life believing that she is a victim of sexual abuse.

25. Finally there are a number of incidents which the mother says were unusual and although she now says that she does not know whether they have anything to do with the child being sexually abused by the father it is clear that these are matters raised by the mother in the context of what she now says was the father’s sexual abuse of the child and at the very least as she told Mr P “were signs to suggest that the child was having problems”.

1. The mother deposed as follows:

   a)That throughout 2009 when the child was at kindergarten she repeatedly said she did not want to see or speak to the father on the mobile phone when he called;

   b)On two occasions when she was in her father’s care the child said to the mother when she called “…hey mum, do you want to see me?” and that when the mother told her that she missed her and loved her she then said to the father “...mum wants to see me and she loves me”;

   c)In August 2010 when the child was away with the mother and Mr G she received a call from the father and that night woke crying hysterically;

   d)On 3 October 2010 the mother says that the child returned from spending time with the father. Her behaviour was precocious and out of character and she burst into tears a lot. She woke at about 2.00am and was very distressed cowering in her bed and disorientated;

   e)The mother also referred to a conversation with the child shortly after F’s birth related to general discussion about safety when she stared school and not to any particular incident when she reminded the child that no-one should be allowed to touch her private parts.

2. Mr P says that both the incident in August 2010 and October 2010 sounded like the child was having a night terror. The mother does not accept this explanation.

3. I am satisfied that what the mother has done is to revisit these otherwise  unremarkable incidents in the context of the child’s statement that she has been sexually abused by the father and rejects any explanation that does not fit with her construction of that incident. There is no basis for doing so in light of my finding that the child has not been sexually abused by the father.

4. In my view there is no basis for connecting these stand alone incidents to each other or to what the mother believes was the sexual abuse of the child. They do not in any way alter my view that the child was not sexually abused by the father or suggest that there is an unacceptable risk that the child will be sexually abused by the father if I accede to his application.  Or for that matter any risk at all.

What order will best promote the child’s best interests?

1. In order to determine what may be in the child’s best interests the Court must consider the principle and additional considerations set out in s60CC. There is in many cases a significant overlap between the primary and the additional considerations and I will attempt to avoid any unnecessary repetition.

Principle Considerations

(a)The benefit of the child having a meaningful relationship with both parents

1. I am satisfied that the child will benefit from and should have the opportunity to continue and to the extent that it is necessary to rebuild and develop a meaningful relationship with both her parents.

2. The benefit of a meaningful relationship with the father in this case is twofold. Firstly she would have all the benefits one might expect from a relationship with a loving and caring parent. Equally important in this case is that that relationship would also allow her to test her own experience of her father against her mother’s negative view of the father and allow her to develop her own view of reality.

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

1. I have found that the father does not present any risk of sexual abuse to the child. However I am satisfied that there has been a history of both conflict and family violence and that the orders I make need to protect the child from the exposure to that conflict and any potential family violence.

2. Although there is clearly a need to protect the child from conflict and any family violence of even greater concern in my view is the need to protect her from psychological harm. It is clear from Mr P’s evidence that the risk of psychological harm to the child of growing up believing that she has been sexually abused by the father is significant. 

Additional Considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding ) that the court thinks are relevant to the weight it should give to the child’s views

1. The child now describes seeing her father as a frightening experience and is reported by the mother and the supervisors to be increasingly reluctant to spend time with him.  However as Mr P said “...how do you explain why in the absence of spending time with her father she has become more anxious” when she had happily spent time with the father for over 12 months after the alleged abuse and was observed after the commencement of supervised time to interact and respond happily to the father.

2. Mr P’s assessment was that “...it seems fairly plain and obvious that she is not free of the influence of the people around her”. I am satisfied that the child is aware of and influenced by her mother’s anxiety, distress and her dislike and distrust of the father and that the views she has expressed are more likely to be the result of the mother’s influence, whether that is conscious or unconscious, than any genuine fear of the father.

3. The child is only 6 years of age. She is embroiled in her parents conflict and as Mr P says “...what the child says is affected by her mother’s view of reality”. The views the child expresses about not wanting to see her father and her fear of him must be viewed in that context and for that reason it would be unsafe to base my decision upon those views.

(b) the nature of the relationship of the child with each of the child’s parents and other persons;

1. On 18 June 2012 Mr P observed the child with both of the parents for the purposes of preparing his report.  He described the child as being talkative, engaged and affectionate with the mother.

