Jarvis and Beaumont

FAMILY COURT OF AUSTRALIA

JARVIS & BEAUMONT

[2017] FamCA 20

FAMILY LAW – CHILDREN – Magellan – Best interests – Whether the child has been sexually abused by her father – where the allegations of sexual abuse have been ‘substantiated’ by child protection authorities – where evidence of the child displays sexualised behaviour – whether the father presents an unacceptable risk to the child in his unsupervised care.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA and 60CC

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Jarvis

RESPONDENT:

Mr Beaumont

INDEPENDENT CHILDREN’S LAWYER:

Susan Nanlohy

FILE NUMBER:

LEC

246

2013

DATE DELIVERED:

20 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

27, 28, 31 August & 1 September 2015 and 18, 19 & 20 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Priestley SC

SOLICITOR FOR THE APPLICANT:

Crane Paskins Law

COUNSEL FOR THE RESPONDENT:

Ms Smales

SOLICITOR FOR THE RESPONDENT:

Salvos Legal Humanitarian

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke

Legal Aid New South Wales

Orders

That all existing parenting orders and parenting agreements are discharged.
That the mother shall have sole parental responsibility for the child, A born … 2009, (“the child”) including for all decisions in relation to the “major long-term issues” (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) in the child’s life and, for the sake of clarity, this sole parental responsibility shall entitle the mother to obtain a passport for the child without the requirement for the written consent of the father.
That the child shall live with the mother.
That the mother and father shall keep each other informed of their respective residential and postal addresses and each shall advise the other of any change thereto as soon as practicable after such change occurs.
That the mother shall inform the father in writing, at least once each year, of the child’s educational and social progress and of the details of any cultural, sporting or other extra-curricular activities the child has been engaged in since she last so informed him.
That the mother shall inform the father in writing of any significant injury or illness the child suffers as soon as practicable after the event, including with details of the treatment she received, her recovery and the medical prognosis provided by the treating medical professionals.
That conditional upon the filing in the Court of an Undertaking signed by Ms J (a sealed copy of which is to be served on the mother) in the following form:
I undertake to the Court that I will supervise all of the time that the child, [A], born … 2009, spends with the father, [Mr Beaumont], pursuant to the parenting Order of the Family Court of Australia of 20 January, 2017, knowing that the Court has found that it is more likely than not that the child has been sexually abused by the father and that she would face an unacceptable risk of sexual abuse by him if she spends any time in his unsupervised care and understanding my responsibility, as the supervisor of her time with him, to protect the child from harm.
In discharging my supervisory duties, I will ensure that the child does not spend any time with the father without me being within 5 metres distance of her at all times and I will immediately remove the child from the father’s care and make immediate arrangements for her to be returned to her mother’s care if I am unable to maintain such supervision for any reason or if I observe the father to be acting inappropriately to the child, including by speaking with her or within her hearing about any aspect of these Court proceedings or in a derogatory manner about her mother.
I will not speak with the child, or the father or any third person whilst within the hearing of the child, about any aspect of these Court proceedings or in a derogatory manner about the child’s mother.
I will immediately notify the mother in writing if I am no longer willing or able to supervise the child’s time with the father pursuant to the parenting Order of the Family Court of Australia of 20 January, 2017. Otherwise, I understand that my obligations pursuant to this Undertaking will continue until the Court, by order, releases me from this Undertaking.
the child shall spend time with the father, supervised by Ms J, for up to five (5) hours at a time on one Sunday each four calendar months, such time to be from 10:00 am to 3:00 pm on the last Sundays in February, June and October, unless otherwise agreed between the mother and the father in writing.
That the child’s time with the father, supervised by Ms J, may take place at the home of the father and Ms J or some other location of their choice.
That to facilitate the child’s time with the father as provided for in paragraph (7) hereof, the mother shall deliver the child to the father and/or Ms J at an agreed public place at the commencement of the supervised time and the father and/or Ms J shall return the child to the mother at an agreed public place at the conclusion of the supervised time.
That the father shall be entitled to send cards, letters, gifts and photographs to the child at his election at other times than when she is spending time with him, with the mother being entitled to determine if they are suitable to pass on to the child. If the mother determines that any such item is not suitable to pass on to the child she shall return it to the father with an explanation in writing as to why she did not consider it suitable to be passed on to the child.
That if Ms J is not willing or able to supervise the time the child spends with the father pursuant to this parenting Order, the child shall only spend time with the father as provided for in paragraph (7) hereof if the mother and the father agree in writing on the identity of another supervisor who is willing and able to supervise that time as provided and if that is a commercial provider of supervision or a centre that charges a fee for its service, the father shall pay for any such cost.
That the father shall not attempt to communicate with or see the child other than in accordance with this parenting Order.
That the mother shall be entitled to take the child to receive such counselling as she may consider appropriate from time to time but she shall otherwise not discuss any aspect of these proceedings, including their outcome, with the child.
That the mother shall take the child to see Ms B, Family Consultant, at the Lismore Registry of the Federal Circuit Court of Australia at a time to be arranged with Ms B before Friday 17 February, 2017 if practicable and Ms B shall tell the child of the outcome of these proceedings and for this purpose a copy of this parenting Order and these Reasons for Judgment shall be made available to Ms B.
That the Independent Children’s Lawyer is discharged.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 246 of 2013

Ms Jarvis

Applicant

And

Mr Beaumont

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

A Beaumont (“the child”) is nearly 8 years old, born in 2009. Her young parents were living together as a couple when she was born. They separated, after about four years together, not long before their baby girl’s first birthday, due to irreconcilable differences in their relationship. The child has lived with her mother ever since their separation.
After some immediate post-separation difficulties of several months duration, the child’s parents managed to co-parent the child in a reasonably co-operative and mutually respectful manner through until late 2012 and into early 2013. Indeed they had established a parenting plan in 2011 by which they regulated the time that the child would spend with her father. They got on well enough for there to be some flexibility around their agreed parenting arrangements. Unfortunately, that did not last long. Evidence in the form of printouts of their telephone text message communications reflects a deteriorating co-parenting relationship in the second half of 2012 and the first half of 2013.
From March 2013, over a period of several weeks, matters occurred that led to the mother withholding the child from her father and commencing proceedings for parenting orders in the Courts. The child has not spent anything other than supervised time with her father since those proceedings were commenced.
First transferred from the Local Court in a northern New South Wales country town to the Federal Circuit Court on its Lismore circuit, the matter was eventually transferred to this Court and entered into the Magellan List. It was before me in late August-early September 2015, but adjourned part-heard at the end of the four days of hearing to be concluded over three more days in late January last year.
Before the Court can make such parenting orders as it considers proper in this matter, the central issue for determination is whether or not the child faces an unacceptable risk of being sexually abused or suffering emotional harm in the father’s unsupervised care. That becomes the central issue as a result of the case presented by the mother, who believes that the father did sexually abuse their child at some time prior to April 2013. Consequently, she seeks sole parental responsibility for the child and an order that the child not spend any time at all with the father.
The father denies that he did sexually abuse the child. He is now in a new relationship and his partner professes her strong belief in his denials as well as a willingness to help him parent the child if the Court determines that the little girl should be spending some time with him. The father seeks a parenting order that would have him sharing parental responsibility for the child with the mother, as well as the child living with them on a week about equal time basis.
This judgment has been reserved since the trial concluded in January last year. It is regrettable that it has taken this long to determine the matter and to deliver my decision. I appreciate that taking this long would have caused all the persons involved in the case, particularly the parents, some concern and distress. I attribute this length of time to the responsibility I have had to hear and determine so many other equally complex matters in the meantime. I have re-read and considered all of the evidence adduced in the matter again in that time before reaching my decision.
At the trial, the Court was assisted by an Independent Children’s Lawyer and the solicitor advocate she instructed to appear on her behalf, as well as Senior Counsel instructed by solicitors for the mother and counsel instructed by solicitors for the father. Three family reports prepared over the years by a Family Consultant in the employ of the Court’s Child Disputes Services were also adduced into evidence. Much other evidence from the New South Wales Police Force, the New South Wales Department of Families and Community Services (“FACS”), the child care and pre-school centre attended by the child, the school subsequently attended by the child, and the children’s contact centre where the child’s time with the father had been occurring, was also before the Court. In addition, evidence from counsellors who had seen the child over time was also adduced.
The matter had been investigated by the Joint Investigation Response Team (“JIRT”), made up of police detectives, and officers from FACS and the New South Wales Health Department. That investigation included three interviews with the child over a couple of years. Two were video recorded and notes were taken during the third. The recordings and the notes of those interviews are in evidence and I have seen and considered them. The father was not charged with a criminal offence as a consequence of the investigation, although FACS officers determined that the child had probably experienced sexual abuse and considered the complaint to be ‘substantiated’.
Of course, a decision by police not to charge a person alleged to have committed sexual abuse of a child is far from determinative of the parenting dispute that is before this Court. Similarly, a decision of the relevant Government department responsible for child welfare matters that a complaint of sexual abuse against a child is ‘substantiated’ is also not determinative of the matter in this Court.

