Jamieson and Pearson

FAMILY COURT OF AUSTRALIA

JAMIESON & PEARSON

[2010] FamCA 902

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

M & M (1988) FLC 91-979
N & S and the Separate Representative (1996) FLC 92-655
Johnson & Page (2007) FLC 93-344

APPLICANT:

Ms Jamieson

RESPONDENT:

Mr Peason

INDEPENDENT CHILDREN’S LAWYER:

Suzanna Sheed

FILE NUMBER:

AYC

104

2007

DATE DELIVERED:

8 OCTOBER 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

15 MARCH 2010, 2-6, 9-13 & 16-19 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ALLEN

SOLICITOR FOR THE APPLICANT:

MORRISON SAWERS

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MRS HOOPER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SUZANNA SHEED & ASSOCIATES

Orders

That all parenting orders in relation to the child T (currently registered as T Jamieson C) born … January 2003 shall be and are hereby discharged.
That pursuant to s 69VA of the Family Law Act (1975), it is hereby declared that MR PEARSON born … 1975 is the biological father of T.
That the mother shall sign all documents necessary for the Registrar of Births, Deaths and Marriages to alter T’s birth records to register MR PEARSON as T’s father and to ensure that T is registered as T PEARSON C and:
(a)The mother shall within 21 days of the date of these orders forward those documents to the father by registered mail to his residential address at …, New South Wales;
(b)The father shall sign the documents as requested, and within 21 days of the date of their receipt, he shall forward them to the mother by registered mail to her residential address at …, Victoria; and
The mother shall within 21 days of the receipt of the signed documents, do all acts and things necessary to file the documents with the Registrar of Births, Deaths and Marriages including paying any associated fees.
That the mother shall have sole parental responsibility for T.
That T shall live with his mother.
That the father shall spend time with T at the D Contact Centre at times and for hours directed by the Contact Centre, up to one occasion per month.
That the Independent Children’s Lawyer is requested to arrange for the D Contact Centre to forward relevant application forms to each parent, and thereafter the Independent Children’s Lawyer shall be discharged.
That the mother shall within 21 days from the date of these orders attend a general medical practitioner to have T referred to a psychologist or such other professional as recommended by the general medical practitioner for T to receive therapy for trauma and stress, and the mother shall ensure T attends upon that person as directed.
That 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That pursuant to s 128(5) of the Evidence Act 1995 (Cth) a certificate shall be granted to the father in respect of the evidence given by him in this case.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That there will be no orders for costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 104 of 2007

MS JAMIESON

Applicant

And

MR PEARSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

T is aged 7½. His parents separated when he was a baby. Since then he has been the focus of their conflict, and rounds of litigation in this Court and the Children's Court.
The parties’ positions are polarised. The mother says she is concerned that in the father’s care T has been sexually abused or exposed to inappropriate sexual behaviour. She wants sole parental responsibility, for T to continue to live with her and his step-father and half-siblings, and not to spend any time with his father, or only supervised time. The father denies the allegations. He says they are fabricated by the mother. He wants 50/50 shared care, saying in evidence that he is prepared to move towns to live closer to the child.
I made final orders after a contested hearing in July 2006, when T was 3½ years’ old. Those orders provided for the parents to share parental responsibility, and for T to live with his mother for nine days’ per fortnight, and his father five days’ per fortnight. That arrangement continued until the end of January 2007, when the mother contacted the Department of Human Services, saying she was concerned that T had been sexually abused by the father.
DHS took proceedings in the Children's Court. On 28 August 2007, the Children's Court made an interim supervision order, and on 14 January 2008 a 12-month supervision order, on the basis that the child was at risk of emotional and psychological harm, due to the acrimony between his parents. It is difficult to say exactly how the case proceeded without the benefit of a proper record from that Court. I was advised that no transcript was available, and any tapes of the proceedings had been “wiped”. It is however clear that, with T staying with his mother and no longer spending time alone with his father, the sexual abuse allegations were never determined one way or the other.
In August 2008, there was a report to DHS that the child had complained he was physically and sexually abused by his step-father, Mr Jamieson. T was removed from his family and placed in foster care for several weeks, but returned after a DHS investigation failed to substantiate that abuse.
In late 2008, DHS decided not to pursue further Children's Court orders, on the basis that the mother was starting family law proceedings in the Federal Magistrates' Court (on 18 December 2008), seeking orders for the child to live with her and spend time with the father only on a supervised basis at a Contact Centre.
Unfortunately, the case remained in the Federal Magistrates’ Court for ten months until, on the day it was due to be heard, Walters FM transferred it to this Court. On the first day before me (15 March 2010), I made arrangements for the balance of the trial to be heard.
Throughout the Children's Court proceedings and orders, T continued to live with his mother. His father did not see him between February and September 2007. Then, until early 2009, he saw the child for a few hours per fortnight, under DHS supervision. From March 2009 he continued to see T for a few hours per fortnight, at S Contact Centre. That continued until October 2009 when there was a disagreement between the father and the S Centre staff, so that Centre refused to supervise further. The father has not seen T since then.
On 15 March 2010, I ordered the parties to apply to D Children’s Contact Service, so that the father could resume spending supervised time with the child as soon as possible. The mother received and returned the application forms as requested. The father said that he never received them. I shall return to that claim.
At the start of the case, the ICL indicated support for the mother’s position that T should not spend any time with his father. By the end of the case, the ICL’s position was that the child did not face an unacceptable risk of sexual abuse by his father, so that after a period of therapy for T, and supervised time with his father, the time should eventually become unsupervised.

