HOFFMAN & BARONE

[2014] FamCA 52

FAMILY COURT OF AUSTRALIA

HOFFMAN & BARONE [2014] FamCA 52

FAMILY LAW – CHILDREN – alleged child abuse – alleged sexual abuse – evidence did not substantiate allegations – no positive finding that abuse occurred – no finding that abuse did not occur – single expert report – report unhelpful in assisting the court to determine if abuse occurred – unsupervised time with the father does not pose an unacceptable risk to the child – child shall live with the mother – child shall spend supervised time with the father graduating to unsupervised time

Evidence Act 1995 (Cth) ss 80, 140
Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth) ss 2, 45

B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 16 CLR 69, 78
Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA305
Sydney Wide Distributors Pty Ltd v. Red Bull Australia Pty Ltd [2012] FCA FC 157

APPLICANT: Mr Hoffman

RESPONDENT: Ms Barone

FILE NUMBER: CAC 2031 of 2010

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 14 to 17 February 2012; 1 November 2013; and 11 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Gill

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms A Tonkin

SOLICITOR FOR THE RESPONDENT: Phelps Reid

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoffman & Barone 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 CANBERRA

FILE NUMBER: CAC 2031 of 2010

Mr Hoffman

Applicant

And

Ms Barone

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the matters before the Court the mother was concerned, and to some extent, remains concerned, that the little girl who was the subject of the proceedings may have been the subject of sexual abuse by her father.

2. Notwithstanding these issues, the orders finally sought by the parties were not very different from each other.  These orders are set out now to provide a context for the rest of my reasons for judgment.

   Minute of Orders Sought by Applicant Husband – 11 November 2013

   1.That the mother and the father have equal shared parental responsibility for the child.

   2.That the child live with the mother and spend time with the father as follows:

   i.After school Friday until the commencement of school Monday or until 5pm of that Monday is a public holiday during school terms;

   ii.From 3pm until 8pm on the child’s birthday;

   iii.For half of each school holiday period being the first half in each year ending with an even number and second half in each year ending in an odd number;

   iv.For each alternate Christmas being from 10am on 24 December until 5pm on 26 December occurring in the year in which she spends the first half of the holidays with the mother.

   3.That neither party discuss the allegations made in these proceedings with the child, nor permit any other person to discuss those allegations with the child, or in the child’s presence.

Amended Respondent Mother’s Minute of Orders Sought – November 2013

1.The child, [N] born … May 2007 (“[the child]”) live with the Mother.

2.[The child] have telephone or Skype time with the Father on three occasions per week;

3.The Father be at liberty to correspond with [the child] via written communication including but not limited to by email, card and letter.

Or in the alternative

1.         [The child] live with the Mother;

2.[The child] spend time with the Father, supervised by the father’s partner Ms [C], as follows:

2.1For three months from the date of these Orders:

2.1.1From 10.00am Sunday until 5.00pm Sunday each alternate weekend with changeover to occur at the home of the paternal grandparents;

2.2Following 2.1 until [the child] attains the age of seven:

2.2.1From 10.00am Saturday until 5.00pm Saturday and 10.00am Sunday to 5.00pm Sunday each alternate weekend;

2.3Upon [the child] attaining the age of seven:

2.3.1From 10.00am Saturday until 5.00pm Monday each alternate weekend with [Ms C] to be present overnight;

2.4Upon [the child] attaining the age of eight:

2.4.1From afterschool Friday until 5.00pm Sunday each alternate weekend;

2.4.2For one week of each term school holidays; and

2.4.3For two weeks during the December/ January holidays:

2.5From 10.00am until 5.00pm on Father’s Day.

3.         That notwithstanding these Orders:

3.1[The child] spend time with the Mother from 10.00am Christmas Day until10.00am Boxing Day; and

3.2[The child] spend time with the Mother from 10.00am until 5.00pm Mother’s Day.

4.[The child] have telephone or Skype time with the Father on three occasions per week.

5.The Father is restrained from allowing [the child] to view, either on film or in person, the slaughtering of animals or be exposed to firearms.

6.The Father will do all things necessary to prevent other persons from allowing [the child] to view, either on film or in person, the slaughtering of animals or be exposed to firearms.

1. As may be observed from comparing the current Minutes of Orders Sought with those previously sought by the parties, as set out in the annexure to these reasons for judgment, the positions of the parties have changed somewhat over the period judgment has been reserved.  The time during which my judgment has been reserved has been unreasonably excessive and I apologise unreservedly to the parties for any distress that this delay has caused to them.

2. Although the issue of the (past) possible sexual abuse of the child is still a large issue, the practical consequences of that issue have been significantly reduced by the fact that both parents agree that the child should spend time with her father and moreover, after an initial period that that time should be unsupervised.  In essence, the dispute remaining between the parties is the timetable over which a program of time for the child to spend with her father might be implemented.

3. The situation has been further complicated by the fact that for the last six months (or thereabouts) the child has not spent time with her father at all.  This arose from a dispute, the cause of which is also a matter of dispute, between the father and his parents.  In short the father declined to continue to see the child at his parents’ house.  Whether this was because of a dispute between him and his parents or not is probably not particularly important; although that has some bearing on the future of the matter because the grandparents will be part of the child’s life and future. 

4. The mother has continued to provide the child at the father's parents’ place.  This apparently is something that the child likes and also something which the father's parents encourage.

5. There is agreement that as the father has re-partnered, future time between the father and the child will, at the expiration of the program of reintroduction, not need to be supervised.  It is probably fair to say that although the mother has some remaining anxiety about the possibility that the child may be subjected to some form of abuse from the child’s father, she is prepared to sublimate those concerns in the interests of maintaining the relationship between the child and her father and recognising the fact that this relationship is important and in the child’s best interests.

6. Understandably, the father feels embittered by the circumstances of this case and this has no doubt been enlivened by the delay in my judgment.  There are however practical difficulties in the way of implementing a program of time for the child with her father.

7. The father, when the proceedings were first before me, was the proprietor of a hospitality business in Suburb B in the Australian Capital Territory.  He has now sold and relinquished his interest in that business and works on a shift basis with a government agency.  His roster of work involves shifts of twelve hours beginning at 7am until 7pm or thereabouts for two days, followed by two days off, followed by two nightshifts between 7pm and 7am or thereabouts.  He claims that there is a degree of flexibility about this program and even that the roster is set some years in advance.  These two things would appear to be contradictory.  Moreover, the father also has a part-time job as a public servant.  In relation to this he claims that he can pick and choose the times he works.

8. The mother also works – in the education industry at D Educational Institution.  She has the assistance of her parents to cover times where her work commitments intersect with the times the child would be at home in her mother's care.  I am satisfied that there are no practical problems associated with the time that the child spends with her mother – or at least her mother will experience no more difficulty than most working mothers do.

9. The central issue in this matter during the (main) trial was the allegation that the child had been sexually abused by her father.  In this regard it is probably important to set into context the considerations that a Court must undertake when such allegations are made.  Although the High Court in B & B[1] has made it clear that it is not necessary for a Court dealing with issues of abuse of a child to make a finding either positively or negatively that such abuse happened, in the ordinary course of events a court in fulfilling its functions must determine the issues in dispute between the parties if it can do so. The High Court emphasised that the principal issue (before a Family Court at least) is what orders should be made which would reflect the best interests of the child or children involved.  Making such orders will not necessarily involve a determination about whether abuse has happened.  However, it is reasonable for parents in considering the concerns they have had about their child and what is in their child's best interests, to regard the determination of whether the alleged events occurred as being an important part of the foundations for future relationships with their child and also with each other about their child.

   [1] B & B (1988) FLC 91-978

10. As has been pointed out on many occasions in the past, child abuse cases are among the most difficult to resolve as generally speaking, there are only two witnesses to the alleged events.  One of these is the child whose evidence would not ordinarily be given viva voce in the Family Court.  The other is the alleged perpetrator.  It is rare that the alleged perpetrator concedes openly that the event happened in a way such as to constitute abuse.  Frequently the alleged perpetrator either denies that anything happened or alternatively claims that the event is a misconstruction by the child of an otherwise innocent act (for example washing or applying nappy rash cream).