By what legal principles does the Court deal with the allegations of sexual abuse in this case?

The High Court has determined that parenting orders cases are not about parents enforcing a parental right to have a child live with or spend time with them but rather, that this Court has a duty in such cases to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. The High Court observed that in doing that the Court will:
…give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used in the legislation at the time of the High Court’s judgment in this matter], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[1]
[1]M v M (1988) 166 CLR 69 at page 76.
In that same case, the High Court also relevantly observed that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2] (my emphasis)
[2] At page 76.
The Judges of the High Court said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3]
[3] At page 75.
I observe that the High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting orders as are proper.
Such is the division of work between this Court and the Federal Circuit Court these days, that this Court hears large numbers of parenting cases involving allegations of sexual abuse each year. Yet, in deciding each individual such case, it is always still worth reflecting upon the seriousness of the issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
In my judgment, that statement remains “as poignant and relevant” today as the Full Court of this Court said it was over ten years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
Having said that though, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say (at pp 76-77) the following:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 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.[4]
[4]What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:
s 140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)    Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence; and
(b)      the nature of the subject matter of the proceeding; and
(c)      the gravity of the matters alleged.
(d)
Relevantly, their Honours continued (at page 77) and said:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
…
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 (my emphasis).
This has become known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 who said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities, abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S… do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

At paragraph 105 of that judgment, the Full Court Judges, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
In my judgment then, the proper parenting orders to be made in this case are to be arrived at by considering all of the evidence against the “primary” and “additional” considerations mandated by s 60CC of the Act, with the most attention being paid to the determination of whether the child will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in her father’s care and whether, if there would be such an unacceptable risk, it could be ameliorated by conditions such as supervision being imposed on any time the child spends with her father.
Of course, the statutory pathway set out in Part VII of the Act for determining the proper parenting orders to make must also be followed.

Some Background facts in this case

The mother and father commenced cohabitation in 2006. The father was 22 years old and the mother was 19. Their little girl, A, was born in 2009. She is now nearly eight years old. At the time of the trial the mother was 28 years old and the father was 31.
The mother attributed her separation from the father in January 2010 to differences between them over the lifestyle the father continued to lead after the birth of the child, including his propensity to drink alcohol to excess on a regular basis. She also asserted that he had minimal interest in looking after their child in her infancy.
The father expressed the view that the mother suffered from post-natal depression after the birth of the child. He apparently considers that contributed to the breakdown in their relationship.
As wonderful as the time can be when a newborn baby joins a family, there is also little doubt that the change in dynamics that the arrival of a first born baby can bring to a young family sometimes places great practical and emotional strain on a relationship. For these two young parents, that strain contributed towards the end of their relationship.
Though they had barely accumulated any assets in their few short years together, appropriately and amicably settling their financial relationship added to the strain on their post-separation co-parenting relationship. Nevertheless, they tried to work through their differences and their disagreements and, I am satisfied, the mother apparently tried conscientiously to give their baby girl the chance to have a meaningful relationship with the father.
Disagreements continued to come and go, but in April 2011, the mother and father entered into a “shared parenting agreement”, reached with the assistance of family dispute resolution undertaken at a Family Relationship Centre. That agreement provided for them to share parental responsibility for their child and for her to continue to live with the mother but to spend time with the father each alternate weekend from around 6:00 pm to 7:00 pm on Friday until 2:00 pm on the Sunday and each Thursday from 4:30 pm to 7:30 pm.

The emergence of the mother’s concerns that the father had sexually abused the child and the disclosures as they came from the child