2. When he saw her with the father he said the child was “...initially quite detached and guarded. ...She was cautious, slow to warm up, she was even standoffish. She remained distant and resisted her father’s efforts and encouragement, and even though over time she settled somewhat and engaged better, she remained quite subdued.” 

3. This is in contrast to the relationship described by the father prior to January 2012, the evidence of his new partner Ms C, who was not cross-examined and as I have previously referred to, the observations of the supervisors of the initial periods of supervised time with the father.

(c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

(f) the capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs; and

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(4) without limiting paragraphs 3(c) and (i) the extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent and in particularly, the extent to which the child’s parents have taken or failed to take the opportunity or facilitated or failed to facilitate the other parent participating in decision making about major long term issues and spending time or communicating with the child

1. I am satisfied that until January 2012 the child had a meaningful relationship with the father. From my observations of the father and his evidence I am satisfied that he is a loving and concerned parent who is looking for the opportunity to rebuild his relationship with the child and who will do all in his power to protect and promote the child’s best interests.  However it is clear that since January 2012 the father’s relationship with the child has progressively deteriorated to the point that the child now refuses to spend even supervised time with him. I have found that the there is no risk of harm to the child by the father and I am satisfied that the explanation for the breakdown of her relationship with the father lies in the mother’s view of reality that the child has been sexually abused by the father not because she is a victim of sexual abuse.

2. It is clear from the evidence that there is a history of conflict, antagonism and a lack of trust between the father and the mother however I did not observe in the father the same level of distrust and dislike of the mother as I did of the mother towards the father. The degree of both the mother’s anxiety and the antipathy she feels towards the father was clearly demonstrated by her reaction to an incident in August 2010 when a teacher at the child’s school contacted the father to tell him that the child did not have any lunch and that she wanted to give her a sandwich from the teacher’s fridge. The mother in response forwarded a lengthy email to the Principal of the school complaining about the teacher’s conduct and asking that she stay away from the child. She acknowledged in cross-examination that her concern was that she might be criticised by the father for not providing the child with her lunch. The intensity of the mother’s reaction to this incident was, in my view, out of proportion to what had occurred and was clearly a reflection of her ongoing conflict with the father.

3. I have no doubt that the mother has the capacity to meet the child’s physical and intellectual needs however I have concerns as to the mother’s capacity to meet her emotional needs in the event that she is unable or unwilling to encourage and facilitate the child’s relationship with the father.

4. The mother had a tendency to hide behind what she says she was told to do by DHS and SECASA to explain her actions or her beliefs but this does not explain either her inability or unwillingness to consider any possibility other than that the child had been sexually abused by the father. The obvious example which I have already discussed is the mother’s dismissal of what the child told her about the two boys.

5. There are other examples which also cause me concern. The mother received a copy of the report prepared by Mr P in July 2012. As a result of that report she received a letter from the ICL proposing a resolution of the matter in accordance with the recommendations of Mr P. The mother remained committed to her view that the child had been sexually abused not withstanding Mr P’s observations and recommendations. Not only did she not change her view in any way she actively pursued even more vigorous supervision and it is clear from the evidence of Ms S that she did not support the child spending time with the father even though that time continued to be supervised by HAN.

6. The mother had not looked at the tape of the child’s interview until the hearing and only reluctantly looked at it at that time.  Nor had she read the notes of the earlier interview. One might think that having read Mr P’s report she might have wanted to know what the child had said or that had she viewed the tape or read the notes she might have had some cause to reconsider her view that the father had sexually abused the child. Had she done so the risk to the child and the damage to her relationship with the father may well have been avoided.

7. However even when the mother did see the tape and read the notes of the interview she said that they did not alter her view. She either ignored or dismissed any parts of the evidence which did not accord with her version of events. For example she denied that as the child had said “she pulls her pants down and shakes her bum at me”. When asked about why she would say the allegations about the father were true but the allegation of her pulling down her pants was not her response was that she had not sexually abused the child. She did not however show any capacity to reflect upon the veracity of the child’s statements to her or to the Police in circumstances where if her evidence was accepted the child was making at least that part of the story up. The most likely explanation in my view is that when confronted with evidence that is contrary to her view that the child has been sexually abused by the father she is simply unable to put the child’s emotional needs ahead of her own feelings about the father.

8. Although I have no doubt that the mother loves the child I am satisfied that her commitment to her view of reality, because as Mr P says, it fits with how she feels, “is potentially enormously emotionally/psychologically damaging with serious long term implications…” for the child. It was submitted on behalf of the mother that it would be unfair to expect her to concede that maybe the child was telling a lie. I disagree. There was ample evidence which might have lead the mother to reconsider her view that the child had been sexually abused by the father, might benefit from a relationship with the father and might suffer long term harm in the event that she did not have a relationship with the father. My concern is that her commitment to what she said was the truth of what the child had told her was maintained in the face of the evidence of the damage this might be causing the child.