BACKGROUND

The father, Mr Perason, was born in 1975 and is aged 34. He lives near Albury in a unit owned by his mother. He trained in IT, but for some years he has undertaken casual hospitality work or been unemployed.
T’s mother, Ms Jamieson, was born in 1983. She was 19 when T was born and is now aged 26. She has been married to Mr Jamieson since December 2005. He is a driver. She is at home caring for T, and the Jamiesons’ three children, J (nearly 6), K (aged 3), and R (18 months’ old). They live in regional Victoria.
The father and the mother started to live together in October 2001. T was born in January 2003. The parents separated on 2 September 2003.
Soon after separation, the mother took T to New South Wales. The father obtained an ex-parte recovery and residence order, as a result of which, in the early hours one morning the Federal Police took T from his mother to place him with his father. Soon after, the mother contacted DHS and reported concerns about the child in the father’s care.
The mother also started family law proceedings. By mid-October 2003 there was an interim Magistrates’ Court order for the child to live week-about with his parents, in the Albury area with his father, and in regional Victoria with his mother.
In early-2005, the mother said T was displaying unusual sexualised behaviour. She again contacted DHS. They investigated, but could not substantiate any abuse. In February 2006 the father filed a Notice of Child Abuse or Risk of Child Abuse alleging that T was sexually abused in his mother’s home. That too was not substantiated.
The family law proceedings came before me in Melbourne in July 2006, after a long wait in the Albury circuit list.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon the following material:
(a)Her application filed 1 February 2010
(b)Her affidavits 21 September 2009 and 21 June 2010
(c)The affidavit of her husband filed 21 June 2010
(d)The evidence of child-care worker, Ms W.
The father relied upon the following:
(a)His letter to the court of 26 July 2010 setting out the orders sought
(b)His affidavits filed 18 June 2010 , 25 May 2009 and 1 October 2009
(c)The affidavit of Ms Y filed 26 February 2007
(d)The affidavits of his mother filed 25 May 2009 and 1 October 2009
(e)The report of Mr H dated 10 August 2007 (but he was not available for cross-examination).
The ICL relied upon the following:
(a)The Family Report of Mr S dated 12 October 2009
(b)Four reports of Dr K, two dated 27 July 2007, and one of 24 August 2007 and 1 September 2008
(c)The evidence of Ms M from S Contact Centre
(d)The report of Ms A from CASA, dated 5 January 2009
(e)Dr G’s reports (Ex. ICL 1) dated 19 June 2007 and 19 November 2007
(f)The evidence of Ms E from DHS.
All witnesses gave evidence. Ms W and Dr G gave their evidence by telephone.
The father represented himself. That could not have been an easy task, particularly in light of the emotional challenges presented by the issues in this case. However, he had a very good grasp of the detail of the material and was able to formulate extensive questions to cross-examine the witnesses.
I ensured that the father had a copy of the main relevant sections of the Family Law Act. Mr Allen for the mother and Mrs Hooper for the ICL were helpful in changing the order of cross-examination, and submissions, to assist the father, without jeopardising their own clients’ positions. I also made allowances for the father to have extra time, for example to read documents, or to prepare for cross-examination.
At the start of the case I ensured that each party told me the evidence upon which they were relying, most particularly the witnesses that they were calling and the affidavits or statements that they relied upon. They were as set out above, except that the witnesses Dr G and Ms W were added later.
During the hearing, the father said he wanted Dr G to be called. I agreed, and asked the ICL to arrange it, so that each party could cross-examine her. She is the psychiatrist who wrote two Children's Court Clinic reports in 2007. The father and his mother had both indicated how favourable she was towards him in her reports, and her evidence struck me as an important part of the complexity in this difficult case.
Also during the hearing, the father wanted to call a witness, Ms L. He said she would give evidence that at some point her son had an infection of the penis, requiring circumcision. The father suggested that T had bathed with the other boy, the inference being that T may have caught the infection, which in turn could have explained T’s unusual sexualised behaviour to which I shall return. Not only was it late material, but as it was not predicated on medical expertise, I would not have found it helpful. I did not allow Ms L to be called.
The father also wanted to call Ms O, a psychologist he had been seeing, apparently as a result of a work injury insurance claim, to which I shall return. He had already been permitted to rely on a psychological assessment by Mr H, and there were other psychological assessments before the Court, all more pertinent to the issues at hand.
The father also suggested that Ms O could offer therapy to T and reintroduce him to his father. The Family Report writer, Mr S, made it clear, and I accepted, that she would be an inappropriate person, given that she was not an independent witness but a psychologist already involved with the father. Accordingly, her evidence could not have added sufficiently for this very long case to be drawn out further. I refused his application.
Early in the hearing, the father sought to rely upon the relaxation of the rules of evidence under Division 12A of the Family Law Act. I was satisfied that, given the nature and seriousness of the allegations, the complexity of them, and the consequences of potential findings, the circumstances were exceptional and the rules of evidence should be applied (see s 69ZT(3)).
I did however permit some procedural flexibility, again because the seriousness of the allegations and the complexity of the issues and the history led me to conclude that it was fair and appropriate. For example, I allowed the parties to rely on some old affidavit material, although the specific trial directions had not envisaged it. Also, not all the ICL witnesses were on affidavit, but if they were not, I did what could be done to ensure that the other parties had reports or statements, and time available to them before the witnesses were called. Similarly, Ms W, a child-care worker called by the mother was not on affidavit, but the parties had ample notice of what she would say. And, as set out above, I allowed Dr G and Ms W to be called late in the piece.
For completeness, I note that early in the case, I granted a certificate under s 128(5) of the Evidence Act 1995 (Cth), to cover the father’s evidence, as the material anticipated that much of the questioning of him would relate to the sexual abuse allegations.
I also note that the hearing was dogged by illness. Time was lost when the mother was unable to go ahead with her evidence due to a migraine. Further time was lost when the father went to hospital by ambulance, suffering anxiety. Later, on the last day of the hearing, when the father was due to make his submissions, he did not attend. He sent a message to say he was unwell. There was no medical or other evidence to support that. I made directions for the mother’s counsel to finish his submissions in writing and submit them to the father, and then for the father to provide proof of his incapacity to attend court that day, and to make written submissions. Although in the absence of any evidence of a genuine inability to come to Court I could have simply finished the case, I wanted to ensure that the father had the opportunity to make submissions.
Counsel for the mother filed his written submissions. The father did not. Nor did he file a certificate to support his failure to attend Court.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
“(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).”
In deciding a particular parenting order, the best interests of the child are the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I shall return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and if not, then whether he should spend substantial and significant time with each of them (s 65DAA (2)(c)). In either instance, the Court must be satisfied of the reasonable practicability of orders.
A central issue in this case is the allegation of sexual abuse. The correct approach in considering such allegations was considered in M and M (1988) FLC 91-979. The High Court made it clear that when the proceedings involve an allegation that a child has been sexually abused by a parent, it does not alter the paramount and ultimate issue for the court, of the child’s best interests, although the findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact on the resolution of that issue.
As to the standard of proof, the High Court said that in considering an allegation of sexual abuse:
…the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw and Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J said: ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