11. Almost invariably the evidence of the child available to the Court is affected by the fact that that story is relayed (the “disclosure”) to a trusted person (typically the mother) who naturally is horrified that such an event might have happened to her child.  If this occurs in a time when the parties’ relationship is already under stress, a lack of trust of the other party may lead to a deep suspicion that something untoward has occurred.  Typically, the recipient of the first disclosure will discuss the disclosure with other people.  These people may include the Police, the Department of Family Services, friends, family and professionals either independently consulted or recommended by any of the above.  The child may be invited to repeat the disclosure to all and any of these people.  In the case of the police, if the matter goes to the police there are protocols set up by them try to protect the child's evidence from taint.  It is difficult to imagine however, that any little child when suddenly placed in an interview situation (no matter how carefully conducted by two police officers and or a representative of the Department of Family Services) would necessarily understand that he or she is being asked to describe what happened as related in the disclosures that he or she may have made some days or perhaps even weeks earlier.  If no leading questions were asked (and of course this is highly desirable) the child may not make any disclosure at all.  This, as is readily acknowledged, does not mean that something has not happened.  It may not mean that the child is reluctant or unwilling to speak about the matter. However, it may mean that.  If the child has been subject to multiple interviews he or she may start to realise that the interview process will conclude more quickly if he or she gets on with telling the story that everyone apparently wants to know.

12. I do not have any qualifications in psychology or in child development but common sense would suggest that the process of memory even for adults frequently involves the repetition not exclusively of what the mind remembers of the incident but of what one has said to other people about the incident previously.  This in turn may be affected by the reaction of the people to whom the story is told.  Again, common sense would dictate that this is even more likely when children are recalling events given their dependence upon adults both physically and particularly, emotionally.

13. In all cases involving allegations of abuse therefore, it is particularly important to consider any corroborating evidence available and to take account of the evidence of experts about the nature of the child, the likelihood that the child's story may have been influenced by one parent or the other and the psychological profiles of each of the parents which may dictate how the evidence has been affected by the retelling of the story by the child or the suppression of the story by the child.

14. In this matter the chosen single expert witness was Dr E.  I indicated during the course of proceedings that I had not been significantly assisted by Dr E’s report.  This is highly unfortunate not only because of the cost to the parties in procuring the report but also because I have been denied the opportunity for corroboration of evidence through the witness’s expertise.  I shall set out in more detail hereafter my difficulty with Dr E's report and evidence.

15. The situation in which I am left is one where allegations have been made and I am reasonably satisfied about the nature of some of those allegations.  I shall set them out in more detail.  I am left unequivocal denials from the father that anything occurred.  This was his sworn evidence and my observations during the period of the hearing was that there was nothing in his demeanor or in the logical consistency of his statements which would permit an adverse finding of credit against him.  That does not mean that nothing occurred. What it does mean, is that there were no corroborative signs in his giving evidence that he may not have been telling the truth.

Background

1. Proceedings began in this matter when the father filed an Initiating Application in April 2011, following the mother’s decision to alter the ad hoc arrangements for the time the child would spend with her father. The mother stopped the child from spending time with her father after the child allegedly made disclosures of abuse at the hands of the father.

2. On 25 May 2011 interim parenting orders were made by consent, with the father spending supervised time with the child on alternating Sundays. The matter proceeded to final hearing on 14 February 2012 for four days, and judgment was reserved. On 10 October 2013 the father filed an Application in a Case to have the interim orders altered to provide for the child to spend a minimum of two nights per fortnight with the father. The application was heard by the Court on 1 November 2013 where it was ordered that the matter be re-opened. Further evidence was adduced by both parties and judgment was again reserved.

Application of each party  

1. The father was originally seeking orders as set out in Annexure A.

2. Prior to the matter being re-opened, the father relied upon the following affidavits in support of his application:

   a)His affidavit filed 21 December 2011;

   b)Affidavit of the paternal grandmother filed 21 December 2011;

   c)Affidavit of Ms A filed 21 December 2011;

   d)Affidavit of Mr F filed 21 December 2011;

   e)Affidavit of Ms I filed 21 December 2011;

   f)Affidavit of Mr G filed 21 December 2011.

3. On 11 November 2013 the father filed a revised minute of orders sought, as set out earlier in my judgment.

4. In addition the father also now relied upon:

   a)His affidavits filed 10 October 2013 and 8 November 2013; and

   b)Ms C’s affidavit filed 7 November 2013.

5. The mother originally sought orders as also set out in Annexure A. These were changed to the orders set out earlier in my judgement when the matter was reopened.

6. The mother relied upon the following affidavits in support of her application:

   a)Her affidavits filed 12 May 2011, 12 October 2011 and 20 December 2011;

   b)Her Statement of Facts filed 18 October 2011;

   c)Affidavits of the maternal grandfather filed 12 May 2011 and 20 December 2011;

   d)Affidavits of the maternal grandmother filed 12 May 2011 and 20 December 2011;

   e)Affidavit of Ms H filed 12 May 2011;

   f)Affidavit of Ms J filed 22 December 2011.

7. After the matter was reopened the mother also relied upon:

   a)Her affidavits filed 29 October 2013 and 6 November 2013; and

   b)The maternal Grandmother Ms K’s affidavit filed 6 November 2013.

Short History

1. The parties commenced living together in April 2005, married in November 2009 and separated in March 2010. The parties have one child together, N, born in May 2007, (“the child”). At the date of the final hearing the child was about 4.5 years of age.

2. When the parties separated, the father moved out of the former matrimonial home and the mother continued to live there with the child.

3. Immediately after separation, the father spent time with the child on an ad hoc basis. Though the parents agreed that the father would spend time with the child at the former family home on Sundays and Mondays, the mother on occasion called upon the father to care for the child during other days when she was busy and the father did so.[2]

   [2] Father’s affidavit, filed 21 December 2011, [8] to [13]; Mother’s affidavit, filed 11 May 2011, [9.1].

4. The mother states that the “first disclosure” of sexual abuse was made in December 2010 when the child said “Touch my bum like Daddy does. It is fun.”[3]

   [3] Mother’s affidavit, filed 11 May 2011, [24].

5. From April 2010 (just after separation) until 29 March 2011, the child spent time with the father from Sunday morning until Tuesday afternoon each week.[4] From April 2010 to February 2011, the father lived with his parents and the child stayed at the paternal grandparents’ home when spending time with the father. The father worked on Tuesdays and the child would spend the day with the paternal grandparents until the father returned from work at about 2:30pm. The father then left again for work at 5pm; he had a hospitality business.[5] From March 2011, the child spent time with the father at his home, which he purchased after separation.[6]

   [4] Father’s affidavit, [6]; Mother’s affidavit, filed 11 May 2011, [9.2]. 

   [5] Father’s affidavit, [16].

   [6] Mother’s affidavit, filed 11 May 2011, [10].

6. On 2 April 2011, the mother states that the child made a second disclosure to the effect that the father puts his fingers in the child’s bottom.[7]

   [7] Mother’s affidavit, filed 11 May 2011, [28].

1. On 3 April 2011, the mother told the father she would not be making the child available to spend time with the father because “[The child] said to [the mother] ‘Daddy touches me on the bum’”.[8]

   [8] Father’s affidavit, [127].

2. On 4 April 2011, the child was interviewed by the police and no further disclosure was made.[9] On 6 April 2011, the father was interviewed by Child Protective Services.[10]

   [9] Mother’s affidavit, filed 11 May 2011, [30] to [33].

   [10] Father’s affidavit, [129].

3. On 8 April 2011, the mother’s solicitors notified the father’s solicitors that the child would not be spending time with the father that weekend and the mother would be taking the child to see a child psychologist.[11] That night, the child had a night terror where she got off the bed, kicked and yelled at the mother, picked up objects in the room and threw them while screaming and then sobbing in a corner.[12]

   [11] Father’s affidavit, [130] and annexure O; mother’s affidavit, filed 11 May 2011, [38].

   [12] Mother’s affidavit, filed 11 May 2011, [40].

4. The mother alleges that on 10 April 2011, the child told her she is “scared of Daddy”.[13]

   [13] Mother’s affidavit, filed 11 May 2011, [41].

5. The child attended an appointment with Ms L, child counsellor, on 12 April 2011.[14]

   [14] Mother’s affidavit, filed 11 May 2011, [43].

6. The father filed an Application for Final Orders on 21 April 2011.[15]

   [15] Father’s affidavit, [48].

7. Interim parenting orders were made by consent on 25 May 2011. Those interim orders provided for the parents to have equal shared parental responsibility, the child to live with the mother and spend time with the father from 10am until 5pm each alternate Sunday. The time spent by the child with the father would be supervised by one of the paternal grandparents. For this purpose, the paternal grandparents each provided undertakings acknowledging their responsibilities as supervisors and agreeing that they would perform any task requiring the removal of the child’s clothes. The father was restrained from bathing the child and from removing the child’s clothing for any purpose.

8. The father deposed that the child spent time with him in accordance with these interim orders.[16]

   [16] Father’s affidavit, [6].

9. On 30 June 2011, Dr E was appointed as the single expert in this matter. The single expert provided a report dated 20 September 2011.  

10. The mother raised some issues in relation to the single expert’s report and on 25 October 2011, a voir dire was conducted. The mother then obtained her own expert, Ms J, to prepare another report in these proceedings.