The evidence reflects the mother first expressing concern to the father about the child’s behaviour after the child had spent time with the father in early November 2012. In a text message to the father she tells him of this. She says the child “has been wetting herself a bit and just mucking up”. The mother also told the father that the child “has had a sore vagina too” and simply asked him to make sure she “washes herself properly”. There is no evidence that the mother had any thoughts at that time that anything inappropriate was happening to the child.
The same text message records reflect, at around the same time, the mother becoming angrier and angrier with the father’s failure to make monthly repayments on a loan that had been taken out during their relationship in the mother’s sole name, principally for refinancing debt of the father’s that he had before their relationship. The mother’s text messages refer to her receiving letters of demand for repayment from the bank and show her demanding the father to take care of the matter. This issue is of relevance as the father asserts that the mother’s allegations of sexual abuse against him, that first emerged a few months later, are a product of her anger with him over this issue.
However, despite the mother’s increasing concerns about the issue of the unpaid loan and some concerns held about the father drinking too much when the child was in his care, at the start of the 2013 school year, when the father asked if he could start having the child overnight on Wednesday nights as well as each alternate weekend, the mother immediately agreed to his request. Then, a few days later, she informed the father that the child (who she was trying to toilet train at night time) had wet the bed every night since she had come back from spending time with her father and had also wet herself at school the day before. The mother also mentioned that the child had woken with bad dreams the night before. The evidence reflects the mother said to the father, via text message, “something is going on with her so please make sure u stick to strict routine with her as it helps”.
A few weeks later, the mother asked the father for some financial support as she had no money and needed to buy a new car seat for the child. The father told her he had no money either and that he could not assist her.
On 1 March, 2013, the mother took the child to her doctor for a check-up. The mother is recorded in the doctor’s notes as having spoken to the doctor about the child’s separation anxiety at pre-school and her bed wetting. The doctor’s notes record that a referral to the local Community Health service was provided. A text message sent from the father to the mother that night reflects that the mother must have talked to the father about the possibility of the child seeing a psychologist. The father told the mother he thought that would be a good idea and asked the mother to “keep [him] in the loop”.
Around this same time, the mother and others on her behalf also wrote letters of demand to the father about the loan repayments that he had stopped making. This issue was adding to the strain on their co-parenting relationship at this time.
The mother’s evidence is that the child, around this time, was displaying quite severe separation anxiety when dropped to school each morning and was wetting her pants there on some days. The mother recorded that one of those days was a day after the child had spent the night at the father’s place.
The mother took the child to the doctor again on 15 March, 2013 and again raised with the doctor the child’s separation anxiety, her bed wetting, and some other behavioural difficulties including difficulties the child was having paying attention during conversation. The doctor referred the mother and child to a child psychologist.
In the mother’s evidence, she said that when the child returned to her from the weekend at her father’s place on Sunday evening 24 March, 2013, the child complained to her of having a sore, itchy vagina. The mother said that the child’s vagina was red and that she applied nappy cream to it.
The mother’s evidence is that on Monday 25 March, when the mother picked the child up from her pre-school, she was lying on the floor by herself in the classroom she had spent the day in. Later that day, the child complained again of having a sore vagina. The mother said the child’s genitals were “red, swollen and irritated”. She applied cream again. She said the child had a “restless night” that night. On Wednesday 27 March, the mother took the child to her doctor again because of the complaints about the sore vagina and her recent daytime enuresis. The doctor’s notes record the mother telling the doctor that the child’s painful genitalia had been worse after coming from the father’s place on the weekend. The doctor gave advice on avoiding soap or other products for a week and then to use a non-soap alternative and to ensure that the father does too.
The mother said that she then took the child away for the Easter weekend and kept her away from her father’s place on the Wednesday directly after that Easter weekend as the child was “overtired” from the holiday. The mother said that the child’s “demeanour improved” whilst they were away, with her displaying less anxiety, wetting the bed less and experiencing “no more redness or itchiness around her vaginal area”.
The child then went to spend the weekend with her father again on Friday, 5 April and when the mother picked her up at the end of that weekend she said she observed the child to refuse to say goodbye to her father and to bury her head in the mother’s neck as she was asking her to say goodbye to the father. She said the child was screaming “no” and pushing the father away. The mother said that whilst waiting for dinner that night she sat with the child to help her write her name. The child started to throw pens and paper and a chair across the room. The mother said that the child started scribbling with frustration and, after the mother suggested that she could perhaps draw a picture instead, the child drew a picture of her mother and her father. The mother said that the picture the child drew of her father included a penis. The pictures were adduced into evidence. Relative to the entire picture, what is clearly represented to be the father’s penis is very prominent.
The young woman who was the mother’s housemate at the time gave evidence at the trial and said that the mother had showed her the drawing that the child had done at the time and said that the mother was “quite shocked” about it.
The mother said that on the next day, 8 April, 2013, the child drew the same picture with glue on a piece of paper. The mother’s evidence is that after the child completed the drawing, she held it up to the mother’s face and said “This is a picture of you mummy and this is daddy, and that’s daddy’s penis. Lick daddy’s penis mummy”. The mother said she responded to her daughter “Why are you saying that? Who taught you that?” The mother said the child responded “Daddy. He said a swear word and then said “lick my penis””.
The mother’s then housemate confirmed that the mother had shown her this drawing too and had told her that the child had said “This is daddy and his penis. Lick it mummy.”
By this point in time, the mother was clearly starting to have some concerns about what be happening between the father and the child.
That same afternoon, 8 April, 2013, the mother texted the father and told him that she did not think Wednesday nights were working for the child and suggested they just go back to the “original plan” for a while. They then had a disagreement via text, with the father saying “I need to see [the child] more often” and then the mother saying “as of this week Wednesday nights wont be happening from now on”.
This unilateral decision clearly troubled the father and he texted his views about that and said that he wanted to organise another meeting to try to reach another parenting agreement.
In her evidence, the mother said that on Tuesday, 9 April, the child was complaining of a sore vagina again. The mother said that before the child had a shower that day, the mother found her in the mother’s bedroom opening her legs in front of the mirror and looking at her genitals and touching them. The mother said that on entering the room she asked the child what she was doing, to which the child responded “look mummy, it’s a hole, I can poke it”. The mother saw the child poking her vagina with her fingers and then the mother said to her to get ready for a shower and that if she kept touching her vagina like that she would make it sore. She said the child sat on a piece of paper that was on the floor and rubbed her vagina on the paper.
The mother said she rang the FACS helpline after those events and reported what she had seen and heard. The FACS records reflect that the mother called FACS on the Monday evening, 8 April, and reported what she had seen and heard to that point in time. The FACS records reflect two reports on that date. One of them included some information the mother gave FACS about the father’s own childhood history of experiencing sexual abuse as a victim and a perpetrator, something he had told her a little about during their relationship. I will return to this subject later.
The mother also gave evidence that on Wednesday, 10 April, the child was playing with a little girlfriend of hers at the other child’s home. The mother was not there, but the other child’s mother was. Both children were four years old at the time. The other mother gave affidavit evidence in these proceedings. She said that her own daughter started calling out for her in a distressed state and when she went to her and asked her what was wrong, her daughter responded “[A]was trying to put a toy wand up my pop pop”. The other mother said that “pop pop” is what her daughter calls her own vagina. The other mother said that her daughter had screamed at the child to stop but that the child had been persistent and was chasing her. The other mother said that whilst her daughter was telling her this story, the child A became very angry and screamed at the other girl “fucking hell, …, you’re not supposed to say anything”. The other mother said she scolded the child for this and that the child A then burst into tears and went off to the other child’s room to cry. The other mother said that she went in and explained to the child the reason why she had responded the way she had and that the child then settled.
On the morning of the next day, Thursday, 11 April, 2013, the child was interviewed by JIRT officers without her mother being present during the interview. The interview proceeded with little of significance happening until the child told the interviewing officers that she has showers at her father’s place and that her father has a shower with her. When asked if he wears clothes when he does, she said “no, he takes them off.” The child was directly asked then “have you seen your Dad’s penis?” She responded by shaking her head in the negative but then saying quickly “I didn’t touch it. I had a look at it”. She said that she sometimes has a shower with her dad and that sometimes she does not want to have a shower with her dad. When asked how many times she had showered at her dad’s place, the child said four times. When asked why she said four times the child said “because”. When asked could she remember those times, she did not respond. When asked was it at bed time or after they had been to the beach, the child said “after been to the beach”. She was asked was her dad wearing swimmers and she said that he was trying to wash his swimmers. She was asked whether he had his swimmers on or off and she said “on, I mean off”.
She told the interviewers that she saw her dad’s penis when she hopped in the shower but that she did not say anything at that time and her dad had picked her up and cuddled her. She said “cause I love him”. She told the interviewers that there had only been her and her dad at home on the day they had a shower and that she had taken her clothes off when she was getting into the shower. When she was asked how long they had cuddled for she held up two fingers and said “a short time”. She was also asked what her father’s penis looked like, to which she answered “stripes and bruises” and when asked “how big was it?” she held her arms apart and moved them further and further apart. Nothing more of any note was said and the interview was concluded with the child showing the interviewers on a picture of an outline of a male person the correct anatomical location of the penis.
That same afternoon, the mother text messaged the father again and suggested they meet over a coffee the following week without the child with them, so they could have a talk. The father agreed to do that. They arranged to meet on Wednesday, 17 April and they did. It is agreed between them that the mother raised concerns about the child’s behaviour with the father. The mother said that she asked the father about him showering with the child. She said that she told him that the child had become “very focused on the male anatomy, reflected in her drawings after spending time with the father”. The mother said that when she said these things to the father, she observed his body language “to completely change” and that he could not look directly at her. She said that the father said “you are trying to blame me” and initially denied showering with the child, but later conceded that he might have showered with her on one or two occasions when he had first moved to his then current rental accommodation in the small seaside village in which he was then living. He had moved there in late 2012.
At the trial, when cross-examined about that meeting and the conversation, the father initially denied that he had said the words “you are trying to blame me” that the mother attributed to him. When challenged again on the same point, he his denial changed to an assertion of not having a memory of saying that. The mother was not challenged in cross-examination on her account of that conversation. I am satisfied that the father probably did say those words.
The mother said the police had told her, after the JIRT interview with the child, that there was nothing more they could do at that time. The mother said she then attended a service in her area where protective behaviours were discussed and she also attended with the child upon the psychologist her doctor had referred her to. She said that the expense of that attendance was not something she could afford to repeat and the child was then referred to a psychologist at a community health centre.
The mother travelled to Sydney on the weekend of 19 April, 2013 and she asked the father if he could have the child for the Sunday night as well as the Friday and Saturday nights of that weekend which was his scheduled weekend. He agreed. Although she had been worried about what might be happening before then, clearly, she could not have actually believed that the father was sexually abusing the child by that point in time.
The father texted the mother on Saturday morning, 20 April, telling her that he had been sick the night before and warning her that the child might also get sick as a consequence. They had an exchange of text messages about that over the course of that Saturday morning. Their next communication was on Monday, 22 April, at 12:30 pm when the father told the mother by text that the child had only gone to school at 11:40 am that day. He said she had been constipated “this morning” and that she had then moved her bowels “with the help of a surpositary (sic)”.
Apparently worried, the mother asked some questions about this and the father responded with:
She hadn’t done a poo all weekend, she wasn’t eating as much as she usually does & after meals she would complain of a sore tummy, and that was since she got here Friday. She didn’t really want the surpositary (sic) but she was so happy when it worked & it worked in about 10 mins.