9. Mr P agreed when it was put to him that convincing a child that she has been sexually abused when you know that not to the true would itself be a form of abuse. But also said that “...if you’re driven by your own concerns and fears, then I think it’s qualitatively different”. Whilst there are aspects of the mother’s behaviour which are consistent with her having deliberately set out to remove the father from the child’s life it is also consistent with her being unable to consider any possible information or explanation that does not fit with her view of the father. Although I have concerns about various aspects of the mother’s evidence I am not satisfied on the balance of probabilities that her behaviour or actions are part of a deliberate plan to remove the father from the child’s life.  

10. At the end of the day whether her mother has deliberately set out to remove the father from the child’s life or has inadvertently extracted and co-constructed a version of events with the child which fits with her beliefs about the father the impact upon the child, in so far as she sees herself as a victim of abuse, is the same. According to Mr P she will not only see herself as a victim of sexual abuse she will function as a victim of sexual abuse. This is consistent with Mr P’s evidence that whether the mother’s beliefs were or were not genuine would not “particularly” change his recommendations.

11. Although I am certain that the mother, if asked, would say that she would never do anything to harm the child to date she has shown little or no recognition of the possibility that her beliefs have lead her to do just that. There is little about the mother’s evidence that suggests that at this time she has any real insight into these issues or how she should deal with them. I would expect given her belief that the child has been sexually abused by the father that she will have some difficulty coming to terms with orders that reintroduce the father’s time with the child particularly if that time were to be unsupervised. I am somewhat reassured by her evidence that she would seek help which at the very least suggests that she might make some effort to address these issues and protect the child from any further risk of emotional harm.

12. The father, in very difficult circumstances, has demonstrated that he is committed to the child’s welfare and sensitivity in relation to the impact of these allegations upon the child. This includes foregoing his time with the child supervised by HAN when he perceived it not be in her best interests. I am satisfied that he has the capacity to meet the child’s physical, intellectual and emotional needs. 

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the other parent or any other person

1. The mother’s primary position is that in light of the unacceptable risk of sexual abuse the child should not spend any time with the father. If I do not accede to her application she says that the child should spend 5 nights per fortnight with the father but that there should be one block of time. She says that would reduce the possibility of conflict at changeover and accommodate Mr P’s recommendation that orders should be made that spare the child the points of transition making school the buffer to assist the child in the transition between the two households. This was not a proposal that was put to Mr P.

2. The father’s case is that I should reinstate the previous orders which are for 5 nights per fortnight with 4 nights one week and one night in the alternate week save that in accordance with the recommendations of Mr P the Court should extend the time from 6.00pm each alternate Sunday until the commencement of school the following morning. This would increase the father’s time from 5 to 6 nights per fortnight.

3. Mr P said that to remove the father from the child’s life or to even reduce the amount of time she spends with him would be to perpetuate the myth that she is a victim of sexual abuse and that it is the father who has abused her. Although the mother is not proposing that the father spend supervised time with the child he also said that supervision of that time would say to the child that the father is a risk to her. I am satisfied that orders which either resulted in the child not spending any time with her father or reduced her time with him would not be in her best interests.

4. There is no evidence to suggest that the time the child was spending with her father, including the mid week time was not working; the evidence is to the contrary. I am satisfied that the extension of the father’s time each alternate week from Sunday evening until the commencement of school on Monday morning will provide the buffer Mr P suggests with little alteration to the child’s routine.

5. The mother’s alternative proposal on the other hand would represent a significant alteration to the previous regime. Of particular concern would be that it would result in the child spending 9 nights uninterrupted with the mother without seeing the father whereas the regime proposed by the father means that the child’s longest period away from the father would be 6 nights. Given the mother’s commitment to her belief that the child has been sexually abused and what I have observed to be her total lack of ability, at least to date, to consider an alternative view I am satisfied that it would not be in the child’s best interests to spend the lengthier uninterrupted periods potentially exposed to the mother’s negative view of the father.

6. Returning to the previous regime will send the message to the child that her father is not a risk and allow her to test her own experience against what I am satisfied she clearly understands to be her mother’s view of the father.