The High Court considered (at page 77,081) that there would be very many cases in which a judge could not make a positive finding that sexual abuse had actually taken place. However, that would by no means end a court’s assessment in relation to the welfare of the child. The court must still determine:
… whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk...the existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court went on to consider efforts to define with greater precision the magnitude of the risk which would justify a court in denying a parent access to a child and concluded that the test was 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.
The difficulties associated with determining an “unacceptable risk” were analysed in detail by Fogarty J in his dissenting judgment in N and S and the Separate Representative (1996) FLC 92-655. His Honour considered a number of cases in which efforts had been made to define “an unacceptable risk” and said it would depend on a great many factors. It did not however convey that a “genuine risk” is ever capable of being “acceptable”.
Fogarty J considered appropriate questions as follows:
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as:
What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
His Honour emphasised that these were not a “catalogue of the correct questions” but:
….a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown.
That dissenting judgment of FogartyJ has been referred to approvingly in subsequent judgments.
In a more recent case of Johnson & Page (2007) FLC 93-344, the Full Court agreed with a seven-point summary of the principles emerging from M and M, set out in a paper entitled “Unacceptable Risk – A Return to Basics”, written by the Honourable John Fogarty AM, as follows (at para 68):
1.The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2.The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.the circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
As to point 7, the Full Court noted (at para 71):
…We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof…
The Full Court also made it clear that when it comes to the standard of proof, rather than referring to “the Briginshaw test”, it is now more appropriate to refer to s 140 of the Evidence Act, which sets out that in a civil case, the balance of probabilities is the test to be applied. Under s 140(2), without limiting the matters that the Court may take into account, it is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged.

THE ISSUES

The issues in this case can best be determined under the umbrella of the considerations in s 60CC of the Act.
I shall first consider the two primary considerations under s 60CC (2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
After the 2006 hearing I noted that each parent said they believed T needed to maintain a meaningful relationship with the other parent. I found that he did have that need, but that each parent’s capacity to promote it was “unclear”.
Since then, T has continued to live with his mother and all the evidence shows a close and meaningful relationship with her. The father has not suggested that T should be removed from his mother, only that he should live half-time in each household.
The significant question is as to whether the meaningful relationship that T did have with his father – severely interrupted since the start of 2007 – should be resumed. It is impossible to answer that question without a full consideration of the allegations of abuse.

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

Background

This was a very long hearing of 14 days (3 to 4 days of which were lost to illness). The length of the hearing related primarily to the volume of material going back a number of years, and detailed cross-examination of numerous witnesses, mainly on the issue of the sexual abuse allegations.
The sexual abuse issue needed to be aired in full. Although in 2005 the mother had raised concerns that in his father’s care T had been exposed to some form of sexual abuse, after a DHS investigation failed to substantiate it, she did not pursue the issue before me in 2006 save to express the concern that in his father’s home T had viewed pornography.
Subsequently, although orders were made for a supervision order in the Children’s Court in 2007 and 2008, the Children’s Court proceeded on the basis of emotional abuse, and did not hear to conclusion the outstanding issue as to sexual abuse that had arisen in late January 2007. It is important now to consider the sexual abuse issue. It is interwoven with all the relevant issues. The parties need the determination, and it is integral to T’s best interests.