In his affidavit evidence relied upon at the trial, on this issue, the father said he had noticed that the child had not moved her bowels throughout that weekend. He said that by the Monday morning the child was very uncomfortable when she was due to go to pre-school. He said that she was sitting on the toilet and trying “to pick her poo out of her bottom with her finger” and saying “it hurts”. The father said that he asked the child to stop and that he changed his work plans and took the child to a pharmacy where he discussed the problem with a chemist and was advised as to the options. He said he was told that oral treatment would take about eight hours but that a suppository could work within thirty minutes. The father said he asked the child for her views and explained to her what he would have to do. He said that the child said she would be alright with it, so he took her home and administered the suppository to her. He said that she moved her bowels about ten minutes later and was pleased with that outcome. He then took her to her pre-school.
That the father had not at least discussed this with the mother, even by text, before he kept the child from pre-school and determined to administer the suppository is noteworthy in my view. Particularly, given his text communications with the mother on the Saturday morning of that same weekend. The father said that he did not expect the mother to have a problem with him using the suppository as they had used them on the child when she was a little baby experiencing difficulties with bowel motions. Medical notes adduced in evidence at least confirm that the child was given enemas as an infant when having such difficulties.
The mother has said that she was quite concerned about the father administering a suppository to the child that day. The mother herself had been very sick in Sydney and returned to northern New South Wales on the Tuesday, still very unwell. So concerned was the mother, she said, that she told the child that it “wasn’t ok” to put medicine in her bottom and that if her father needed to give her medicine again it had to be medicine that she eats or drinks.
She reported the father’s administration of the suppository to the child to FACS as well and she said that some days later, when she and the child were in a particular pharmacy in her town, the child said to her “this is where I went with Daddy to get medicine to put up my bottom”.
The child spent time with the father again over the weekend of 3-5 May, 2013. The mother said that when she collected the child at the end of Sunday 5 May, she asked the child “Did you go to the toilet Ok?” and the child responded “Yes, but daddy keeps putting medicine up my bottom”. The mother said that she asked her “When?” to which the child responded “today”. The mother said the child told her the father had done this in her bedroom.
The mother said she immediately reported this information to FACS and determined that she was not going to let the child go to spend time with the father again.
The mother gave evidence that on 11 May, 2013, she observed more disturbing behaviour on the part of the child. She said that the child’s emotions were very erratic throughout the course of that day on an outing with a friend and her two young children. The mother said that in the car on the way home the child became upset and took her pants and underpants off whilst sitting in the car seat in the back of the car with the two other children present. The mother said she saw what was happening from the front seat and asked the child what she was doing. She said the child’s response was “taking my pants off so the neighbours can see…. So the neighbours can lick my bum.” The mother said that she asked the child not to talk like that.
The mother received a text message from the father in the evening on 12 May, 2013, asking her which psychologist the child was seeing. The mother asked him for a reason why he wanted to know, and he told her that he was interested in the child’s wellbeing. The father repeated his request a little later and the mother again asked him why he needed to know and told him that she could not think of the name at that point in time. Some three days later, the father again asked the mother if she had found the details of the psychologist the child was seeing and she did not respond.
The mother said that a couple of days later, when only she and the child were together in the car driving somewhere, she reminded the child of what she had said and done in the car a few days before on 11 May and asked the child if she could explain her behaviour and comments. The mother’s evidence is that the child said “Because that is what happens at Daddy’s house. The neighbours lick Daddy’s bum and penis.” The mother said she then asked the child “what neighbours? Can you tell me who they are?” She said the child then said “No actually, it wasn’t the neighbours”. The mother said she then said to the child “It’s ok to tell mummy things”. She said she asked the child to tell her more about the licking and who was doing it. The mother reports the child then said “I don’t want to talk anymore. The person that was telling the story has gone to tell another story. They are not here anymore.” The mother said that she then said “[A], why don’t you want to talk?” The child is reported to have said “because it makes me feel yucky.” The mother said that she then said to the child “that’s fine that you don’t want to talk now, but I want you to know, it’s ok even if you feel yucky, you can tell mummy things and you won’t get into any trouble.”
The mother’s evidence is that minutes later the child said to her “I don’t like bad habits mum, licking bums is bad habits.” The mother said she then asked the child “Who told you about bad habits?” and the child responded “you did mum, remember.” The mother asked her then “Can you tell me anything else about these bad habits?” She said the child then said “No, because daddy said people will talk to him about licking bums if I tell”. The mother said that she said to the child “I won’t tell daddy, you can tell me anything and you won’t get into trouble, you just have to tell the truth even if it makes you feel yucky”. The mother reported the child then saying “I don’t want to talk about it again.” The mother then said the child laughed “nervously” and said that she had “made it up” and was “just joking”.
On 14 May, 2013, the mother’s application for parenting orders in which she sought that the child’s time with her father be supervised and a Notice of Risk were filed in the Local Court in the mother’s town. The application was heard and interim orders for supervised time were made before the matter was transferred to the Federal Circuit Court.
On 17 May, 2013, the mother said she heard more troubling things from the child. She was having a conversation with the child in which the child again mentioned her father putting medicine “up her bum”. The mother said that at one point she said to the child “I want you to remember that you can still tell mummy anything”. She said the child then said “I can’t tell you because daddy said it’s a secret. It’s daddy’s secret and I can’t tell you”.
The mother gave evidence that on 19 May, 2013, she was talking with the child and asked her if she knew the difference between a good and a bad secret and gave the child some examples. She said she then referred back to the conversation of 17 May and asked the child if the secret she was asked to keep was a good or a bad secret. She said the child “couldn’t answer” but was keen to draw pictures. The mother looked at the picture the child was drawing and asked her about it. The child then said “That’s someone licking daddy’s bum and penis.” The child pointed at a figure in the drawing and named it as one of the father’s friends. She then said “That is spit or whatever it is on daddy’s penis”. The mother said the child then explained the sleeping arrangements in the father’s home. The mother said the child drew a cross under the figure she had identified as “daddy” and when the mother asked her what the cross meant, the child said “this means to tell daddy to stop”. The child is also reported to have said that the father’s dog “was biting daddy’s penis”. The child is reported to have then drawn a circle where she said her father’s room was in the picture and said to her mother that it was a window for the “neighbours to see”. The mother said she asked her “what neighbours?” to which the child responded “daddy’s boy neighbours”. The drawing was adduced into evidence.
The mother said that she noticed that the child had wet her pants when she finished that drawing and she became upset. The child asked her mother whether she was “going to send daddy that picture”. After a while the child is reported to have said to her mother “I want you to send that picture to daddy. I don’t want it”.
The mother said that on 20 May, 2013, the child drew another picture, showed it to the mother and said “this is daddy in his room getting dressed but he isn’t going to put his pants on because someone is going to lick his bum.” The mother said that she asked the child “who is going to do that?” and the child responded “me and [H]”. A copy of that drawing was adduced into evidence.
The mother said that she was showering with the child in the evening of 29 May, 2013, so that she could wash the child’s hair. She said the child said to her “I’m going to lick your bum.” The mother said she exclaimed “what?” and the child repeated “yeah, I’m going to lick your bum.” She said that the child then tried to do that, whereupon the mother turned to her and told her to stop. She said the child persisted with her efforts to lick her on the bottom whilst saying to her mother “I’m just going to lick you like this” and then demonstrated a lick on the hand and arm. The mother said she leaned down to the child and said “please stop. It is mummy’s body and I don’t like it”. The mother said the child’s behaviour then changed. She became boisterous and anxious. The mother said she asked the child where she had learnt this (referencing the licking behaviour) and the child replied “with daddy. Daddy and uncle … told me to do that to you.” The mother said she asked the child “have you ever done that to someone before, licking bottoms?” and the child then started telling a story about daddy and her and H playing some form of game together that involved throwing a ball and licking. The mother said she reported these further disclosures of the child to the FACS help line.
On 31 May, 2013, members of staff at the child’s pre-school child care centre observed the child to pull her bottom cheeks apart and heard her say to the little girl lying next to her at rest time “look at this”. Staff told the mother about this when she collected the child.
The child was interviewed again by the JIRT team on 6 June, 2013. In that interview, she was told that her mother had said she had tried to lick her mother’s bottom in the shower and she was asked if she had done that. She said “no” and when asked if her mother would lie to the interviewers, she said “yes”. When asked if she ever licks anyone else’s bottom she said “no” and when asked if anyone else ever licks her bottom she said “no”. At that point, the child started to act coyly and baby-like and became uninterested in talking. Later, she said “I have a shower with my daddy and he is a boy. I didn’t lick him.” She was asked if her daddy lets anyone touch his penis and she said “no”. There was little else of relevance in that interview. Again, the JIRT team decided that nothing more could be done following that interview.
The mother said that she overheard some more concerning talk from her daughter on 22 June, 2013, when mother was at a salon obtaining a bikini wax. Her daughter was there and playing with a friend in the next room. At one point during the waxing the child walked in and saw her mother being waxed. The mother said she still had her underwear on at the time. The child asked her what was happening and the mother gave her an explanation. The child went out and began playing with her friend again. The mother said she then overheard the child saying to her friend “let’s take off our undies and then we can lick it”. The mother said she heard the child’s friend say that she was not going to take her underpants off. The mother said she heard the child say again “let’s take off our undies”. The mother then heard the other child’s mother telling the girls there was no need for anyone to take off their underwear and to keep them on. The mother said she heard the girls resume normal play.
Between August 2013 and November 2013, the child had supervised visits with her father for a few hours on most Sundays. These visits were supervised by a person acceptable to the mother and the father.
The maternal grandfather, who was a witness in the mother’s case, said that on 11 October, 2013, he was looking after the child whilst the mother was attending a medical appointment. He said the child and he were watching TV in the middle of the day and the child asked him to tell her a story about something that happened when he was a little boy. He told her that he used to get up early before school and go to the paddock to feed his horse. He said that he demonstrated to her how his horse used to nestle its nose in under his armpit when he was giving it attention. He said that the child then said “do you mean this is what he did?” and then she climbed up onto his lap and started nestling her head into his armpit. He said he replied “yes, that’s what he used to do”.
The grandfather said that the child then sat back on his lap facing towards him and looked down and pointed at his groin. She then said “poppy, what’s that?” He said he saw where she was pointing and he said to her “that is where poppy’s shorts are puckered from sitting down”. He said the child then said “No, that’s your penis, poppy” whilst continuing to push her hand down into his groin. He said that he then grabbed her hand and said to her “don’t do that to poppy please [A]… that’s wrong to do that, that’s poppy’s private part of his body, you shouldn’t touch that.” He said that she then said “I have my private parts on my body, too, and nobody should touch mine, should they poppy”. He said that he replied “that’s right, only mummy or the doctor can do that and only if they need to check to see if you have a problem in your private area”. He said that she then said to him “my daddy touches my vagina and I tell him I don’t like it and to stop it”. The grandfather said that he then said “oh, okay, where are you when daddy does that?” He said she replied “daddy does it when we are on daddy’s lounge”. She then changed the subject and pointed to the television program that was on, so the grandfather said he deliberately did not ask her any more about what she had said.
The mother said that she noticed more concerning behaviour on 26 October, 2013. She said that on that day she and the child were laying on the lounge and the child started to rock her hips, became hyperactive and began to wrestle with her. She said that the child reached down to touch the mother’s genitals and even after the mother told her to stop, the child still tried to touch her bottom and genitals. The mother said the child would not respond to questions as to why she was doing that.
The maternal grandfather said that he saw the child again on 9 November, 2013, and that he was talking on his mobile phone whilst sitting in a lounge chair in front of the television. He said that the child pulled herself up on to his lap and then placed her legs on either side of his head and started pushing her genital region in the direction of his face. He said he immediately told her to stop but she did not stop. He said that he then pushed her down and she again tried to do it. He said that he then pushed her down again and that she did it three times altogether before he put his phone down and physically moved the child to the next lounge chair. He said that the child just acted as if she thought her actions were funny.
In November 2013, the father was interviewed by the JIRT team and denied that he had abused the child. He was understood to have accepted the possibility that the child had been sexually abused and that it may have occurred in his household. He even proffered a name of a person who he thought could possibly have been responsible for it.
From early December 2013, the child began spending two hours each fortnight with the father, supervised at a local children’s contact service. That had been provided for in an order of the Federal Circuit Court of 6 December 2013.
The mother’s evidence was that the child’s concerning behaviour continued and that on 16 January, 2014, the child again tried to touch her in the genital area whilst they were sitting on the lounge together watching television. The mother said that she told the child not to do that and got up and removed herself from the lounge.
The mother said that she gave the child some “worry dolls” to put under her pillow at night and that she told the child that if she told the dolls her worries that they would take those worries away over night as she slept. On 13 March, 2014, the mother says, she heard the child say to the dolls (just after the mother left the room) “please stop the bad people from coming to get me and stop them from killing me and cutting my head off”. The mother said that again on 28 March, 2014, she heard the child say to their kitten “promise me when you grow up that you will stop the bad people from coming to kill me.”
On Friday 11 April, 2014, the child was discovered to have drawn a picture in chalk of a figure on the concrete in the playground at her school and described it to teachers as her father. She had drawn a very large and prominent penis on the figure with a line from it as if it was a man urinating or ejaculating. The school administration took a photo of the chalk drawing and a copy of that was adduced in evidence. The child told one of the teachers that her father had showed her how to draw it because she wanted to draw her father in the nude. The school contacted FACS and notified them, as well as the mother.
The mother said that she was contacted by an officer of FACS later that night and when she told that officer that the child was due to have supervised time with her father that weekend that she was advised that she needed to act to protect the child’s emotional wellbeing as well as her physical wellbeing. The mother said that she then cancelled the supervised visit scheduled for that weekend. The mother said the child “broke out in hives all over her body” at this time.
The child did not see her father again from April, 2014, until January, 2015.
The mother said that on Tuesday, 15 April, 2014, in the morning, the child was playing with her dolls and uttered the words (pretending one doll was saying it to another) “lick my bum, lick my bum”. The mother said that she said to the child “please don’t say that as it isn’t nice. Why are you saying that?” The mother reports the child saying in reply “Daddy, daddy taught me to lick bums”. The mother said that she then said to the child “How did he do that?” The child said “I don’t want to say”. The mother said “could you draw it for me if you can’t say it?” The child then went into another room (the office) and did a drawing with writing on it. She showed the mother who asked her to explain it to her. The child is reported to have said to her “daddy teaches me to lick bums”. The child explained the picture as a picture of her with her father with “daddy with a penis holding medicine in his hand to go up my bottom.” A copy of that drawing was adduced into evidence.
The mother said that later that day, the child brought the same picture out to her and said that she had drawn some ticks on the picture. She is said to have told the mother (and her grandfather who was also there at that time) that “they are for how many times daddy stuck that in my bottom”. She said that the child started to count from one to nine and when asked how she knew it was that many times, the child responded “because it was, daddy told me to keep it a secret and I didn’t want to tell you because I didn’t want to get into trouble, but now I’m telling you mum.”