7. The extra night is not likely to impact upon her relationship with the mother but may have the positive effect of smoothing the child’s path between the two households and avoiding any exposure to the conflict which exists between the two households including incidents such as the one described by the father involving Mr G.   

(e) the practical difficulty and expense of the child spending with and communicating with a parent and how that difficulty and expense will affect the child’s rights to maintain a personal relationship and contact with both parents on a regular basis:

1. This is not an issue in this case. The parties live in sufficient proximity to each other to facilitate the time they each spend with the child. The child was successfully maintaining a relationship and spending time with each of her parents pursuant to the previous orders.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the parents and any other relevant characteristics of the child;

(h) if the child is an Aboriginal child or a Torres Strait islander child;

1. These considerations are not an issue in this case;

(j) any family violence involving the child or a member of the child’s family;

(k) any final or contested family violence order that applies to the child or a member of the child’s family:

1. There have been allegations of family violence by both the father and the mother to each other. The mother was charged and pleaded guilty to assaulting the father. I have also found that there was a threat made by the mother’s partner Mr G to the father.

2. Until January of this year there was no evidence of any other complaints of family violence or intervention orders sought or obtained by either party. In January the mother sought and obtained an intervention order for the protection of the child against the father. This was based upon the allegation that the child had been sexually abused by the father. I have found that the father did not sexually abuse the child and is not a risk to the child. It follows that there is no basis for the intervention order.

3. I am satisfied that the reintroduction of the previous regime will not expose the child to the risk of family violence and acceding to the father’s application to extension of the time to the commencement of school on Monday morning will limit the potential for conflict and provide the child with a buffer between the two households in which she will be spending time.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The mother’s case was put in the alternative. Either that the child should not spend time with the father or that in the alternative she should spend time with the father 5 nights per fortnight. There was no middle ground. Even if I were satisfied that the child should not spend time with the father I cannot imagine that that would be the end of the matter. I am satisfied that it is in the child’s best interests to spend time with the father and in those circumstances I must consider the mother’s proposal of 5 nights per fortnight and the father’s proposal of 6 nights per fortnight. I do not see one or the other of these proposals being more likely or less likely to lead to the institution of further proceedings. Whether either party institutes further proceedings is in my view much more likely to depend upon whether or not the mother is able to accept and come to terms with the reintroduction of the child’s time with the father.

Parental Responsibility

1. The mother’s case is that as a result of the father having sexually abused the child the presumption of shared parental responsibility should not apply. Having found on the balance of probabilities that the child was not sexually abused by the father and is not at risk of sexual abuse in the father’s care it follows logically that that is not a reason why the presumption should not apply. It is the history of those allegations and this litigation that leads me to conclude that the parties should continue to have equal shared parental responsibility.  

2. The orders that were made by consent on 24 October 2007 included and order that the father and the mother have equal shared parental responsibility. Although there have been some disputes the father and mother appear on the basis of the evidence before me to have been able to make the major decisions with respect to the child’s welfare. I am not satisfied that the mother would be able to sufficiently separate her own emotions and feelings from the child’s needs in order to make the decisions that would be in the child’s best interests.

3. I am satisfied that the father should continue to be involved in the decision making with respect to the child and that it is important that the child understands and experiences her father’s involvement in all aspects of her life.

4. I am also satisfied that it is in the child’s best interests for the father and mother to have equal shared parental responsibility for major long term decisions notwithstanding that there have been allegations of family violence including that the mother was charged and convicted with assaulting the father.

5. There is of course a risk that these parties will not be able to communicate or make the necessary decisions. It would not be surprising if the father were to be somewhat disenchanted with the mother given what has occurred and I have some sympathy for his position. I have somewhat more confidence given the evidence that he will be able to put aside his personal views to do what is best for the child. I have less confidence given the strength of her views that the mother will be able to put aside her views in order to make decisions that are in the child’s best interests rather than predicated on her view of reality. I am comforted by the fact that it is clear from the evidence that the mother’s views of the father are not new and that despite those views the father and the mother have demonstrated the capacity to make decisions notwithstanding there views of each other and in particular the mother’s strongly held views of the father.

6. I am hopeful that as a result the parties will be able to share the responsibility for making the major long term decisions in relation to the child. On the basis of the evidence that I have before me I would, in the event that they are unable to do so, be much more likely to make an order that the father have sole parental responsibility for making those decisions in the event that it is not possible for the parties to share that responsibility. I am hopeful that that will not be necessary.