11. The matter proceeded to final hearing on 14 February 2012 for four days and judgment was reserved.

12. On 1 November 2013 an order was made that the matter be re-opened following an application by the father to alter the interim orders. The father applied to have the orders altered as in August (mother says June) he had ceased spending supervised time with the child at his parent’s house. The father believed that the continued supervised time arrangement was damaging to the child, and was ‘confusing to her and destructive of [their] relationship’.[17]

    [17] Father’s affidavit filed 10 October 2013 [3]; Father’s affidavit filed 8 November 2013 [11].

13. The father also said that the supervision arrangements were straining his relationship with his parents. On one particular occasion, the father had an argument with his parents.  The child eventually left with the father and his new partner, Ms C, whom the parents agreed would supervise the father’s contact with the child on that occasion. The father also proposed that Ms C, would be an appropriate supervisor if it was necessary in the future.[18]

    [18] Father’s affidavit filed 8 November 2013 [12-14].

14. On 16 June 2013 the mother went to pick the child up from the paternal grandparents house, having dropped her there to see her father, she was informed by the paternal grandmother that they had not seen the father, as he had ‘divorced his family’.[19] The father attested that he had resolved his differences with his parents.

    [19] Mother’s affidavit filed 6 November 2013 [12].

15. As mentioned above the father had also changed his occupation since the matter had been reserved for judgment. His new job requires him to do shift work on a 7 day roster, which in some weeks includes weekend work.

Relevant law

1. The Family Law Act 1975 (Cth) ("the Act") was amended in 2011 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ("the amending Act"). Those amendments affect the provisions that apply in parenting matters. The amending Act stipulates that certain amendments, which are relevant in this matter, "apply in relation to proceedings instituted on or after commencement."[20]  The amendments relevant to this matter commenced on 7 June 2012.[21]  These proceedings were instituted in April 2011, therefore the relevant amendments do not apply to this matter. When I make reference to the Act, I refer to the provisions as they were before the amendments came into effect.

   [20] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), Schedule 1, Part 2, s 45.

   [21] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), s 2.

2. Under the Act, I am obliged, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[22]   In this regard, "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."[23] Hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent.

   [22] Family Law Act 1975 (Cth), s 61DA(1).

   [23] Family Law Act 1975 (Cth), s 61B.

3. That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or another child who is a member of the parent's family, or engaged in family violence.[24]  Family violence means "conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety."[25]

   [24] Family Law Act 1975 (Cth), s 61DA(2).

   [25] Family Law Act 1975 (Cth), s 4.

4. The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child's best interests.[26]

   [26] Family Law Act 1975 (Cth), s 61DA(4).

5. In determining what is in the child's best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into "primary considerations" and "additional considerations".

6. If the presumption of equal shared parental responsibility applies, I am obliged then to consider whether the child should spend equal time with each of the parents or substantial and significant time as defined in the Act. In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to whether it is reasonably practicable for the child to spend such time with each parent.[27]

   [27] Family Law Act 1975 (Cth), s 65DAA(1) and (2).

7. This matter concerns allegations of sexual abuse against the father. Because these are civil proceedings, any findings I make in relation to the allegations must be on the balance of probabilities.[28]  In Briginshaw v Briginshaw[29], Dixon J (as his Honour then was) said:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality.

   [emphasis added]

   [28] Evidence Act 1995 (Cth), s 140(1).

   [29] (1938) 60 CLR 337, per Dixon J.

8. In order to find, on the balance of probabilities, that the father did sexually abuse the child, I must feel an “actual persuasion” that sexual abuse occurred.

9. If I find that sexual abuse did occur, the question then arises as to how to balance the need to protect the child from harm (as required by s 60CC(2)(b)) against any benefit to the child from having a meaningful relationship with both parents (in s 60CC(2)(a)). The relevant test is whether orders about the child would cause the child to be exposed to an “unacceptable risk”:[30]

   … the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

Best interests of the child

[30] M v M (1988) 16 CLR 69, 78

Primary considerations

Section 60CC(2)(b) – the need to protect the child from harm as a result of being exposed or subjected to child abuse, neglect or family violence

1. Before considering whether there is a benefit to the child in having a meaningful relationship with the father, I will first consider the allegations that the father sexually abused the child.

2. On the mother’s evidence, the first disclosure of sexual abuse occurred in early December 2010 when the child said to the mother “Touch my bum like Daddy does. It is fun.” The mother responded by telling the child that “Nobody is allowed to touch your bottom.”[31]

   [31] Mother’s affidavit, filed 11 May 2011, [24].

3. Following this comment from the child, on 14 December 2010 the mother chose to discuss the matter with the father. Each party’s evidence about the conversation that took place is different. What is clear is that the father informed the mother that he touches the child’s bottom when he washes her, wipes her after going to the toilet, smacking her and squeezing/patting her on the bottom when she is a good girl. The father also commented that the child is a little girl and, when in the shower with the father, points to his penis and asks “What’s that?” During that conversation, the parents also spoke about not allowing the child to shower with the father. The father’s evidence was that it would be difficult to suddenly tell the child she cannot shower with him when she has been doing that in the past. He agreed to try and “wean her off it [showering with him]” and “see how it goes”.[32]

   [32] Father’s affidavit, [133]; Mother’s affidavit, filed 11 May 2011, [26].

4. The second disclosure occurred on 2 April 2011 when the mother “observed [the child] touching her vagina/bottom.” She said to the child:[33]

   [33] Mother’s affidavit, filed 11 May 2011, [28].

   “Please stop touching and showing me your bottom. I don’t like it”.

   The child responded words to the effect of,

   “Daddy does”.

   I then said,

   “Does he still do that?”

   [The child] responded,

   “Yes”

   I then asked,

   “I do not understand. Is he cleaning it?”

   [The child] responded words to the effect of,

   “No, he puts his fingers in my bottom.”

   I then asked [the child],

   “I am a little bit confused can you show me”.

   [The child] then put her hands in the front of her nappy and said words to the effect of,

   “He goes like this”.

5. When, on 3 April 2011, the mother informed the father that the child had “disclosed further things” and that she would not be sending the child to see the father, the father replied “Do you know what they do with paedophiles in jail, my life will be over, and they will take [the child] away from me. You will ruin my life.”[34] The father explains that while he did say this, it was not an admission of guilt. Rather, he was frustrated that the mother was not listening to him and was upset about the allegations being made against him.[35] I accept his words were not an admission of guilt.

   [34] Mother’s affidavit, filed 11 May 2011, [29].

   [35] Father’s affidavit, [127].

6. The father again explained to the mother that he touches the child’s bottom when showering her, smacking her or “brushing past that area”.[36]

   [36] Mother’s affidavit, filed 11 May 2011, [29].

7. The mother reported the matter to the police and the child was interviewed but made no disclosures.[37]

   [37] Mother’s affidavit, filed 11 May 2011, [30] to [33].

8. The child has also had a history of “sexualised” behaviour. In February 2011, the maternal grandmother observed the child “poking her finger in her anus and wiping her finger on her face.” The maternal grandmother told her it was silly behaviour and asked the child to wash her hands.[38]

   [38] Maternal grandmother’s affidavit, [12].

9. As a little child, the child used to put her hands down her nappy/pants and also pull down her pants.[39] She also lay on the bed naked with her legs in the air, playing with her vagina and laughing as if it were a game.[40]

   [39] Father’s affidavit, [87]; mother’s affidavit, filed 11 May 2011, [57]; paternal grandmother’s affidavit, [11].

   [40] Maternal grandfather’s affidavit, [10].

10. On 5 April 2011, after the child’s interview with police, the child and the mother visited the maternal grandmother. The maternal grandmother observed the child to “wave her bottom around and poke her fingers and a crayon at her bottom.” When told by the mother to stop doing that:[41]

    [The child] replied,

    “Daddy does it.”

    I then said,

    “What does he do [the child’s given name]?”

    [The child] then climbed up on the kitchen [stool] and leaned across the bench and whispered in my ear,

    “Daddy puts his fingers in my bottom.”

    [41] Maternal grandmother’s affidavit, [15].

11. On 10 April 2011, the child told the mother she was “scared of Daddy”.[42]

    [42] Mother’s affidavit, filed 11 May 2011, [41].

12. The following night, the child told the mother she wanted a “gate around [her] bed” to keep the wind out because “Monsters come with the wind”.[43]

    [43] Mother’s affidavit, filed 11 May 2011, [42].

13. The child attended an appointment with Ms L on 12 April 2011 and after the appointment, Ms L told the mother that the child had said:[44]

    “I’m not allowed to tell because we might get sued”.

    Ms [L] then said words to the effect of,

    “Those words are unusual for a child of that age unless she has heard them elsewhere”.