For a time in early 2014, the child was being taken to a local service for counselling. The mother said that the child was reported to have disclosed to her counsellor on 28 April, 2014, that her father teaches her “to lick bums” and that he told her not to tell anyone and that if she did someone would come and get her and kill her. The counsellor told the mother that she reported the disclosure to the police. That counsellor gave evidence at the trial and was cross-examined.
The mother said that in May, 2014, the child was reported to have entered an out of bounds area at her school and gone into a classroom toilet with a male student. She was put on detention for this misbehaviour. The child is reported to have thought it was funny and received a second detention for being rude when being disciplined. The mother said that when, later, she asked the child what she and the boy had been doing in the toilet, the child responded “we were playing in there”. The mother said she asked her “what were you playing?” and the child responded “we were playing touching private parts.” The mother said that the teacher confirmed with her that the teacher was not aware that the children had been doing anything like that in the toilet.
The mother said that when she and the child were driving in the car together on 1 July, 2014, that the child said to her “you know the times I used to go to dad’s mum, he never used to smack me but he used to teach me how to lick bums.” The mother said she asked the child “how did daddy teach you to lick bums?” The child responded “I can’t say”. The mother said the conversation then went as follows:
Mother:You won’t get into trouble if you tell mummy, it’s my job to keep you safe. I won’t tell daddy if you tell me, I promise nothing will happen to you.
Child:I don’t have to see daddy at the centre do I?
Mother: We’ll see. Nothing bad will happen to you if you do see daddy at the centre because there are people there to keep you safe. How did daddy teach you to lick bums?
Child: I was asleep but I wasn’t. I heard footsteps and it was daddy going to the toilet. I woke up to see daddy and went to the toilet with him. He asked me to lick his bottom and I licked his bottom.
Mother: What happened after that [A]?
Child:Nothing
Mother:Was it night time or day time?
Child: Day time
Mother:Who else was at the house?
Child:[X] and [Y] were downstairs and drinking and smoking
Mother: How did that make you feel?
Child: I don’t want to talk anymore
Mother:That’s ok. I’m glad you told me. It’s not ok to lick bums is it? But it’s not your fault.
Child: Daddy said it’s ok to lick bums.
The child’s supervised time with the father began again at the contact centre in early January 2015. The mother had stopped taking the child several months before after becoming very concerned about her behaviour at around the times she was seeing her father. When the matter had been mentioned before me in this Court in late 2014 I had indicated that if there were orders in place for supervised time to be occurring then that is what was expected to be happening. The mother began to take her again after that.
The mother said that on 11 February, 2015, the child was holding their pet cat on her lap and the mother noticed that the child was rubbing the cat’s genitals in a circular motion with two of her fingers. The mother said she told the child to stop doing that. The mother said that she asked the child why she was doing that and the child answered “daddy taught me”. The mother said she asked the child “how did daddy teach you to do that?” and the child responded “I can’t tell you”. After a few words about telling the truth, the mother said that she asked the child “can you tell mummy how daddy taught you to do what you were doing to [the cat]. The mother said the child said “because daddy did that to me.” The mother said that she asked “when did daddy do that to you?” and the child said “when I used to go to his house”. The mother said she asked where this had happened and the child responded “in daddy’s room”. The mother asked “was it night time or day time?” and “who was home when daddy did that?” The child responded “It was at day time and it was when everyone was out. I was just lying on daddy’s bed and he just did it to me.” The mother said she asked the child if daddy had said anything to her when he did it and the child said “I was just lying on daddy’s bed and he just did it to me.”
The mother said that she went on to ask the child if she had said anything to her father when he did that to her and she said “I can’t remember because it was a long time ago when I was four, remember. But my tummy was like that washing machine feeling.” The mother said that she reported this disclosure to FACS later that evening.
The mother gave evidence that after the child started seeing her father again in January 2015, she started wetting herself again regularly whilst sleeping overnight, whereas she had been trained to the point of remaining dry throughout the night up to that time.
On 7 March, 2015, after a supervised visit with her father, the mother said the child was very withdrawn and told the mother that she had the “washing machine feeling” in her stomach the whole time she was with her father. The mother said that she took the child that same afternoon to visit friends, so that she could run around and play. The mother said that after a busy afternoon of activity the children were watching movies in the lounge room whilst she and the other mother were in another room talking. The children had been quiet for a while so the other mother went in to check on them. When she came back to join the mother, she told the mother that she had gone into the room and seen her son and the child standing behind the lounge and that her son had his pants and underpants off. She did not see them doing anything, but asked them what they were doing. Her son said nothing and she asked him why he had his pants off. She related that his reply had been “we were just measuring our shirts”. The other mother said that she then took her son to his bedroom to put him to bed.
The mother said that she went into the lounge room to see what was going on and then the child threw herself down on the mattress that was on the floor and started crying. The mother asked her what was wrong and what had happened. She said the child got up and hugged her and said “I did something yucky.” The mother said she then asked the child what she had done and the child said “if I tell you will I get into trouble?” The mother said she reassured her and then the child said, wiping tears from her face, “[Z]and I touched each other here” and she pointed to her genitals. The mother said she asked the child to use words to tell her what had happened and she said the child responded “[Z] and I touched and played with each other’s private parts and licked and smelt them. [Z] did it to me and I did it to him”. The mother said that she asked the child where she had got that from and the child said “daddy taught me”. The mother said that she took the child home after that and then contacted FACS and reported this incident.
The mother said that the next day her friend told her that her husband no longer felt comfortable having the child at their home and that she did not want to be “involved” any further. The mother said in her evidence that she and her friend had not seen each other since that time. The mother lamented that the child’s behaviour has made it difficult to arrange play dates with other children through other parents.
The child was again reported as having been seen engaging in sexualised behaviour at her school on 24 March, 2015, when she was seen to have lifted the dress on a doll she was playing with and lick the groin area of the doll.
The mother said that on 15 April, 2015, the child brought Z up again in conversation and mentioned the time when she and Z had been “licking private parts”. The mother said that she asked the child if it was both of them had done the licking or just one of them. She reports the child to have said “[Z] did it to me and I did it to him. I licked his penis like daddy taught me.” The mother said she then asked the child what daddy did when he taught her to do this. She reported the child responding with “daddy pulled me into the toilet and pulled my tongue out of my mouth and rubbed it up and down on his penis.” The mother said she then asked the child what she did when her father did that and the child said “daddy just did it for as long as he wanted and didn’t listen to me.” The mother said she asked the child how her father got her to go into the bathroom and she responded “he used a cranky loud voice like poppy’s voice sometimes when I am in trouble and he said “[A] come here” and he pulled me into the toilet with him.” The child is said to have gone on to say that it had happened at “two houses” and where “daddy lived in one house with a pool”. She said it would happen “in daddy’s room. He would slam the door and lock it with me inside the room.” The mother said that she asked the child if she only did things to her father or if he did things to her. The child is reported to have said “daddy did things to me too… when daddy moved house to a house after the one with the pool that is near the beach, that daddy would get me to lick his penis all the time .. it happened in the toilet.”
The mother said in her evidence that the child went on to say that one of the times that her father made her lick his penis “he had wee come out of the little hole in the end of his penis” and that some of it had got in the child’s mouth, down her throat and into her stomach. She said the child said “it was a yellow greeny colour . …. It tasted like poo and wee and smelt gross, it was just awful mum”. The mother said the child went on to say “one of the times in daddy’s house with the pool, in his room when he locked the door and wanted [the child] to lick his penis he got some long sharp thing and put it in the little hole in the end of his penis to stop the wee coming out … but it didn’t happen all the time, daddy doesn’t have that anymore”.
On 15 May, 2015, the child was interviewed again by JIRT officers. The interview was conducted at her school without her mother present. It was not recorded but notes were taken. Apparently, the child had herself said that she did not want the interview recorded. The notes reflect that the child knew that police were going to be coming to talk with her about her father, confirming that her mother had told her that they would be. Indeed, there is evidence that the child’s counsellor had talked to her in advance about undertaking this interview.
When the interviewers asked the child what it was that they were coming to talk with her about she told them it was “what he did to me”. She told them it really happened, but it was a bit rude to actually say to them. The child said “it was a long time ago”. She then said she could not remember what had happened.
Before the child had said much else of relevance, she told the interviewers she wanted to go, but as she was going she asked them why she had seen a picture of a boy and a girl and pointed to some body charts they had with them. The interviewer told her she was going to get her to show the interviewers on the picture where the rude thing was. The notes reflect the child then pointed at the penis and said “he got me to lick here”. She then is said to have pointed to the vagina on the picture of the girl and said “he licked there”. She was asked “where?” and again is said to have pointed at the picture and said “and then he got me to lick there”. She was asked what those parts were called and she said “vagina and penis”. A little later she was asked what his penis looked like and she asked for a pen and said “I’ll show you”. She is said to have then clearly drawn a penis, before pointing to the tip of it and says “he had a needle in there.” She said the needle was to stop him going to the toilet. She was asked again had she ever seen her father’s penis and she said “only when that happened, I saw it”. She was asked was it hard, soft or something else and she said “hard”. She was asked what it felt like and she said “yucky”. When she was asked where it felt yucky she drew on the picture and said “mouth and hands”. The interview ended soon after that.