Equal or Substantial Time

1. The decision that the father and mother should have equal shared parental responsibility triggers the requirement that I should consider whether it is in the child’s best interests and reasonably practical for her to spend equal time with each of her parents. If I determine that it is not in her best interests to spend equal time with both of her parents then I must consider whether it is in her best interests and reasonably practical for her to spend substantial time with each of her parents.

2. The father does not propose that he should spend equal time with the child and I am satisfied that it is not in her best interests to do so. Although the regime proposed by the father would increase the time he spends with the child by one night per fortnight it follows the same pattern as the previous regime. All of the evidence points to the fact that this regime worked and there is no evidence to suggest that there was any reason for changing that regime prior to the events of January 2012. It is clear from the mother’s evidence that there would not have been any proceedings had it not been for the disclosures made by the child in January. The regime proposed by the father makes provision for the child to spend substantial time with him and I am satisfied that it is both in the child’s best interests and reasonably practical for her to do so.

Conclusion

1. For the reasons I have already discussed I am satisfied that the evidence supports both the father and mother continuing to have equal shared parental responsibility and I accept that the father’s proposal for spending time with the child for 6 nights per fortnight including the night in the alternate week. I also accept the recommendation of Mr P that the father should have someone in substantial attendance for a period of six months and that this can be his partner Ms C. This is not because I have any concerns in relation to the child’s safety or welfare in the father’s care but as Mr P said it would be “...helpful of everyone’s concerns and anxiety”..

2. Mr P was asked a number of questions about how the father’s time should be reintroduced. He was asked by Ms Smallwood whether the child should initially spend a block of unbroken time with the father before resuming the previous regime. Mr P said there was no magic to seven days or three months. It was his view that it was more important to decide upon the appropriate regime and get it started.  In his view it was the process of reintroduction and how it is explained to the child that rather than the amount of time that is important.

3. I agree with the ICL that to gradually reintroduce the father’s time with the child would potentially send the wrong message confirming the view that it is not safe for her to spend time with the father. On that basis I propose to make orders that immediately reintroduce the previous regime and for the reasons I have already discussed extending the alternate weekend time from Sunday evening to the commencement of school on Monday morning. I propose that on the first occasion that the child should spend from after school on Wednesday until the commencement of school on Monday morning.

4. In all of the circumstances and given the mother’s beliefs about the father and her commitment to the view that the child has been sexually abused I propose to include an order, as submitted by the ICL, that these orders be explained to the child by the ICL in conjunction with Mr P and will require the mother to make arrangements with the ICL to enable that to occur and to meet Mr P’s costs of doing so. I also propose to make an order until, further order, and I note that the mother consents to that order, that she and her servants and agents be restrained from discussing these proceedings or any matter pertaining to and including allegations of sexual abuse with or in the child’s hearing.

5. I also propose to adopt the ICL’s proposal for an order that the for a period of 6 months the mother ensure that the child attends school subject to the provision of a medical certificate to be provided to the father in the event that she is unable to attend. I am satisfied that it is appropriate to make this order given the history of the mother keeping the child home from school to avoid the possibility of the father collecting the child from school. I am also proposing to make the order sought by the ICL that the parties attend a Family Relationships Centre prior to issuing any further proceedings save and except with respect to any contravention proceedings.

6. It is clear from the mother’s evidence that she has discussed the allegations of sexual abuse of the child by the father with the Principal of the child’s school and possibly other teachers at the school. It is likely in those circumstances that the child is perceived by the Principal and other staff at the school as a child who has been sexually abused by the father. There is in my view a very real possibility that either consciously or unconsciously they could reinforce the child’s perception that she is a victim of sexual abuse. In the context of my finding that is not in the child’s best interests and if she is to have some sense that she is a normal child who has not been sexually abused by her father it is important that the Principal and her teachers be advised of my finding that the father does not present a risk to the child. This is also important given that the father will be collecting the child from school and returning her to school. I propose in those circumstances to make an order that the ICL provide a certified extract of the relevant paragraphs of my judgement to the Principal of the child’s school together with a copy of my orders.

7. I have also in my reasons commented on the conduct of HAN and I propose to order that the ICL provide HAN with a certified extract of the relevant paragraphs of my reasons.

8. Finally the father in his amended response sought an order that the child spend the whole of the Victorian gazetted September school holidays with him as make up time. Clearly those holidays have now passed so it is not possible to make that order. Having regard to the evidence of Mr P it is in my view that it is more important to re-establish the previous regime. I am not satisfied that there would be any particular benefit in the child spending additional time with the father during the long summer vacation nor would it be otherwise consistent with his proposals.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 28 November 2012

Associate:

Date:  28 November 2012