Disclosures

The following are the major parts of the chronology of T’s purported disclosures.
In my Reasons for Judgment in July 2006 I noted (at para 26):
…The mother and her family claimed that in January/February 2005 [T] displayed sexualised behaviour, for example playing with his toy dinosaurs and trying to line them up on his penis, putting a stick in his bottom, trying to put dirt in his bottom, and frequently masturbating. The mother said that when she asked [T] about it, he said “Daddy does it”.
I also noted that the mother and her family observed aggressive behaviour in the child.
The father was adamant that he had never observed any sexualised or aggressive behaviour on T’s part. He denied any cause in his home, and was sceptical that the mother and her family had genuinely observed such behaviours.
The mother was clear in her evidence during that hearing, that she did not believe the father had sexually assaulted T, but was concerned that he had exposed the child to pornographic material.
I noted the father’s responses in cross-examination about pornography as “unimpressive”. I observed (at para 30) that:
When counsel for the mother put to him that after separation [the mother] had found five tapes he had made of the couple engaged in sexual relations, [the father] challenged the cross-examiner with an answer to the effect “Well, where are the tapes?” When counsel for the mother produced one, [the father] responded rather weakly “That is not five,” and then agreed that he had taped sexual activity with the mother…
I found that although those answers reflected poorly on the father’s truthfulness, the evidence could not lead me to conclude that in his care T was exposed to pornographic material. I was satisfied however that the mother, her parents, and husband did make the observations they had described. I found their evidence “quite straightforward” without “any embellishment or hyperbole”. But I could not make a definitive finding about the cause of T’s behaviour. I noted that by the time of that hearing, his sexualised behaviour had ceased.
Between July 2006 and the last week of January 2007, T was in a regime, living with his father five nights’ per fortnight, the balance with his mother. That came to an end on 31 January 2007, after T returned from time with his father.
The evidence of Mr and Mrs Jamieson was that T had come home that day with a “red bottom”, and was “playing weirdly” with his toys, “trying to stick them up his bottom”. Based on previous advice from DHS, they knew that DHS required evidence, and so they decided to video T’s odd behaviour. They said they filmed in the course of that afternoon, and produced a 12-minute video.
The video, played in court, showed T playing with his penis and various objects. Two expert psychologists, Dr K (who had written earlier reports for the Children’s Court), and Mr S (the Family Report writer in this case), were shown the video. Between them, they described T’s behaviour as “extremely unusual”, “extremely abnormal”, “disturbed”, “significantly disturbed” and “highly sexualised”.
I shall return to the expert evidence but note here that T was filmed, for example, clamping the mouth of a toy dinosaur around his penis, trying to push his erect penis through a belt buckle, trying to insert a toy dinosaur tail into the opening of his penis, clamping a hairpin onto his penis, pulling his foreskin back, and feeling around his anus.
Mr S gave his own written summary (Ex. ICL 7) of the video (he had a DVD version) as follows:
Subject [T] focused on manipulating his penis using various instruments to compress the foreskin such a bobby pin and a clamp like object that was clamping the whole foreskin externally and on one occasion the foreskin as well the head of the penis. On more than one occasion leaving the clamp pin in place.
At other times the subject appeared to be inserting narrow objects into the opening of the erethra [sic] up to approximately .25 - .5 of a cm. The subject also used the spike of a belt buckle in an attempt to do the same.
The subject was also observed to manually manipulate his penis by pulling the foreskin back over the glans (head of the penis). There was also indication of some pelvic thrusting while the subject manipulated his penis.
On one occasion on the DVD the subject was seen as bending over, spreading the cheeks of his bottom and appeared to be fingering his anus.
On one or two occasions the subject was asked what he was doing by the adults present. The subject did not seem overly deterred by this yet it did stop the behaviour.
The mother said that after the video, she asked T what he had been doing. She said he said that “[N] had done it”. (It is common ground that in his mother’s household T called his father by his first name, “N”).
On 6 February 2007, there was a police SOCA Unit interview with T (Exhibit F6). T made no disclosures.
DHS arranged for T to have counselling with Ms A, a social worker at the Centre Against Sexual Assault (CASA). Ms A first interviewed the mother.
In her report dated 3 May 2007, Ms A recorded the mother’s concerns about T when he returned from his father, as follows:
1.[T] had a red anus and told his mother he had a “sore bum”.
2.[T’s] toenails had been painted pink. He told his mother that, “[N] done that to me. He has pink toenails too”.
3.[T] told his mother, “[N] is going to kill you Mummy”. He said [N] had a black gun and pointed to the ceiling to indicate that was where [N] kept his gun.
4.[T] asked his mother to buy girl’s clothes for him.
5.[T] was observed by his mother putting a toy dinosaur into his anus. [T] became anxious when caught and told her “[N] does it to me. It feels good”.
6.He was masturbating in the bath and in other places in the home and in public.
7.He was found attempting to penetrate his younger brother’s anus with his penis while in the bath.
8.He was observed inserting toys and other objects into his own penis.
9.He was observed putting his finger in his anus
10.When asked by his mother why he puts things in his bottom [T] said, “[N] stuck his finger and a toy man up my bum.” “It feels good”.
11.He put a toy dinosaur on his penis and said, “Take a picture”.
12.Showing his younger siblings his penis up close.
13.Licking his baby sister on her face.
14.[T] asked his mother if his uncle could take his auntie “under the sheets and do it up the bum. I promise I won’t watch”.
15.[T] biting himself, scratching himself, gouging himself with a biro and drawing crosses on himself.
16.Urinating and defecating in inappropriate places.
In her first session with T, on 8 March 2007, Ms A asked him if he knew why he was there and he answered “Because [N] did to my bottom”.