The Family Reports

On 25 May, 2015, the mother, the father, the child, the mother’s new partner, the father’s new partner and the maternal grandfather were all interviewed by the family consultant who had prepared two previous family reports in the matter in 2013 and 2014. She prepared a third report following these interviews, which was dated 16 June, 2015. The family report writer had access to a lot of the evidence in the matter when preparing this final report.
The report writer noted that the records from the children’s contact service described the child’s visits with her father and his partner as generally enjoyable for the child from January through February, 2015, but that from mid-March the child had demonstrated “ambivalent, confused and/or angry feelings towards her father” whilst still being described as being happy and excited at times throughout that period.
The report writer, Ms B, met with the child by herself. She described the child as initially being nervous and reluctant to answer even innocuous questions. Ms B was aware that the mother had told her that she had spoken to the child about the interviews and had told the child that she might be asked questions like the ones the police asked her and like her counsellor asked her. The mother had also told the report writer that the child had required lots of reassurance that she would be safe if she saw her father.
The report writer observed that the child had stated, when first seen alone, that she did not want to see her father unless the report writer stayed in the room with her, so that her father did not “do that thing”. She avoided further conversation about that with the report writer.
However, the writer observed that the child soon began to express eagerness to see her father and she wanted to go out to get him so that he could join her in the playroom. The child was reported as also being eager to get her mother and father and poppy and her father’s partner to all say hello to each other. The report writer said that the mother told the child that she would not do that and although the father was amenable to the idea, the mother and the grandfather did not facilitate it happening. The mother told the report writer that it is very difficult for her, seeing the father.
The report writer observed the child to enjoy the time with her father and his partner, be affectionate to them and be reluctant for her time with them to end.
The report writer noted that the mother was surprised that the child seemed so happy and relaxed about seeing her father. Interestingly, the report writer recorded that after the child had gone back and spent some time with her mother and grandfather after the session with the father and his partner, the child told the report writer that she “wanted another turn talking to” her and she said to the report writer “I need to talk to you about something”. The report writer observed that this was “somewhat unusual as she had been avoidant of discussion prior to this”.
The child then drew a picture and told the writer it was her father’s house at the seaside village where he was living in late 2012 and early 2013. She drew her father on it, too. She drew a blue triangle at his groin and told the report writer that was his penis. She then told the report writer that her father’s clothes were on the toilet floor and that he got her to “lick his doodle”. She said that it happened when she was four.
The report writer observes that she asked the child how she remembered that she was four and the child said “mum reminded me”, and that her mother had reminded her that morning. The child is then reported to have added “he doesn’t do it at the contact centre because he thinks he’ll go to gaol”. The writer said that the child did not explain why she thought that. I expect the child had heard something like that being said before.
In her evaluation, the report writer observed, amongst many other things, that:-
It does appear that [the child] has frequently been praised and rewarded by her mother and … [the counselling service] for statements she has apparently made that suggest sexual abuse. [The child] also appears to have been encouraged to report these things to people contributing to formal assessments of her best interests, such as the Joint Investigation Team and the family consultant. This encouragement and praise appears to the family consultant to be aimed at ensuring her protection by those who appear convinced that she has been subjected to harm and abuse rather than being simply encouragement for raising complaints about her father.
As noted in the previous family report, when parents are raising allegations vindictively or seeking to sever a child’s relationship with a parent, allegations of abuse are often presented as facts early in litigation and the alleging parent has often thwarted contact from the time of the separation. When there has been concerted undermining of a parent/child relationship by a parent, during observed visits the children often act aggressively towards the maligned parent, and they often seek approval from the alleging parent. [The child] has sometimes been reluctant and avoidant at contact centre visits it seems, but notably she displays affection for her father in front of her mother suggesting she is not anxious about being rejected or disciplined for this.
Children who are maliciously or erroneously encouraged and/or compelled to believe and report abuse by one parent generally report this to interviewers and professionals and in a manner that suggests rehearsal and obligation to repeat things. These elements were not evident to the family consultant in the JIRT or family consultant interviews with [the child] at the time of the last family report. There was, however, some evidence of this during this family report. If, as [the child] seemed to suggest, her mother had reminded her and encouraged her to recount something to the family consultant, it is possible that this reflects [the mother’s] growing difficulty managing [the child’s] behaviour and an intensified need on her part for [the child] to recount things to professionals in order for [the child] to be protected.
I will return to further discussion of this and the balance of the family consultant’s evaluation in that final report further on.

Some other relevant history

The mother gave evidence that during her relationship with the father he disclosed to her that when he was younger he was sexually assaulted by an older male cousin. She said that he had also disclosed to her that when he was aged 12 or 13, he had sexually abused some of his siblings. She said that she was not told about what had actually occurred but that the father had told her that “it was not sexual intercourse”. The mother said that the father had told her that when his mother found out about this she had kicked him out of the family home and that his step-father at the time had also physically assaulted him. She said that the father had told her he had been placed in foster care, made a ward of the State at the age of 14 and lived in care until he was 18. The mother said that when the father had disclosed all of this information to her he had been very upset, said that he knew that what he had done was wrong and told her that he had never received any “help or counselling”.
The mother said that she told him that she wanted to help him and suggested that he get some counselling and she told him that she would support him through that. She said he did not go and have any counselling after that until two years later when the child was about three months old and they were having relationship difficulties. They attended two counselling sessions together for relationship issues, and she said that she suggested the father attend some private counselling to help him address his past, to which she said he responded to her that he was “healed” after their two counselling sessions together.