    [44] Mother’s affidavit, filed 11 May 2011, [44]

14. Ms L provided a report of her appointment with the child. She said:[45]

    I asked [the child] to join me at the little table and play with a puzzle. This puzzle is of a little girl and is in 3 layers: dress and shoes on the top layer, naked body on the middle layer and skeleton on the bottom layer. [The child] took off the clothes and the body layer and giggled a little about the bones. On replacing the naked body parts I asked [the child] to name body parts. …[The child] made no answer to my question about the vulval area. I asked her mother what she called that area and she replied “bottom”. [The child] echoed her and put her finger on the area. I asked her “Do you touch that part?” “Yes, I put my fingers in there. …” I asked “Does anyone else touch you there?” She replied “Daddy puts his finger in there”. I asked her how that felt but she did not answer. …

    Opinion

    … When making the disclosure [the child] spoke in a matter-of-fact tone. This, in my clinical experience and as discussed in the research literature on child sexual abuse, is what usually occurs. It is known that children become upset when asked directly about feelings or if asked about what was said to them by the adult.

    Keeping in mind that there was no other information and the presence of the mother in the interview, in my view [the child] made a clear disclosure. …

    [45] Mother’s affidavit, filed 11 May 2011, annexure B.

15. The criticism of the interview process of Ms L by the single expert witness is noted[46].

    Clearly an interview with the mother and child together is flawed.  Clearly an interview with the purpose of finding a disclosure of sexual touching is also flawed; the question, “Does anyone else tough you there?” is a very leading question.  These questions been asked many times to the child and her response, “Daddy puts his finger in there” could very easily be a learnt response.  It is very vague what is being referred to by [Ms L] with regard to the research literature.  It is quite clear in the research literature that when children make disclosures with the parent present that this is an enormously influential and a confounding factor.  Children being in a matter-of-fact tone when making disclosures does not appear to be give a clear indication one way or the other about sexual abuse.

    [46] Single expert’s report, ll 717-732

16. In particular I note his concerns about her interview with the child when the child’s mother was present.  I note further that he casts doubt on an interview which he alleges[47]

    Unsurprisingly in a joint interview where [the mother] was present, [Ms L] did an interview looking for sexual abuse and the child then made a statement about the father and this was taken as confirmation of sexual abuse.

    [47] Single expert’s report, ll 712-714

17. That was not the way the mother put it.[48] 

    [48] Mother’s affidavit filed 11 May 2011 [36]

    On 7 April 2011 Ms [M] attended my residence during which she said words to the effect of,

    “We cannot legally stop [the child] from going to [the father] this weekend as the information disclosed to you by [the child] has not been enough”.

    I said words to the effect of,

    “What is the best thing to do in this situation?”

    Ms [M] Responded words to the effect of,

    “I suggest you contact the Child at Risk Unit and explain that the matter is being investigated by Care and Protection Services.  Tell them that there was no disclosure to the Police and that you would like someone with experience with young children to interview [the child].  You could also find a private child psychologist to interview her”.

    I responded words to the effect of,

    “I know she will talk if she feels comfortable”

    We then arranged to meet the following Tuesday with [the father] to discuss the matter. 

18. Further the mother stated[49]

    On 11 April 2011 I made an appointment for [the child] to attend upon child counsellor, [Ms L] who was recommended by [Ms N].  I am aware that Ms [L] was previously employed by Children at Risk.  I instructed my solicitor to send a letter to [the father’s] solicitor information them of the appointment…

    [49] Mother’s affidavit filed 11 May 2011 [43]

19. However the opening lines of Ms L’s “report to Child Protection Services” (dated 12 April 2011) corroborate Dr E’s version quoting the mother as requesting Ms L to see the child “to help her be able to talk to Police”.[50]

    [50] Loc. cit

20. A conclusion that this was some sort of coaching experience is however misplaced.  Viewed in the context of the police comments[51] and the mother’s subsequent discussions with Care and Protection Services[52] “… you could also find a private child psychologist to interview her”, the engagement of Ms L was reasonable.  The description of the mother’s participation (or perhaps more accurately her non-participation) in the process does not support any inference of coaching or any improper preparing of the child for any further interview with the police. 

    [51] Mother’s affidavit, filed 11 May 2011, [33]

    [52] Mother’s affidavit, filed 11 May 2011, [34] – [36]

21. However, notwithstanding my conclusion about the nature of the interview, I accept that the process as corroboration of abuse by the father, was for the other reasons suggests by Dr E, flawed and ineffectual.  It is curious that nothing in Ms L’s report supports that inappropriately leading questions were asked by Ms L.[53] 

    I asked her mother what she called that area and she replied “bottom”.  [The child] echoed her and put her finger on the area.  I asked her “Do you touch that part?” “Yes, I put my fingers in there.  I put my fingers in my mouth.  Yummy!” I asked if it tasted nice and she nodded.  I asked “Does anyone else touch you there?”  She replied “Daddy puts his finger in there”.  I asked her how that felt but she did not answer.

    [53] Ms L’s report dated 12 April 2011 annexed to mother’s affidavit filed 11 May 2011

1. This is in contrast to Dr E’s question to the child:[54]  

   I asked her if she’d ever been touched in a bad way.  She said “no” she’d never been touched in a bad way.

   [54] Report of Dr E, dated 20 September 2011, ll 288-289

2. My inability to comfortably rely upon Ms L’s report compounds my difficulty deciding whether alleged abuse occurred.

3. On a car ride home from the maternal grandparent’s home, the child had a conversation with the mother in which the mother, once again, told the child that no one is allowed to touch her bottom. The child then said:[55]

   [55] Mother’s affidavit, filed 11 May 2011, [59].

   “Do you want me to show you what Daddy does to me?”

   [The mother] pulled the car over and turned around and observed [the child] to put her hand down the front of her nappy to show me. She then said,

   “He puts his finger in the front of my bum and he just leaves it there, then he puts it in the back of my bottom.”

   …

   … Approximately 20 minutes after we arrived home [the mother] asked [the child] words to the effect of,

   “I want to ask you one more question if that’s ok”? [sic]

   [The child] responded,

   “Yes”

   [The mother] then asked [the child],

   “Do Daddy’s fingers stay on the outside of your bottom or do they go on the inside?”

   She responded words to the effect of,

   “He puts his fingers on the inside”.

   [The mother] then asked [the child],

   “Your front or your back bottom?”

   [The child] responded,

   “Both.”

   [emphasis added]

4. On 26 April 2011, the child, the mother and the maternal grandparents went on a holiday. While changing into her pyjamas, the maternal grandmother saw the child “roll onto the bed, spread her legs apart exposing her vagina” and said:[56]

   “Nonnie do you want to post something. It’s a game.”

   [The maternal grandmother] responded,

   “No that’s a silly game.”

   [The child] then poked her finger in her vagina and put it in her mouth and laughed. …

   [56] Maternal grandmother’s affidavit, [16].

5. The father has provided various possible explanations for why the child said he puts his fingers in her bottom. He has told the mother that he touches her bottom when he showers her, helps her wipe after using the toilet, smacks her or pats her on the bottom. The father also provides the explanation that he touched the child’s bottom when trying to help relieve her constipation. He did this by inserting a small ball of soap into the child’s anus when she was constipated. This was the paternal grandmother’s method of relieving constipation when the father was a child, so he had applied the same method to the child.[57]

   [57] Father’s affidavit, [75]; paternal grandmother’s affidavit, [16].

6. The mother, however, says that while the child did suffer from constipation and the father did treat it by inserting soap, “there has been enormous improvement in the frequency of her bowel movements”. However, she is “still prone to constipation”.[58]

   [58] Mother’s affidavit, filed 12 October 2011, [10].

The single expert witness

1. The child was interviewed by Dr E, the single expert in this matter and he records the following exchange during that interview:[59]

   I asked [the child] if anything bad had ever happened to her. She said that nothing bad has happened and she’s not been hurt. … She said she likes spending time with her father. I asked her if anything bad had happened with her father. She looked a little puzzled. She said her wish was to be a princess. I asked her if she’d ever been touched in a bad way. She said “no” she’d never been touched in a bad way. … She was chatty and happy throughout the interview. I asked her if anything else had happened. She was relaxed.

   [59] Single expert’s report, 9.