In their second session, on 15 March, Ms A introduced T to a “touch survey”, where he was shown a body outline and asked to identify parts of the body. She said he looked very uncomfortable and pushed it away. She reintroduced it later in the session. She reminded T that they had been talking about tickling. He pointed to the tummy region and said that “Mummy tickles me” there. According to Ms A, he pointed to “the anal area”, and when asked “Who tickles you there?” he said very softly “[N]”. She reported that T then said: “[N] tickles me right inside as he pointed to the anus on the picture.”
She reported:
His demeanour looked sad and scared. Asked [T] “Who else tickles you?” He then pointed to the penis. Asked him, “Who tickles you there?” [T] had his head down and said “[N]”. When asked, ‘what does [N] tickle you with?” [T] looked surprised and said, “Nothing”. Asked him if [N] tickles him with his fingers and [T] said “yes”. Asked him what else does [N] tickles him with (to try and ascertain if other body parts were used) but [T] didn’t understand the question so stopped this line of questions. Asked him then to show where else mummy tickles him and he pointed to the ear. When asked where else he said, “Nowhere”. When asked where else [N] tickles him he said, “Nowhere”. When asked who else tickles him, “No-one”. Tried to continue the touch survey with other touches such as kisses and cuddles, but [T] kept saying, “no-one” when asked “who kisses you”? etc.
On 26 April 2007, Ms A noted:
[T] then started talking about someone called [Z]. He said, “He’s from work”. ([Stepfather’s] work?) When asked about [Z] [T] said, “he’s making evil pizzas with beetle bugs and worms”. [T] then talked about [Z] “bringing pizzas for me but I didn’t want them”. When asked what sort of pizzas they were he said, “Evil ones”. As he talked, [T] starting putting the connecta pens on his fingers to resemble claws. He said as he waived them in the air, “I can scare him away’. When asked who can scare away, he said, “Somebody is evil”. When asked who is evil hew didn’t answer. [T] continued with the textas putting them on his fingers. When asked what he was doing, [T] said, “they’re claws. I can scratch him. I’m going to get him away with these”. When asked who, [T] continued, “he was getting me away. He got in my way”. When asked again who, [T] said, “Rice”. When asked if he meant [Z], [T] said, “Rice, Rison, Rayson.” He then started to put the textas onto C/A’s fingers, and said, “we can scare [N] away. We can scratch him. You can do it. I won’t come”. Asked [T], “Are you scared of [N]?” [T] said, “Yes”. When asked to tell me why he’s scared of [N] he said, “You can go and scare [N] away. He might be waiting outside. He might come here.” [T] seemed quite anxious and kept looking under the table. Reassured him [N] wasn’t here.
In her report of 3 May 2007, Ms A reported the concerns arising from the assessment. As to T’s presentation, she noted that in drawing, he would often stab the paper angrily with the pen, and draw crosses over the top of or through whatever he had just drawn. She noted that several times T said he was afraid of N. She reported that when T was asked to give an example of something that made him feel sad, and scared, each time he answered “N”. He spoke of N doing something “bad”. He said he was “afraid that [N] will come to his house and hurt his mother”. He made reference to N “killing” him, and he asked the writer to “scare [N] away” for him.
Otherwise, themes about evil guards, castles, monsters, bugs and worms were common when T talked about the father. He spoke too about himself being “bad”, “evil” and “stupid”.
Ms W, a childcare worker at the child’s crèche, reported that on 18 July 2007, a week or so after he had seen his father for the first time in about six months, when they were brought together by Dr G for the purpose of the Children's Court Clinic report, T had two conversations with her. She recorded the first as follows:
18/07/2007
Conversation with [T]
9.20am
[Ms W] (staff member) approached [T], asking him how he was and what he had been doing while she was away. Did he go anywhere?
[T]- “went to Melbourne with mum” [T] had no eye contact with [Ms W] and used soft, low voice.
[Ms W]- “Wow, what did you do in Melbourne?”
[T]- “I saw [N]” Still no eye contact.
[Ms W] How did you feel about that?”
[T]- “I feel very sad”
[Ms W]- “Did you talk to [N]?”
[T]- “No, I punched him!” gives direct eye contact, uses firm, monotone voice
[Ms W]- “You punched him?”
[T]- “Yep, I punched him” Using a firm voice but no eye contact again.
[Ms W]- “Were you angry?”
[T]- “Yep”
[Ms W]- “We all get angry sometimes and that’s okay”
“Where was mum when you were with [N]?”
[T]- “She was lost. She was lost for a long way.”
[Ms W]- “Was someone else with you when you were with [N]?”
[T]- “Yes, [D] (?)” soft, almost inaudible voice.
[Ms W]- “[D]?”
[T]- “Yep, he was very green and hairy”
[Ms W]- “Are you still angry now?”
[T]- “Yep”
[Ms W]- “Are you happy to be here at crèche?”
[T]- “Yep”
Later that day, she noted:
Wednesday 18^th July
Discussion between [T] and [Ms W] (staff member)
Setting: Rest time, [T] lying on mattress in book corner, [Ms W] sitting beside him, rubbing his back.
[T] suddenly sits up and says to [Ms W], “this is how [N] was talking to me” ([T] closes fists and alternately bangs his fists on the side of his head)
[Ms W] “Oh, that’s interesting, did he say anything while he was doing that”?”
[T], “Yep, he said he didn’t want me”
[Ms W] “that he didn’t want you?”
[T] “Yep, he wanted me to be with my mum and dad”
[Ms W] “Oh, and did he say anything else?”
[T] “No”
[T] laid back down and [Ms W] continued to rub his back.
Then, on 20 July 2007, Miss W noted:
20^th July
Setting: Rest time, [Ms W] (staff member) sits next to [T] to pat his back.
[Ms W] “Righto [T], time to rest now”
[T] sits up and says, “But we must talk first”
[Ms W] “What do we need to talk about?”
[T] “Everybody”
[Ms W] “OK, who shall we talk about first?”
[T] “[N]”
[Ms W] “What do we need to talk about [N]?”
[T] “That we need to kill him”
[Ms W] “Who needs to kill [N]?”
[T] “We do”
[Ms W] “Why do we need to kill [N]?”
[T] “Because he is an evil man”
[Ms W] “Why is he an evil man?”
[T] “Because when I am at my house and asleep I think of [N]”
[Ms W] “Do you mean you dream about him?”
[T] “Yes I have a dream about [N], and he takes my new pussy cat to his house, not at my mum and dads house, that why my mum and dad should kill him”
[Ms W] “OK what else do we need to talk about?”
[T] “Lets talk about here, Kinder”
[Ms W] “OK, what would you like to talk about kinder?”
[T] “[N] comes to this kinder and is going to get me”
[Ms W] “No, [N] hasn’t been to this kinder”
[T] “He came to my old kinder and he took me and my mum didn’t know who I was, and he took me away because he is an evil man”
[Ms W] “Where did he take you?”
[T] “To his house, not my mum and dads house, and he threw me into the ocean and the sharks came to eat me.