A very significant part of Ms B’s oral evidence, in my judgment, was her repeated expression of opinion about the child’s sexualised behaviour reported by her mother, her mother’s friends and the child’s school. She expressed the opinion that the reported behaviour was outside of and went well beyond the “normal range” of behaviour of a child or even a child who might be experiencing anxiety about being separated from a parent she loves or being exposed to high conflict between parents. Ms B also expressed the opinion that the child’s sexualised behaviour with other children was a “real worry” and needed to be stopped as soon as possible. When she was giving her evidence, she was particularly worried about the fact that the child’s behaviour had led to her three day suspension from school as recently as December, 2015 and that it threatened her ongoing enrolment at that school.
Ms B’s opinion on this issue gained support from the evidence of Ms R, the FACS officer, and Ms F, the child’s counsellor, who also both gave evidence that the sexualized behaviour witnessed in the child was outside the normal range of sexualized behaviour for a child of her age. Indeed, Ms F, an experienced sexual assault counsellor, told the Court that it is extremely rare for children to demonstrate sexualized behaviour outside the normal range like in this case unless they have been sexually abused, witnessed adult sexual behaviour, viewed pornography or been exposed to other children displaying extremely sexualized behaviour.
I comfortably accept that opinion evidence of Ms B, Ms F and Ms R on this matter.
In this case, there was no evidence that the child had viewed pornography or been exposed to other children displaying extremely sexualized behaviour. Indeed, on the evidence, it was apparent that the child, the child, had instigated the extremely sexualised behaviour she had been engaging in with other children. In the witness box, Ms B actually went as far as expressing the opinion that the child’s behaviour strongly suggested that “something has happened that she has been exposed to or been included in”. I consider that she is likely to be correct about that.
In the evaluation part of her third report, Ms B also remarked that the child’s relationship with her mother has become more strained over time and that the mother finds her behaviour at times difficult to manage. The evidence was that the mother continues to experience feelings of anxiety and depression at times and has been receiving ongoing psychological counselling herself. Ms B opined that the mother “appears to genuinely believe that [the child] has been sexually abused by [the father] and be experiencing feelings of grief, anger and frustration about not knowing how to best meet [the child’s] needs”.
Ms B went on to say:
It is important that consideration be given to how [the child’s] visits with her father are affecting [the mother’s] parenting of [the child] and their social relationships. It is of utmost importance to [the child’s] healthy development that she experiences her relationship with her mother as secure, consistent and predictable and that her mother remains emotionally available to her.
It does appear that, since visits between [the child] and her father were reinstated in January 2015, visits are more frequently triggering [the child] to make statements related to sexual abuse by him. It is unclear why this is occurring but visits could undermine [the child’s] recovery from abuse or recovery from a belief that her father has done “rude” or “bad things” to her.
It is a concern that, if [the child] has been sexually abused, or as it now appears, at least believes that her father has done something “bad” or inappropriate to her, a continuation of contact with him may harbour a sense in her that she has not been adequately protected, or that what she has said has occurred is not unacceptable. Should this be the case, [the child] may in the future be reluctant to report other harmful circumstances in her life.
[The child] would also be emotionally and psychologically affected if she were to not see her father. If visits are suspended, [the child] may experience confusion and feel abandoned. [The child] could harbour a longing, in both the short and long term, to see her father and she could blame her mother and/or herself for the loss of the relationship.
A possible means of helping [the child] recover from actual harm and/or the processes of assessment and litigation may be to suspend her visits with her father. It is not in her interests to be reliving memories of abuse, or be feeling the need to recount narratives of abuse. These may be triggered by the emotional confusion that she and her mother experience in relation to visits, supervised or otherwise. It is important that attempts be made to assist [the child] to not act out sexual behaviour with other children. Some strategies to deal with this are best dealt with in a therapeutic or counselling setting. However, because visits with her father appear to be increasingly associated with sexual behaviours by [the child], suspension of those visits may assist to decrease such behaviour with other children.
Ms B actually then recommended that the Court consider suspending [the child’s] contact with her father. She also said that if contact was to occur between the child and her father that it should “always be supervised”. In her oral evidence, she again went as far as expressing the opinion that a complete cessation of contact should occur, before then saying that if supervised time was to occur that its frequency could be significantly reduced so that the child could at least have respite from the emotional turmoil that the evidence suggests she has been experiencing with the regular, supervised contact, but could still maintain a connection with her father who she clearly still loves. Ms B said that she could have contact with her father to maintain a sense that she has not done anything wrong, that she is not in trouble and to be aware that her dad is still there.

The Father’s partner, Ms J

Ms J is clearly an intelligent and capable woman. She was 26 years old at trial. She completed an Honours Degree in November 2014 and said in her affidavit that she planned to commence a PhD. She impressed as considered and thoughtful. With the Court’s leave, she sat through the entire trial. She clearly loves and trusts the father and obviously took a significant and involved part in his liaison with FACS officers during the latter part of their investigations. As I have already observed, she conceded that she knew a lot more about the abuse the father suffered and perpetrated as a child after hearing all of the evidence than he had ever told her. She also said she changed her mind about its relevance in the proceedings. Nevertheless, it did not appear, at least overtly, to cause any change in her feelings towards him or her opinions about the matter.
Ms J, through the father’s legal representatives, offered herself up as a supervisor of the father’s time with the child. Senior Counsel for the mother challenged the level of vigilance she would offer because of her trust in the father. She expressed strong disagreement saying that the responsibility to protect the child would go beyond the issue of trust. She said “I would ensure [the child] is safe.”
The solicitor advocate for the ICL asked Ms J what she would do if she saw something sexually inappropriate. Ms J’s response was that she would ensure that it stopped and would take the child home to her mother. She said she would have to call the police and probably contact the lawyers as well.
Ms B, who had said in her third report that Ms J “presented as someone suitable to supervise [the father’s] contact with [the child]”, under cross-examination by the solicitor advocate for the ICL, said that she did not think that Ms J’s firmly expressed belief that the father had not sexually abused the child disqualified her from being a supervisor. Ms B said that she thought Ms J would be conscious of her “duty to do the right thing” although such supervision should only occur three times per year or thereabouts and would need to be strictly controlled. Ms B had acknowledged in her third report the obvious fact that Ms J’s ongoing supervision over a long period could not be guaranteed for various reasons. She also indicated that if the frequency of supervision is reduced that the duration of each such visit could be extended to as long as five hours.
On 3 February 2016, after the trial had concluded, the father filed another affidavit by Ms J. She said in that affidavit that she is committed to supervising the time the father spends with the child “at all times ordered by the Family Court”. She attached a signed Undertaking to the affidavit and said that she had signed it with the full knowledge and understanding that it is as binding as an order of the Court. That undertaking reads as follows:
I will supervise family contact between Mr [Beaumont] (“the father”) and his daughter, [A Beaumont] born … 2009, (“the child”) at all times ordered by the Family Court of Australia. In providing this undertaking, I understand that my responsibilities to protect the child from physical and emotional harm and my responsibilities to the Family Court of Australia outweigh my relationship, as the father’s current partner. During time spent with the father, I undertake to do the following:
a)supervise all time the child spends with the father;
b)remain within a four (4) metre distance of the father and the child at all times during contact;
c)ensure that the child is not left on her own without my supervision, specifically:
i)ensure that the child is not left in the presence of any other person;
ii)ensure that the child is not left in the presence of the father without my supervision;
iii)ensure that the child is not left in the presence of the father with another supervisor other than myself;
d)advise the mother if I am unable to supervise contact;
e)        ensure that no other person attends if so ordered by the court;
f)ensure that contact between the child and the father occurs in a public place if the court so orders.
If the court orders that the child spend overnight time at the father’s residence, I am prepared to sleep in the child’s room if ordered, and:
a)         accompany the child to the bathroom if the child requests;
b)monitor all conversations between the child and the father;
c)intervene in inappropriate conversations and ensure such conversations cease;
d)terminate contact whenever the child exhibits signs of distress.
If the court orders, keep detailed notes and records of contact or incidents that occur at contact that can be produced upon request, and:
a)         provide the mother with feedback on the nature of the visit;
b)facilitate an environment whereby the child can develop a meaningful relationship with the father;
c)remove the child from any situation where there is a risk of harm or where harm is substantiated;
d)notify the mother, Police and the Department of Child Safety and Disability Services [this is not the correct name of the NSW Department of Family and Community Services] of any concerns that may indicate the child is at risk or being subjected to physical or emotional harm by the father or any other person.
I am satisfied that Ms J does understand the seriousness of the circumstances and the onerous nature and responsibility of supervising any time that the child spends with her father, if that be this Court’s order. I am not of the view that her belief that the father did not sexually abuse the child would cause her to be less vigilant than would be required such that it disqualifies her from being a suitable supervisor.