2. During the interview with the single expert, the mother was asked by the expert whether she wanted to ask the child any questions:[60]

   [The mother] said, “[The child’s given name] do you know when you said about touching your bottom. You know I said ‘you don’t put your finger in your bottom and don’t put your finger in your nose’. Why do you not touch your bottom?” [The child] looked a little confused by the question. She said “I say no.” [The child] then asked if she could go to the father and grandmother’s house now. [The mother] returned to asking questions about her bottom. [The child] said, “I don’t remember.” She asked again, “Does anyone touch your bottom.” [The child] said, “No.” [The mother] said, “You can tell, no one can touch your bottom.” [The child] said, “No”.  She appeared a little irritated by the mother’s questioning. Then [the mother] said, “Can you say what happened? Does anyone else touch your bottom?” [The child] said, “No”. [The mother] said, “Is that the truth?” [The child] said, “Yes”. [The mother] said, “This is a game, can you just tell me now?” [The child] was irritated. [The mother] asked again, “Has someone touched your bottom.” [The child] said, “I don’t know that much.” [The mother] said, “Do you put a finger in your bottom?” [The child] looked irritated and frustrated. She didn’t want to answer these questions.

   [60] Single expert’s report, 13.

3. The single expert suggested that the mother was predisposed to finding the child had been abused.

4. When the mother was thirteen, a tradesman attempted to kiss her. In his report, the single expert writes:[61]

   Her father was in hospital at the time and the [tradesman] gave her a lift. … “I hopped in the car and he kissed me.” This was reported later to the parents and to the Police. She did see a counsellor for a period of time. “I felt a bit traumatised at the time.” She said she saw him once again when she was 16 and still felt angry towards him.

   …

   [62]The main concern is her anxiety about possible sexual abuse as her experiences at the age of 13 may have predisposed her to excessive concern about abuse of her daughter.

   [61] Single expert’s report, ll 138-144.

   [62] Single expert’s report, ll 610-612.

5. The mother took issue with the single expert’s opinion that the tradesman incident caused her to be anxious and predisposed to excessive concern about sexual abuse. She states that “The incident did not [a]ffect me significantly. I note that I said ‘I was a bit traumatised at the time’ not afterwards or at present. I spent a maximum of two minutes discussing the incident with Dr [E] and I do not believe such strong conclusions can be drawn from such a short conversation.”[63] [Emphasis added]

   [63] Mother’s affidavit, filed 20 December 2011, [11].

6. The single expert’s opinion of the father is that “There is no significant antisocial history or forensic history or mental health history to suggest that he would be a risk to a child or others.”[64]

   [64] Single expert’s report, 18 to 20.

7. The single expert’s opinion about the sexual abuse allegations is this:

   … [The child] touched her genitals consistently as children of this age often do. The mother with the history of attempted sexual contact as a teenager had a heightened sense of concern and fear for her child about potential sexual abuse, exacerbated by the knowledge that [the father] would sometimes shower with the child and the child would sleep in the same bed as him.

   … The child continued to be disinhibited. The mother then questioned the child about her father touching her. [The mother] elicited statements that she interpreted as meaning that the father had been touching her and putting his fingers into her genitals. … The child had been referred to [Ms L] by the CPS worker … It is clear that [the mother] interpreted the purpose of the interview was to extract a disclosure. Unsurprisingly in a joint interview where [the mother] was present, [Ms L] did an interview looking for sexual abuse and the child then made a statement about the father and this was taken as confirmation of sexual abuse. …

   It appears that there has been enormous contamination of this whole issue and that one cannot be confident about statements made by the child about this issue involving the father and somebody putting their finger in her. … Clearly an interview with the mother and child together is flawed. Clearly an interview with the purpose of finding a disclosure of sexual touching is also flawed; the question, “Does anyone else touch you there?” is a very leading question. These questions been [sic] asked many times to the child and her response, “Daddy puts his finger in there” could very easily be a learnt response. …

   It must be noted that this child is extremely young and asking a child about feelings is enormously difficult because of the limited cognitive understanding about feelings at this age. Children at this age have great difficulty understanding questions from adults and this is why very skilled interview techniques are required to not contaminate the child’s answers. It’s clear that the interview techniques were not skilled and that the answers by the child and the conclusions by the mother and Ms [L] are likely to be spurious. …

8. During the voir dire, the single expert was cross-examined extensively by the mother’s counsel about his conclusion that the mother was overly anxious about the child being sexually abused as a result of the incident when she was a teenager. The mother said she had been “a bit traumatised” and, some years later, still felt angry towards him.[65] The cross-examination continued:[66]

   [65] Transcript of proceedings, 25 October 2011, 19 to 20.

   [66] Transcript of proceedings, 25 October 2011, 20 to 21.

   [COUNSEL FOR THE MOTHER]:   You don’t think you’ve placed an inordinate amount of weight on that particular remark by the mother, do you, Dr [E]?

   [THE SINGLE EXPERT]:   I think that it’s very significant, as the mother is somebody who is extremely vocal, I think anxious and very alert towards the possibility of sexual abuse. 

   [COUNSEL FOR THE MOTHER]:   So ­ ­ ­

   [THE SINGLE EXPERT]:   In her experience she felt it was an attempt at sexual  ..... her, and I think that she also has demonstrated her fear of possible sexual abuse of her daughter.

   …

   HIS HONOUR:   Now, you have taken in this case – and I’m not criticising you, I’m just trying to make sure I understand the process of your reasoning, there is a phrase, the phrase was used by [the mother] that she was paranoid, a bit paranoid about it, whatever it is, I am paranoid in line 228;  you appear to have accepted that that had a professional, if I can put it that way, connotation rather than what I would loosely term a normal, colloquial usage. 

   [THE SINGLE EXPERT]:   No, your Honour, I wasn’t intending to aver that it had a professional or a psychiatric inference;  it was purely words to demonstrate the degree of concern that she held about the potential for harm and it – really I guess a term that’s used in common parlance as suggesting a heightened degree of awareness or sensitivity.  That’s how I was interpreting the use of the word paranoid, and ­ ­ ­

   HIS HONOUR:   I see.  Thank you.

   [THE SINGLE EXPERT]:   ­ ­ ­ because of that she was very concerned about the father either having a shower with or being in the bed with her daughter because of her fear that as a male he may sexually abuse her daughter. 

   [COUNSEL FOR THE MOTHER]:   That was the conclusion you reached, Dr [E], was it?

   [THE SINGLE EXPERT]:   That was the conclusion she reached on line 229:

   I said to him, “I don’t think you should shower her or have her in the bed with you.”

   [COUNSEL FOR THE MOTHER]:   So if I could tease that out with you, because she mentioned the experience of the [tradesman] in the same vein you construed that she was overanxious about the possibility or probability of sexual – of the father sexually abusing the child?

   [THE SINGLE EXPERT]:   Correct.

   [COUNSEL FOR THE MOTHER]:   Right.  Based on an incident where the mother said someone tried to kiss her or did kiss her; is that right?

   [THE SINGLE EXPERT]:   The mother said this was a very significant event in her life.  I’m not sure why I haven’t been able to make that clear enough to you.  She said she was – she felt traumatised at the time, but she reported it  ..... and went to the police;  she saw a counsellor for a period at the time.  It was a very significant event in the child – in the mother’s life when she was a child.

9. I have indicated to the parties and their lawyers that I was not assisted to come to a conclusion about whether the child had been sexually abused by her father; by the report of the single expert witness Dr E.

10. The task of a single expert witness is never easy.  The opportunities for observation and consultation are rarely if ever entirely satisfactory, because of constraints of time and money.  Usually, each party is seeking some corroboration from the single expert witness of his or her position. 

11. Although the expert may give evidence about the “ultimate issue”[67], more frequently the determination of that matter will fall to the Trial Judge.  Each party and the Judge may confront the single expert witness with hypothetical sets of facts to see if the expert will or could modify or qualify his or her opinion.  Frequently, with a necessarily limited database a single expert witness faces challenges to his or her opinion. 

    [67] Evidence Act 1995 (Cth) s 80

12. It is important therefore that single expert witnesses follow the pathway prescribed by authority[68] to prepare and present his or her report.

    [68] Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA305 and Sydney Wide Distributors Pty Ltd v. Red Bull Australia Pty Ltd [2012] FCA FC 157

13. The pathway accords with common sense.  First, the expert must have primary and particular qualifications and experience.  For example, expert evidence on the health of children should come not only from a medical doctor but desirably from one specialised in child medicine and moreover someone experienced in such an area of practice and knowledge.

14. Second, the expert should clearly indicate the information and facts upon which he or she has relied and identify the assumptions upon which he or she proceeded. 

15. To the extent that the expert relies on research to form his or her opinion, it may be wise to identify that research, particularly if it is likely to be controversial and invite cross-examination.  An expert becomes an expert through knowledge of and reliance upon, research other than his or her own and the expert’s opinion must necessarily be a synthesis of knowledge in the field of expertise.   However, comments such as “research shows” may indicate a lack of specialist acuity. 

16. Third, the pathway of reasoning to the opinion must be discernible.  This would seem to be a statement of the obvious but surprisingly from time to time it is overlooked by the single expert witness. 