Later on 20 July 2007, Ms W noted:
Setting;
3pm. Afternoon tea.
[Ms W] (staff member) noticed [T] was looking upset. [Ms W] approached [t] “Are you alright”
[T] responded “I want my mum”
[Ms W] reassured [T] and he finished his afternoon tea. [Ms W] asked the children to pack away their places and sit on the mat as they were finished. While helping other children, [Ms W] noticed that [T] went and hid behind a mattress that was standing against the wall (room had been packed away for the day).
[Ms W] asked [T] to come out from behind the mattress and asked him what he was doing.
[T] “I want to cut me, here” (pointing to his stomach) “I want to cut myself I want my blood to come out” [T] was holding a pipe cleaner that he had removed part of the outer fluffy covering from, exposing the wire.
[Ms W] put her arm around [T] and said “[T] you know that you are really special to us and we care a lot about you. We would be very sad if you cut yourself and hurt yourself”
After a cuddle, [T] sat on the mat near [Ms W’s] feet. As she proceeded to speak to the group, [T] quietly tried to move back behind the mattress.
[Ms W] said “[T], what are you doing?”
[T] “I really want to cut myself.” [T] was using a firm but soft voice.
[Ms W] asked the group to prepare for outside play and she held [T’s] hand and helped him to get ready.
[Ms W] took [T] by the hand and led him outdoors, asking him to come and sit with her and work together. [Ms W] sat [T] next to her at the drawing table and asked him to draw a picture of how he was feeling. [T] picked up the black crayon from a bowl of assorted colours and began to draw a circle, saying “This is the black one”
He drew short strokes all around the circle, commenting that it was a spider. He was using very firm pressure and jerky, rugged movements, drawing quite fast. [Ms W] asked him to talk about what he was drawing and he said, “it is a spider, with a lot of legs.”
[T] then scribbled over the centre of the ‘spider’, then sighed loudly and drew a large, dark cross over the top, breaking the crayon with the pressure.
[Ms W] asked "what has happened to the spider?”
[T] replied firmly “It is killed. I killed it. It tried to hurt me.
Immediately after that conversation, T soiled his pants. Ms W recorded:
[T] quickly sat up and ran towards the toilet, holding his bottom. [Ms W] followed and he had stopped at the doorway, unsure of how to proceed. [Ms W] helped him towards a toilet and discovered he had released his bowels in his pants. [T] looked very concerned and worried about this so [Ms W] re-assured him that it was ok, and changed him.
Between July and November 2007, T was interviewed several times in relation to the Children’s Court proceedings. Dr G prepared a Children's Court Clinic report on 19 July 2007. When she had spoken to T on 10 July, he made no disclosure. She spoke with him again on 13 November 2007 for the purposes of another report dated 19 November 2007. Again there was no disclosure.
In the meantime, psychologist Dr K had been asked by DHS to produce a psychological evaluation of the parties and T.
T did not make a clear disclosure to Dr K, but Dr K described the information provided by T as “unusual in nature”, noting:
…He very readily moved into speech which reflected fantasy, with symbolic and mythical themes including castles, servants, guards and evil people. This occurred mostly when discussing his father. In particular were a series of statements that he made that represent areas of psychological concern, probably reflecting anxiety and anger, particularly when discussing his father.
and that:
… [T] moved into this symbolic speech without any clear warning, and this occurred at his initial raising of his father’s name. This represents a rather intense psychological reaction to his father, and one that probably represents fear…
Dr K then noted “a flood” of statements made by T when his father’s name arose. He said he spoke clearly in childlike language:
[T]: “[N] is the evil king…he always trumps you…he a grown up…he’s an evil grown up…he hurts people…he hurts my mummy and me… he bumps …he cuts my house down …he killing people … he cuts my doodle off … mum sticky tapes it … he cuts it with a knife …. only a little bit … in the toilet, he washes it down .…he always kills and eats…he always kills my doodle …. He kills and throws it in the bin… I cut his doodle off because he’s evil … he hurts me …he hurts me with his mouth …. He puts his mouth on my doodle and he eats it … I cut his doodle off with a pencil … my mouth goes on his doodle …. He always cuts my doodle…I see his doodle when he takes me away to his house.
When asked whether anyone else touches his doodle, he said: “no”, including [Mr Jamieson].
It was not possible to have [T] clarify his statements in the majority of the interview.
Dr K also reported that:
[T] clarified that he does not have a good time at [the father’s]. When he asked directly does he like [the father], he stated: “no, because he hurts me”. He was not able to clarify how he was hurt. [T] then moved into drawing and angry in quite a destructive way, smashing pens down and breaking the tips. He stated: “he hurts me on my hand … he smacks it so it hurts”.” (note – this was repeated many times in the interview – that [N] hurts him)
When there was a small break, in order to check whether or not his mother was in the waiting room, [T] stated: “Maybe [N] got my mum”. He went on to say: “when I see [N] at his house, he hurts me … he hurts my nose all day”.
There was then quite disjointed and unintelligible conversation. [T] stated: “bottoms … it has sticky tape… [N] couldn’t cut it off… doodle…it gets hard at home… because [N] hurts it…he cuts it off.” At this point again he pounded a drawing with a texta, destroying the top of the texta. When asked about whether he could say anything else about anything, [T] stated: “his guard’s hurt…no-one hurts me at home.” He then went onto say: “If I’m naughty, police will cut the skin off my finger”.
“I don’t touch his doodle … [N] doesn’t touch mine”. “Mum doesn’t touch it, only [T]”.
Dr K made a “particular note” of a “significant change” in T when the topic of his father came up:
…His mood altered dramatically. At various points in discussing his relationship with his father, [T] appeared to become quite anxious and disorganised and, soon after, would find toys and act-out quite intense and apparently aggressive play.
Dr K noted that T did not exhibit fear or disorganisation when discussing other people, such as his mother or Mr Jamieson.
Dr K concluded there was “a high likelihood” that some form of sexual abuse of T had occurred, “probably while in the father’s care.”
T made a further disclosure in August 2008. This time it purported to be against his step-father, Mr Jamieson. It arose in the following context.
On 19 August 2008, during DHS supervised contact, the father noticed red marks on T’s neck and throat. According to the father’s affidavit, T said that Mr Jamieson had grabbed him by the back of his jumper. In evidence, he spoke of T being “choked” by his step-father. In any event, when DHS interviewed T at school the following day, he indicated that Mr Jamieson had grabbed him from behind and dragged him when he was fighting with his little brother J. According to the DHS report, in the course of the interview, T made comments “suggestive of genital touching and tickling by Mr [Jamieson]”.
T was removed from his home by DHS, and placed in foster-care for several weeks.
On 22 August 2008, almost immediately after the disclosure, the father filed and served an Application to Revoke the Supervision Order in the Children’s Court. DHS arranged a paediatric assessment of T. In the meantime, there was a police SOCA Unit interview. T made no disclosure. According to the DHS report (Ex. ICL 6), the nature of the events leading to the marks on his neck were:
…suggestive of interactions with [T’s] brother [J] and step-father Mr [Jamieson] that were rough and tumble in nature, thus no inappropriate physical activity.
DHS requested Dr K to prepare a further psychological evaluation, this time of Mr and Mrs Jamieson and T.
T made no disclosure to Dr K about any sexual abuse by Mr Jamieson. Dr K said that direct questioning also suggested there was no genital touching. T spoke very positively about Mr Jamieson. When asked about the bruising on his neck, he indicated that J had pulled his top backwards during a rough and tumble game between him, Mr Jamieson, and J.
Dr K said he employed a number of means to test T’s statements and concluded that he was a boy “highly susceptible to symbolic and fantasy talk”, was very “responsive to adults”, and that the specialist interviewing techniques showed that he “probably provided information that he felt the adults wished to hear”.
Dr K’s view was that it was “extremely unlikely” that T had been involved in any sexualised activity with his step-father or physically abused by him. He concluded there was no evidence of risk to T whilst in the care of his mother and step-father, but was concerned that there was a probability that T was continuing to react negatively to on-going contact with his father.
On 5 January 2009 there was another CASA report. Ms A reported that T indicated feeling “safe and happy” with each family member except his father. She reported that T indicated that “he feels safe when he sees [N] but not safe when [N] hugs him or tickles him.”
On 14 October 2009 Mr S released the Family Report.
When T was interviewed by Mr S, he spoke positively of Mr Jamieson, and of his mother whom he said “took really good care of him”.
Mr S reported that when he asked him directly about his father:
…[T] then began to choose to play with the toys available in the room and became progressively closed off to conversing…
When Mr S asked T how it was seeing his father, T said:
I don’t look forward to seeing him because I got nervous and poo my pants.
Mr S reported that:
From this point on in the interview [N] [sic] became rather distant and began to play in a solitary manner. He did manage to say that “[N] tells me to keep secrets from Mummy but I just tell her stuff’. He denied feeling scared of ‘[N]’ and indicated that some of their games together during the visits were fun.