The Submissions of the ICL

For the ICL, it was submitted at the conclusion of the seven days of evidence that the Court should not find that the child would face an unacceptable risk of sexual harm if she was to spend unsupervised time with her father but that it should find that she would face an unacceptable risk of psychological harm. That submission was essentially based on Ms B’s evidence that whilst she could not actually identify the cause, she was of the opinion based on the evidence she had seen and heard that the child was clearly suffering from emotional trauma connected somehow with the visits she was having with her father.
I understood the submissions of the ICL to essentially reflect her position that the child is unlikely to have been sexually abused by her father but that the mother’s genuine belief that she was, and the circumstances that have unfolded with the investigations and the litigation have created a situation where the child’s best interests will be served by a continuation of supervision of the time the child spends with her father, through the comfort that will at least provide her mother.
The ICL submitted that Ms J would be a suitable supervisor but that supervision should be limited to five hours each second Sunday and on Father’s Day each year.
The ICL went on to submit that in the event the Court rejected her principal submission and did find that the child faced an unacceptable risk of sexual abuse in the unsupervised care of her father that she should nevertheless spend time with him, supervised by Ms J or another qualified supervisor, on only four occasions per year.

My Determination

Having considered all of the evidence in this case, I must say that I respectfully disagree with the ICL. Having considered all of the evidence, and particularly those matters that I have discussed and highlighted in these reasons, I have come to the view that it is more likely than not that the child was sexually abused on a number of occasions in or around 2012 and 2013 by the father. The things reported to have been said by the child to her mother, her maternal grandfather, the FACS officers, her teachers, her counsellor, and the family report writer, all of which I accept were said, weigh heavily in this finding. So, too, does the evidence of the overtly sexualized behaviour of the child and the expert opinion about that. In addition, the father’s own childhood history of being sexually abused and abusing his siblings combined with my satisfaction that he has never really emotionally come to terms with that and the evidence of his extreme alcohol abuse and lack of impulse control whilst drinking add significantly to the process of arriving at this decision.
All that said, I am not prepared to say, particularly having regard to the standard of proof required to do so (as I have discussed earlier in these reasons), that I am positively satisfied that the father actually did sexually abuse the child. Rather, being mindful of the task of the Court as identified in the High Court and Full Court authorities I have earlier referred to, I am quite prepared to say that I do consider that the risk to the child of being sexually abused by her father if she was to spend unsupervised time with him on an ongoing basis is an unacceptable one. Accordingly, I will not be making any parenting order that provides for the child to spend unsupervised time with her father.

Should the Child spend supervised time with the Father?

I have, however, reached the view that it is in the child’s best interests to continue to see her father despite being satisfied that he poses an unacceptable risk of sexual abuse to her if they were to spend time together on an unsupervised basis. The evidence persuades me that the child loves her father, has an emotional attachment to him and generally enjoys spending time with him, particularly in circumstances where she feels safe and not at risk of harm from him. I am also satisfied that once this judgment is delivered and my findings are known to the mother that she, too, will feel significantly relieved and is likely to be less stressed and anxious about her daughter spending limited amounts of supervised time with her father even though her principal position was that the child should not spend any time with him at all. I consider that some supervised time with her father on an ongoing basis will allow the child to maintain a relationship with her father as she grows but protect her and provide her mother with comfort that she is safe at the same time.
I accept the recommendation of Ms B and the submission of the ICL that if the child is to spend supervised time with the father that it should be limited to only a few times each year rather than every fortnight. This reduced frequency should significantly reduce the emotional pressure on the child and the mother and help the family better cope with the outcome of the case, whilst still giving the child the chance to maintain a relationship with the father, albeit a limited one, as she grows and matures.
I am aware that the children’s contact centre that was providing supervision of the father’s time with the child at the time of the trial informed the ICL that it was not going to be able to offer supervised visits to this family from January last year as a consequence of the JIRT team’s substantiation of the allegations of sexual abuse between the father and the child. I do not know whether or not the child has spent any supervised time with the father since the trial concluded whilst my judgment has been reserved. Having regard to that centre’s stated position, I would not expect it to provide supervision for this family from now on in the face of my finding that it is more likely than not that the child was sexually abused by her father.
I accept the evidence of Ms B that Ms J would be a suitable supervisor. I do not consider she is disqualified because she said she does not believe that the father sexually abused the child. I was satisfied that although that was her expressed view at the time of the trial that she would still take supervision seriously and I will order that the child shall spend time with the father if Ms J supervises that time. I consider that one such supervised visit every four months, being three per year, is an appropriate number in the circumstances. Having regard to the time that has elapsed since Ms J signed the undertaking I have referred to earlier, I will require Ms J to sign another undertaking to be filed with the Court before such visits are to commence. The undertaking will also be slightly different to the one she has already signed. It will reflect the fact that the child will not be spending overnight time with the father as well as my consideration of what obligations should be upon Ms J when such supervision is occurring. The child’s time with the father supervised by Ms J will only commence if and when that undertaking has been filed in the Court.
The father and Ms J shall be entitled to decide where to spend that time with the child and may take her to their home and spend it there if they wish. Transitions of the child between the care of the mother and the father and Ms J shall take place at a public location so as to reduce the opportunity for conflict between the parents in the presence of the child.
If Ms J is no longer willing to supervise the child’s time with the father now or at any time in the future, the child shall only spend time with the father if it is supervised by another supervisor agreed upon in writing between the mother and the father. If such a supervisor is a private supervisor who charges a fee for the provision of supervision, then the father shall be responsible for the payment of any such fee.

Parental Responsibility

Though counsel for the father challenged the family report writer on her recommendation that parental responsibility (as that term is defined in the Act) should be conferred solely on the mother, Ms B did not shift from that recommendation. She had said that as the mother appears to fulfil her responsibilities to the child appropriately and seems to genuinely believe that the child has been sexually abused by the father, she should not be expected to communicate and negotiate with him about decisions that fall within the scope of parental responsibility.

I accept Ms B’s opinion. I am satisfied that the mother believes, on reasonable grounds, that the father sexually abused the child. I am satisfied that it is more likely than not that he did. I accept that the mother has been parenting the child appropriately and will make decisions about the “major long-term issues” (as that term is defined in the Act) in the child’s life with requisite child-focus. An order conferring parental responsibility on both parents in a shared manner imposes statutory obligations (s 65DAC of the Act) on both parents to make those decisions jointly after consultation and “genuine effort” to come to a joint decision. I do not consider imposing that obligation on the mother in this case would be in the child’s best interests as it would cause the mother more stress and anxiety that would likely adversely impact upon her parenting. I will make an order that confers parental responsibility solely on her.
The mother asked for an Order that also conferred upon her the right to apply for and obtain a passport for the child without the need for the father’s consent to be provided to the issuing authority, the Australian Government. Pursuant to the provisions of the Australian Passports Act 2005 (Cth), particularly s 11(1) and (5), a child’s passport can be issued to a parent who has the benefit of an Order of this Court conferring parental responsibility solely on her or him, without the consent of the other parent. As such, a specific Order providing for that where sole parental responsibility has been conferred is not necessary. However, for the sake of clarity I will expressly provide for it in my orders in any event.

Other Miscellaneous Orders

I consider it appropriate having regard to all of the parenting orders I intend to make, to order that the mother and the father keep each other informed of their respective residential and postal addresses and for each to advise the other of any change thereto as soon as practicable after such change occurs.
I also consider it appropriate, given that I will be ordering that the child spend time with the father on three occasions per year, to order the mother to inform the father in writing, at least once per year, of the child’s educational and social progress and of the details of any cultural, sporting or other extra-curricular activities the child has been engaged in so that he has an idea of what the child is achieving and participating in in her life.
I also consider it appropriate to provide for the mother to inform the father in writing of any significant injury or illness the child suffers, as well as details surrounding that, such as treatment, recovery and prognosis.
The father should, I consider, be permitted to send cards, letters, gifts and photographs to the child at his election at other times than when she is spending time with him. This will enable him to send them for the child’s birthday, Easter and Christmas as well as any other time he wishes to. However, I will provide for the mother to determine if they are suitable to pass on to the child, so that the father is conscious of the need to keep such things appropriate. I will, though, also require the mother to return to the father any item that she determines is unsuitable to pass on to the child, with an explanation in writing as to why she did not consider it suitable to be passed on to the child. That should reduce any capacity for arbitrariness on her part.
I will make it clear in my orders that the father is not to attempt to communicate with the child or attempt to see her other than in accordance with the orders.
I will also provide for the mother to take the child to receive such counselling as she may consider appropriate from time to time. Ms B made it clear that whilst counselling might help the child at some stage in the future that really should be left as a matter to be determined between the mother and any professionals she takes advice from.
I will, however, also provide for the mother not to discuss any aspect of these proceedings, including their outcome, with the child and for the mother to take the child to see Ms B, the family report writer, for her to explain the outcome of the proceedings to the child after having read this judgment.
I will also immediately discharge the Independent Children’s Lawyer, seeing there to be no need for her to remain in the role at this time.
I make the orders set out at the commencement of these reasons.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 January 2017.

Associate:

Date: 20 January 2017

[2017] FamCA 20

20 January 2017

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Natural Justice

Procedural Fairness

Statutory Construction