17. In this matter Dr E probably with some justification, did not envisage his qualifications might be in issue and provided in his report no curriculum vitae and no statement of his qualifications and general or specific expertise.  Whether he had the expertise to give an opinion about whether the child’s reported statements were consistent with her age and development was a live issue in the matter.  Under cross-examination he asserted an expertise based among other things on experience [69] and I accept that he established then (if not before) his credentials to give an opinion on the issue.

    [69] T 9 and 10 25 October 2011

18. Dr E was critical of the process whereby the disclosures occurred and offered an opinion piece as an addendum to his report which appeared to be (as at that time at least) an unpublished paper.  The generalised opinions therein expressed were not helpful in dealing with the specific issues in this matter. 

19. He was particularly critical of the reported conversation between the child and Ms L whom he asserted (pejoratively) was consulted by the mother to prepare the child in some way to make her ‘disclosure’ to the police. 

20. I accept there is validity in some of his criticisms as to the nature of the questioning and as to the presence of the mother when the questioning was taking place.  I formed the impression however that Dr El thought that this was some kind of coaching exercise.  I do not so find.  The mother stated in her affidavit[70]

    On 11 April 2011 I made an appointment for [the child] to attend upon child counsellor, [Ms L] who was recommended by [Ms N].  I am aware that Ms [L] was previously employed by Children at Risk….

    [70] Affidavit filed 11 May 2011, [43]

21. I accept that explanation.

22. However, the single expert witness’s criticism about the format is nonetheless valid and I extract little assistance from those reported disclosures.

23. The pathway of the single expert witness’s reasoning appears to be something of this sort. 

    a)The behaviour of the child was normal, healthy sexuality for a child of her age.

    b)The mother had been predisposed towards suspicion about sexual abuse from an experience she had when she was thirteen and indeed had become “paranoid” about the issue. 

    c)The second element of the reasoning was that in some way the mother was hypersensitive to the issue of sexual abuse and that this had influenced her responses to any comments or disclosures made by the child.  The time the expert spent with the mother was very limited.  He kept no log, he asserted, and thought it was longer than the time the mother asserted that it was.  In this regard I accept her evidence about this matter.  It is more likely that she would recall how short the time was than the doctor would because of the importance of the matters involved to her. 

    d)The incident giving rise to the mother’s asserted hypersensitivity must have been unpleasant.  It involved a tradesman at her house, giving her a lift in his car and then kissing her.  She dealt with the issue in an appropriate way, she informed the police and her parents and reported that some years later when she saw him she was still angry with him.  It is difficult to imagine how those events as reported by the mother in her affidavit and also to Dr E could be interpreted by him as some form of life changing event.  It is true that the mother unfortunately for these purposes used the word paranoid[71].  However, Dr E in response to questions modified or at least qualified what he meant by paranoid to say that it meant in these circumstances “a heightened degree of awareness or sensitivity”[72].

    e)The process of investigation in the sense of the disclosures as reported to various people appeared only to reflect normal healthy sexuality for a child of that age.  But while he accepted that there was a genuineness about the mother’s concerns there was no validity for them and if she were unable (and he believed that she would be able) to control her concerns the child may suffer when she was in the care of her mother. 

    f)Examining that process sequentially it is difficult to follow how Dr E moved from normal sexual exploration of a young child to the normality (if I accept the substance of some of the disclosures at least) of some other person different from the child putting his finger into her vagina or anus.  Although some of the child’s behaviour may amount to young child exhibitionism (or perhaps lack of exhibitional restraint) which Dr E is qualified to categorise as normal and in respect of which I accept his opinion, he appeared to disregard the fact that the child had in fact asserted that her father was involved in penetrating her vagina and anus with his finger.  Dr E conceded that such activity would not be normal healthy sexuality in a child of the child’s age. 

    g)In the process of his report Dr E[73] referred to the fact that the child repeatedly denied that she had been touched by her father.  This was the subject of cross examination and the opinion so expressed was significantly modified.[74]  It is true that there was a denial but to say that it was repeated indicated a failure on the part of the expert to properly martial the evidence that he had before him. 

    [71] P 18 T L 29 ff

    [72] P 21 T L 3

    [73] Report of Dr E L 780

    [74] T P 12 and particularly L 36

24. In summary, it appears that having begun from what I regard in the circumstances on the evidence as an unjustified assumption the only activity complained about was the activity of the child herself (and not her father as the disclosures as reported clearly identify), the expert moved to an assessment which I do not accept as validly constituted on the evidence (before me at least) that the mother had heightened sensitivity about sexual abuse and was inappropriately protective of her child.  I do not accept that the doctor had either the evidence from the material before him or that there is evidence before me which would justify that conclusion.  As a consequence I do not accept his opinion about the mother’s mental state. 

1. Dr E was further cross-examined by Mr Gill on behalf of the father[75].  This cross-examination took up the concerns that Dr E had about the mother’s mental state and led to a proposition being put and accepted that excessive levels of anxiety on the part of the mother may have a deleterious effect on the child if maintained in the future.

   [75] P 33 ff T

2. While I accept that Dr E’s expertise means that the hypotheses which he explored in the course of cross-examination[76] are possible, the flaws in the initial assessment by him of the other matters in my opinion raise doubts as to the validity of these supplementary conclusions. 

   [76] Particularly at pp 38 & 39

3. It would have been of great assistance to me in this matter if Dr E’s opinion had been more effectively thought out and presented.  As it is, while I accept his expertise in relation to many of the matters upon which he commented and while I accept his opinion about many of the matters as I have set out above.  I cannot derive from his report any corroboration for the position of the father that his outright denial that something occurred must necessarily be supported.

4. The “allegations” or perhaps the comments or reports by the child are disturbing.  Her exhibitionism and her touching herself may be satisfactorily explained in Dr E’s words such as “children of this age often do”.[77]  However, it is her statements that her father does things to her which do not fall into the normal childhood sexuality of which Dr E speaks. 

   [77] Single expert’s report, 19

5. Dr E seems to think there may be a “learnt” response but offers no incident or evidence of which he is aware to support that contention.  None of the conversations referred to at some length in this judgment would support a process of coaching or teaching of what response was required.  I do not accept Dr E’s conjecture about this.  It appears to be based at least in part on his belief that the mother had been predisposed to believe the child had been abused, by the mother’s own experience as a thirteen year old.  I have already indicated why I think that Dr E did not think that proposition through carefully enough.

6. I reject that the child was, either inadvertently (and even more strongly advertently) coached to say her father had done something to her. 

7. It is possible she made up the purported actions of her father.  It is possible she misremembered or misconstrued some of his actions.  The somewhat unusual remedy for constipation of putting a ball of soap into her anus would provide an alternative (innocent) explanation for her father putting his finger in her (back) bottom at least once.  However, that does not explain the finger ‘left’ in the (front) bottom.  (The father agreed he did not use the cream he was provided with to apply to remedy the child’s thrush condition.)

8. Accordingly, there is a possibility on the evidence that something inappropriate happened.  The question is: if the father were to spend time with the child unsupervised is there an unacceptable risk that he would engage in some form of sexual abuse. 

9. The father point blank denies on his oath (or affirmation) that he behaved improperly.  He was apparently credible when he gave that evidence.  I do not pretend to be able to look into people’s hearts and to determine if they are telling the truth.  However, no part of the father’s demeanour showed any signs that he was not telling the truth. 

10. I have explained at some length why I do not regard any of the expert evidence – particularly that of Dr E as corroborative of whether or not something occurred between the child and her father. 

11. I could not on the evidence (in accordance with the required standard of proof) find either that the actions of abuse asserted did or did not happen.

12. In the end I am left with the difficulty that the report neither confirms nor refutes that sexual abuse has occurred.  The evidence of the parties bearing in mind that the mother was not a witness except to the disclosures is inconclusive to establish to the requisite extent[78] that something occurred or did not occur. 

    [78] Briginshaw v Briginshaw (1938) 60 CLR 336 & Evidence Act 1995 (Cth) s 140

Ms J’s report

1. The mother commissioned a report from Ms J, a clinical psychologist. Ms J’s report concerned the effect, if any that “the one incident at age 13 may have predisposed the Mother to excessive concern and over reaction about abuse of her daughter and in particular in respect to her current levels of anxiety about sexual abuse.”[79] Ms J concluded, in contrast to the single expert, that:[80]

   4.1      When interviewed it was not apparent that [the mother] was particularly traumatised even at the time by the unwelcome advance of the [tradesman]. His unsuccessful attempt to kiss her represented a relatively minor form of sexual abuse …

   4.2      At the time of the incident, [the mother’s] family acted protectively. Parental disbelief and lack of emotional support from carers, particularly mothers has been identified as a factor in predicting the degree of anxiety or depressive symptomatology experienced by a person who has been sexually abused. … This does not in any way tally with [the mother’s] experience.