Analysing the Disclosures

When it comes to the enormously difficult task of analysing a four year old’s purported disclosures of sexual abuse, the opposing parties are often attracted to a simple dichotomy of “If the child said it, then it happened”, versus “He was coached by the other parent to say it”. The evidence in this case, combined with many years of experience in this Court, persuades me that the analysis is necessarily more complex. There are factors that point towards some form of sexual abuse as alleged, and factors that point to the contrary.
The most salient factors pointing towards the probability that the father sexually abused T or exposed him to inappropriate sexual behaviour, include that T’s behaviour, filmed upon his return from his father, was according to the experts, “highly indicative of a child who had been sexually abused”. The father gave an account of T complaining about a sore penis, to explain his sexualised behaviour, but that account was only proffered very late in the piece and was unimpressive. According to all the experts, the mother did not show the features of a parent deliberately alienating the child from his father. And Dr K gave evidence as to the probability of the father being the perpetrator of sexual abuse of the child, based on a range of observations and factors.
On the other hand, T’s purported disclosures were reported by Mr and Mrs Jamieson, who were very badly disposed towards the father. T made no direct disclosures to DHS, the police, Dr G, Dr K, or Mr S. He appeared to make disclosures to the CASA worker, but there were serious limitations in her approach. She had a preconceived view against the alleged perpetrator. She did not see T with his father. Nor did Dr K. Mr S did, but his observations of T’s behaviour in his father’s presence were at odds with the positive observations of Dr G and the S Contact Centre.
All these factors will be amongst those considered in detail. In the midst of this conundrum, it is important first to focus on T’s behaviour.