   …

   4.4      [The mother] has no significant mental health history. From [the mother’s] account it was evident that her initial stress about the [tradesman’s] behaviour soon resolved into healthy and justified anger. She required minimal counselling. …

   4.5      [The mother’s] current anxiety has been engendered by her belief that her daughter has been sexually abused and by the consequences, such as court proceedings, that have resulted from her concerns. It was not apparent in [the mother’s] interview that she was anxious about her child being sexually abused before or even soon after birth. It appeared rather that after [the child’s] birth, [the mother] resisted her gradually dawning concerns not wanting to heed them.

   …

   6.1      In my opinion, [the mother’s] experience at age 13 was not particularly traumatic for her given the relatively minor nature of what happened, her own and her family’s responses at the time and the counselling she received. She displayed no subsequent mental health issues going on to complete tertiary studies, to travel independently overseas and to establish several healthy adult intimate relationships. [The mother] works full-time [in the education industry] at a prestigious [educational institution], caring for [the child] the majority of the time and is gradually developing a new relationship. This does not suggest she is an anxious or traumatised person. Indeed [the single expert] described [the mother] as a “healthy competent parent”.

   [79] Ms J’s affidavit, [2].

   [80] Ms J’s affidavit, annexure C.

2. I accept Ms J’s opinion about this issue.  I have already indicated my reservations about Dr E’s opinion in relation to this.  Ms J (admittedly focussing specifically on this matter) sets out logically her opinion and the basis for it. 

3. In considering whether there is a need to protect the child from harm, it is also necessary to consider the issue of the father’s physical disciplining of the child. The mother complains that the father smacks the child, one time smacking so hard she vomited. This was in response to the child throwing something from the car window while the parents were driving. The mother alleges that the child’s child care teachers have said the child “flinches” when someone raises there arm or when there are loud, unexpected noises.[81]

   [81] Mother’s affidavit, filed 12 October 2011, [27].

4. The mother also raised concerns about the father’s hitting of the family dogs, saying he hit and kicked one of their dogs and that the other was so scared of the father, he wet himself when the father reprimanded him.[82] The father admits he smacked the dogs, but did so when house training them and did not hit them hard.[83]

   [82] Mother’s affidavit, filed 12 October 2011, [29].

   [83] Father’s affidavit, [121].

5. The father states that he has smacked the child on the bottom, but says he does not do so to the point of hurting her. He also states that the mother has used smacking as a form of discipline.[84]

   [84] Father’s affidavit, [93] to [95].

6. I do not have concerns about the father’s smacking the child.  I accept his evidence on this matter.  The alleged cruelty or violence towards the dogs was not highlighted in oral evidence and I am overall inclined to accept the father’s explanations about this. 

7. There was one incident when the father saw bruises on the child’s arm which were caused by the mother. The mother concedes she grabbed the child by the arms and this left bruises. She did this because the child “wouldn’t sleep in her own bed” and she “felt bad about it”.[85] If there is any suggestion that the child is at unacceptable risk of physical harm from the mother, I reject that suggestion. The mother is a loving parent and my impression is that she wants to protect and do the best for her child. This isolated incident is not representative of a continuing course of unacceptable conduct.

Other Factors

[85] Single expert’s report, 7.

Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both parents

1. The mother has been the child’s primary carer since birth.[86]  She has a loving relationship with the child and is a protective parent. The single expert observed the child and the mother to be “very happy to be with each other”.[87]

   [86] Father’s affidavit, [31]; mother’s affidavit, filed 11 May 2011, [11].

   [87] Single expert’s report, 13.

2. The father’s relationship with the child is also loving and affectionate. The single expert observed the child together with her father:[88]

   [The child] was very pleased to see her father. They cuddled and were very affectionate. … [The child] sat on her father’s lap and cuddled him. She appeared very relaxed and calm. [The child] said that she likes to see her father and play games.

   [88] Single expert’s report, 12.

3. The child appears to love her father and to enjoy spending time with him. When the child’s time with the father ends and she is picked up by her maternal grandmother, she is often reluctant to go, saying “No no, I don’t want to go” and holding onto the leg of the dining table at the father’s home.[89]

Additional considerations

[89] Father’s affidavit, [60] and [69]; paternal grandmother’s affidavit, [24] and [25].

Section 60CC(3)(a) – any views expressed by the child

1. In these proceedings, any views expressed by the child in relation to where she might like to live or how much time she would like to spend with each parent has not been the subject of any independent report. Nor has she expressed a view to the parents.

2. Even if the child had expressed such views, being only four years old, I would place very little weight on her views. Such a young child is not of sufficient maturity that she would understand the full scope of consequences in choosing to live with one parent or the other.

Section 60CC(3)(b) – the nature of the child’s relationship with each of the parents and other persons

1. I have commented on the child’s relationship with the mother above and have nothing further to add.

2. I have also commented on the child’s relationship with the father above. The only comment I would add is that the father shared in caring for the child during the relationship, particularly on weekends when the mother attended classes.[90] He has experience in caring for the child on a day-to-day level.

   [90] Father’s affidavit, [32] to [43].

3. The child has a close relationship with her paternal grandmother:[91]

   … When [the paternal grandmother] came into the room [the child] was very pleased to see her. She said that she likes to play with the dog and see the horses when [the paternal grandmother] sees [the child]. They were very chatty and relaxed with each other. …

   [The child] was cuddling [the paternal grandmother] and then floating back to her father.

   [91] Single expert’s report, [12].

4. She also has a very close relationship with her maternal grandparents:[92]

   [The child] cuddled her [maternal] grandmother. … There was clearly a strong bond between [the child] and her grandparents.

Section 60CC(3)(c) – the willingness and ability of each parent to facilitate and encourage a relationship between the child and the other parent

[92] Single expert’s report, 13.

1. The mother has facilitated the child spending supervised time with the father in accordance with Court orders. That time was supervised by the paternal grandparents and the mother was “very happy with the paternal grandmother”.[93] The question arises as to whether the mother would be willing and able to facilitate and encourage a relationship between the child and the father if the child were to spend unsupervised time with the father. The mother told the single expert “She wanted the child to see the father because she loves him but she wants her to be safe. She doesn’t want overnight contact. … ‘Maybe when she’s older and can be trusted.’”[94]

   [93] Single expert’s report, 8.

   [94] Single expert’s report, 8.

2. There are factors which suggest that formerly at least the mother may not be willing or able to facilitate and encourage a relationship between the child and the father.

3. The father raises other matters which would suggest the mother would not be willing and able to encourage his relationship with the child:

   a)The mother asked Ms P to care for the child one afternoon instead of asking the father first when the father was available.[95]

   b)The mother asked the father to look after the child every second Saturday while she attended classes. However, when the father offered to care for the child every Saturday, the mother refused the offer.[96] [This refusal is not unreasonable. It is understandable the mother would like to spend whole weekends with the child.]

   c)The mother did not allow the child to spend time with the father on her birthday in 2011, saying a party had been arranged at the child’s kindergarten.[97]

   d)The mother told the child that she can be (the child’s given name) “whoever she wants” and not (the child’s given name) Hoffman because she is no longer part of the Hoffman family.[98]

   e)The child said the mother did not want the father to come to a kindergarten party for mothers and fathers.[99] 

   [95] Father’s affidavit, [19].

   [96] Father’s affidavit, [23].

   [97] Father’s affidavit, [50].

   [98] Father’s affidavit, [63] and [66].

   [99] Father’s affidavit, [67].

4. By contrast, the evidence demonstrates that the father is willing and able to facilitate and encourage the child’s relationship with the mother. When the father spent time with the child in the spring of 2011 (after the allegations had been made), the father and the child went to pick flowers on the paternal grandparents’ property. When the child picked some flowers for the father, the father asked her “Why don’t you pick some flowers for mummy?” and looked for flowers with the child.[100] In Christmas of 2011, the father consented to the mother taking the child for an overseas holiday although the travel arrangements meant that the child would miss celebrating Christmas with the paternal family.[101]  However, I accept the mother’s more recent evidence that she is willing (and able) to support the child’s relationship with the child’s father.  (See eg. her Minutes of Orders Sought.)

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time and communicating with a parent

[100] Father’s affidavit, [70].

[101] Father’s affidavit, [119].

1. There is very little practical difficulty or expense for the child to spend time with either parent. The parents live relatively close to each other.  The paternal grandparents live in Suburb Q.[102]

   [102] Father’s affidavit, [99] and [100].

2. The nature of the father’s new employment which requires him to do shift work across a 7 day roster, including weekend work, will present some practical problems.

Section 60CC(3)(f) – the capacity of the parents and any other person to provide for the child’s needs

1. There is no question the mother is able to provide for the child’s physical and educational needs. However, there is some concern about her ability to provide for the child’s emotional and psychological needs, given her belief the father sexually abused the child. The single expert writes:[103]

   [The mother] has continued to provide well for [the child]. [the child] is developing well and is a healthy young child. [The mother] provides emotionally, cognitively and physically for the child. The one area of concern is her excessive levels of anxiety about whether the child could be sexually abused.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either parent and any other characteristics of the child the Court considers relevant

[103] Single expert’s report, 17.

1. The father enjoys hunting and has kept animal carcasses in his cellar for cooking. The mother alleges that the child was present on one occasion when the father skinned a deer and threw its head into the bushes, and witnessing this greatly distressed the child.[104]

   [104] Mother’s affidavit, filed 12 October 2011, [30].

2. The father’s account of this incident is very different from the mother’s. He says that on 4 September 2011, the paternal family had lunch together for Father’s Day. After lunch, the father went to the cellar to skin a carcass. Unbeknown to the father, the child followed him into the cellar a couple of minutes afterward. The father recounts his conversation with the child in the cellar, saying it was calm and the child did not appear distressed. She asked him questions about what the father was doing. The father explained that the meat people eat comes from animals, that skinning does not hurt them and emphasised that it was important not to hurt the animals.[105]

   [105] Father’s affidavit, [57] to [59]; paternal grandmother’s affidavit, [21].

3. Despite the father’s perception that the child was calm during this incident, it is possible that he was not aware of her distress because he was otherwise occupied. The mother’s evidence that the child seemed distressed is probably more accurate. However, it is unlikely the father intended to upset the child. An order restraining the father from allowing the child to witness such things (as is sought by the mother) would fix this problem.

Section 60CC(3)(i) and (4) – each parent’s attitude to the child and to the responsibilities of parenthood.

1. The father has by and large demonstrated an appropriate attitude to the child and to the responsibilities of parenthood.  The father initially took every opportunity to spend time with the child.  However he failed to spend time with the child in the period before the reopening of these proceedings. Immediately after separation, the father agreed to care for the child on days when he was not scheduled to because the mother was busy. This is something he should have done and it is appropriate that he so did. The father paid for half of the child’s tonsillitis surgery, also as he should have.[106]

   [106] Father’s affidavit, [114].

2. The mother alleges that during the period the father spent time with the child between separation until April 2011, the father was not present during changeovers. Rather, it was his parents who facilitated changeovers. The paternal grandparents informed the mother that the father was hunting, shooting or out the back paddock and would not be home until the afternoon.[107]

   [107] Mother’s affidavit, filed 11 May 2011, [19].

3. The father alleges the mother did not inform the father that the child had been to hospital to have her tonsils removed.[108] It is alleged by the paternal grandmother and the father’s sister-in-law that the mother allowed the child to be in the room when, on her hen’s night, a stripper started his routine.[109]

   [108] Father’s affidavit, [55].

   [109] Paternal grandmother’s affidavit, [36] and [37]; Ms A’s affidavit, [4] and [6].

1. None of these incidents causes me to be concerned about the issue of the parents’ attitudes to their responsibility as parents. 

Conclusion

1. I have to balance benefit to the child with risk to the child. 

2. There are benefits for the child in having a proper relationship with her father.  It is acknowledged by the child’s mother.  I do not accept that his physical punishments or his somewhat blasé attitude to exposing the child to dead animals (the skinning incident) must necessarily override the benefits to the child of having a loving, affectionate and happy relationship with her father. 

3. So far as the risk is concerned, I derive some comfort from the orders which the mother is seeking which contemplate overnight time for the child with her father but not immediately.  I recognise that the mother’s Minutes of Orders Sought require supervision until the child turns 7 (which will occur in May 2014).

4. I do not regard the mother as hypersensitive or obsessive in her desire to protect the child.  She raised the matter with the father when the assertions first arose and she did not terminate the child’s time with her father at that point.  Her subsequent responses were proportionate and reasonable and in accordance with the advice she received. 

5. Contrary to the concerns expressed by Dr E about the mother’s mental capacity to cope (which I regard as unfounded from the evidence), I believe the mother will accept and cope competently with the situation once this decision is delivered even if that involves on my part a conclusion that the child’s time with her father would not expose her to an unacceptable risk.

6. Balancing the incongruity of the allegations with the father’s denials, I determine that the risk to the child if she were to spend time with her father is not unacceptable.  This conclusion is not capable of precise analysis but is rather a synthesis of all the evidence and the impressions I have formed about the witnesses and their evidence.  I take account also of the father’ persistence in these proceedings.  I take account of the fact that the child is now older.  I take account of the protection and benefit to the child which is afforded by both her maternal and paternal grandparents.  I also take account of the decision I have made that the child should not spend half her time with her father. 

7. This last decision is not based on the risk that the father may pose to the child but on the father’s present working arrangements, and his inexplicable failure to see the child for so long after the father fell out with his parents.  I am also influenced by the father’s response to the deer skinning incident which in my opinion demonstrated on his part an inability to put himself in the child’s shoes.  He accepted what he perceived as her (untroubled) response without looking more closely or empathetically to see if that was her “real” response. 

8. In my opinion, the child should spend time with her father – as both parents agree she should.  There is a need for a reintroductory period because of the father’s choice not to spend time with the child for a lengthy period.  The initial periods should be supervised for the protection of the child, her father and her mother.  This will have the effect of restoring confidence and comfort to all.

9. There should be four introductory periods under the supervision of the paternal grandmother on alternate Sundays from 10am to 5pm.

10. Thereafter the child should spend each alternate Sunday with her father without formal supervision although it would be sensible and desirable for that time to be in the presence of the father’s partner.  This stage should be from 9am to 5pm and should continue until the end of the second school term holidays when the time should expand to be from 10am Saturday until 5pm Sunday on every second weekend.

11. In 2015 the child should start to spend half her school holidays with her father from holidays at the end of term one 2015, if the father has the ability to take leave to spend that time with the child.

12. I accept these orders are different from those sought by either the father or the mother.  In my opinion they best represent an introduction period suitable for the child.  The child should be able to communicate with her father by telephone or Skype as often as she wishes (and with her mother when she is with her father as often as she wishes).

13. I agree that there should be orders restraining the father from exposing the child to seeing his skinning animals or the like and she is now of an age where she should be able to bath and toilet herself without any assistance from her father and I would be inclined in the circumstances for the protection of all concerned to restrain the father from engaging in those activities. 

14. I will provide the parties with an opportunity to agree upon the form of the orders that I make although the substance will remain as I have indicated above.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 4 February 2014.

Legal Associate: 

Date:  4 February 2014

Annexure A – minutes of orders sought by the parties prior to the matter being re-opened

Final Orders Sought by Applicant Father – Initiating Application filed 21 April 2011

1. That the Mother and Father have equal shared parental responsibility for the child [N] born … May 2007 (“[the child]”)’

2. That [the child] live with the Mother and the Father as follows:

   a)From 9am Sunday until 5pm Tuesday with the Father;

   b)From 5pm Tuesday until 9am Sunday with the Mother;

3. That [the child] live with the Mother on Christmas Day each year.

4. That [the child] live with the Father on Christmas Eve each year.

Respondent Mother’s Minute of Orders Sought – 13 February 2012

1. The child [N, (“the child”)], born … May 2007, live with the Mother.

2. [The child] have telephone or skype time with the Father on three occasions per week;

3. The Father be at liberty to correspond with [the child] via written communication including but not limited to by email, card and letter. 

   Or in the alternative:

4. [The child] live with the Mother;

5. [The child] spend time with the Father, supervised by the paternal grandmother as follows:

   a)        For three months from the date of these Orders:

   i.From 10:00am Sunday until 5:00pm Sunday each alternate weekend;

   b)       Following a) until [the child] commences primary school:

   i.From 10:00am Saturday until 5:00pm Saturday and 10:00am Sunday until 5:00pm Sunday each alternate weekend;

   c)Following b):

   i.From 10:00am Saturday until 5:00pm Sunday each alternate weekend.

   d)From 12noon Christmas eve until 10:00am on Christmas Day: and

   e)From 10:00am until 5:00pm on Father’s Day.

6. That notwithstanding these Orders:

   f)[The child] spend time with the Mother from 10:00am Christmas Day until 10:00am Boxing Day; and

   g)[The child] spend time with the Mother from 10:00am until 5:00pm Mother’s Day.

7. [The child] have telephone or skype time with the Father on three occasions per week.

8. The Father is restrained from allowing [the child] to view, either on film or in person, the slaughtering of animals or be exposed to firearms.

9. The Father will do all things necessary to prevent other persons from allowing [the child] to view, either on film or in person, the slaughtering of animals or be exposed to firearms.