T’s Sexualised Behaviour

The video, and the expert evidence of Dr K and Mr S about it, persuade me of T’s disturbed and sexualised behaviour, and the high probability that he had been exposed to sexual abuse.
For reasons that were not clear, neither expert had previously seen the video, but both were shown it before they gave evidence.
In giving his professional opinion about it, Mr S noted that although T’s behaviour would be at least moderately painful in such a sensitive area, he did not seem to be distressed by that. His behaviour was “repetitive, driven and with a focus on the genitalia.” Mr S said the behaviour went “beyond normal expected experimentation”, and was unlike what would fall within the bounds of normal childhood masturbation. The behaviour was “unlikely to be pleasurable and more likely to be acting out past experience.”
He concluded his notes as follows:
I therefore believe that a majority of the behaviour on display in this DVD is beyond the bounds of normal sexual explorative play and qualifies as significantly disturbed behaviour of a strong sexual nature suggestive of a past experience of exposure to sexual interactions of an abusive nature.
In his evidence, Mr S again emphasised the disturbed nature of T’s behaviour. He said that it not only fell well outside the norm of childhood behaviour, but that it also went well beyond the sort of behaviour that could be reflective of a child’s anxiety. It was “highly sexualised” and “highly indicative of a child who had been sexually abused.”
Dr K described T’s behaviour on the video as “extremely abnormal”, “disturbed”, and “sexualised”. He noted that T appeared to be somewhat disassociated – “in a world of his own”. He said it was different from what would be regarded as within the normal bounds of childhood masturbation. He said he had never seen anything in the literature involving a boy “sticking things in his penis”, and it was “extremely unusual because of the particularly painful elements to what he was doing”.
In Dr K’s opinion, it was “extremely unusual” that T continued in the presence of his mother and Mr Jamieson, even when they told him to stop. He said it showed “obsessionality”, and represented a great level of disturbance or anxiety around that issue. He said he was “struck by how disturbed the behaviour was.”
Unfortunately Dr G had not seen the video, and she was located somewhere where she was unable to have access to it. Mr S’s summary of it was read to her. She said she had made clear in her report that there was a lot of sexualised behaviour on T’s part, but it was the cause that was unclear. She said with a young child one would expect that “pelvic thrusting” was something that he had watched or seen. As she was certain of emotional abuse, her report was written from that perspective. She had emphasised though in her report that the sexual abuse allegation still needed further investigation.
The expert evidence satisfies me that T’s disturbed behaviour, shown in the video, was highly suggestive that he had been sexually abused. It was clear that his behaviour was not something that was likely to have been arrived at without exposure to such behaviours. That said, the video in itself did not disclose a perpetrator.
It is convenient to note here that the father called his girlfriend at the time, Ms Y, effectively to say he had no opportunity to sexually interfere with the child in the holiday time leading up to his return to his mother on 31 January 2007. There was no reason to find that Ms Y was deliberately lying when she said she was with them at all times during the camping trip. I note however that her affidavit, sworn on 26 February 2007, made no reference to that. Somehow, years later she was able to recall their precise movements. I note too she was still a teenager at the time, in the very early throes of a relationship with the father. There was simply no reason for vigilance on her part, such that she would have accompanied them every minute, even if for example the father took the child to the toilet. The evidence does not satisfy me that T and his father were always within Ms Y’s range of vision.

T’s other behaviours

In addition to the sexualised behaviours, the mother had raised concerns about other aspects of T’s behaviour, most particularly that he exhibited anxiety, in particular by “soiling” (encopresis) before and after seeing his father. She said that it settled in the course of this year after he stopped seeing his father. She conceded that she had also tried some medical treatment that was quite successful in helping him stop. Nevertheless, she saw the direct connection with anxiety surrounding time with his father, because it recurred on two occasions this year, each time associated with upcoming court proceedings.
It was her evidence that when she came to Melbourne for proceedings in March 2010, T again soiled himself, and again when he saw her taking out the suitcase that she uses to come to Melbourne for court, when this last part of the hearing was starting. Mr Jamieson added in his evidence that T had soiled during the time of the hearing, whilst in the care of extended family in regional Victoria.
The father said he had never seen any signs of anxiety, and T had never shown that, or soiled himself, in his presence. He was disbelieving that it had been an ongoing problem, or that it was in any way connected with anxiety about spending time with him, or in the event that it was, it was reflective of the mother’s anxiety and efforts to alienate T from him.
The experts regarded the mother as truthful. I agree. Moreover, the evidence of T’s pre-school teacher, Ms W, as to the conversation with T on 20 July 2007 (referred to above), supported the mother’s account of T’s encopresis. She reported that immediately after the conversation, when T spoke in an anxious way about his father, he rushed to the toilet, but soiled himself on the way.
I note too that talking to Mr S, T himself referred to getting nervous when seeing his father, and as he put it, “I…poo my pants.”

Coaching and/or “parental alienation” by the mother

The father was suspicious of the genesis of the video. He cross-examined Mr and Mrs Jamieson, and the experts, suggesting that the Jamiesons had coached the child, in order to produce it. He also questioned the integrity of the video, in that at times it stopped and started.
He asserted that on 31 January 2007, the mother was specifically motivated to raise the sexual abuse allegation against him because she knew he was complaining that at the preceding handover she had permitted T to be handed over barefoot, wearing only a T-shirt. That is, she fabricated the sexual abuse allegation to deflect criticism away from herself. The mother denied handing the child over in other than appropriate clothing. I cannot make any definitive finding about that handover, but in any event it seems like a tenuous link. Still, the video needs to be considered in context.
The dislike between the parents – reflected upon in my previous reasons for judgment, and to which I shall return – is important background. But the evidence did not sustain a finding that the mother or Mr Jamieson had coached T into the behaviour shown on the video. The expert evidence of Dr K and Mr S was clear about that.
Dr K said there was “no sense of [T’s] statements being ‘adult’ in nature” and he concluded that:
[T] did not present as a child who has been coached. His language did not reflect the type of language used by children when they are coached. In my opinion, the behaviour displayed in the interview was typical of children who have been exposed to some form of abuse.

I certify that the preceding three hundred and seven (307) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 8 October 2010

Associate:

Date:

[2010] FamCA 902

8 OCTOBER 2010

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