Jasapas and Johns
[2020] FamCA 214
•24 February 2020
FAMILY COURT OF AUSTRALIA
| JASAPAS & JOHNS | [2020] FamCA 214 |
| FAMILY LAW – CHILDREN – Best Interests – Where a final parenting order was made in 2016 following a contested trial which conferred equal shared parental responsibility for the two children on the parents, and provided for them to live with the mother and spend increasing unsupervised time with the father, such that they spend five nights each fortnight and half school holidays with him – Where the mother, at the first trial, alleged that the father presented an unacceptable risk of sexual abuse and physical harm to the children, which was not accepted by the trial judge – Where the mother now makes allegations that the father has continued to sexually abuse his son, is now sexually abusing his daughter and that the paternal grandparents are complicit in the abuse – Where the mother seeks that she have sole parental responsibility and that the children spend no time with the father – Where the father seeks that the children be moved to live in his full-time care, for him to have sole parental responsibility, that the mother spend no time with the children for a period of six months and thereafter supervised time only for a further six months before progressing to unsupervised time – Where the Court is satisfied that the father does not present an unacceptable risk of sexual and physical harm to the children – Where the Court is satisfied that the mother presents an unacceptable risk of emotional harm to the children due to her inability to let go of her beliefs about the father and objectively evaluate and assess matters of complaint against him –Where the impact on the children of a change of residence is outweighed by the risk of emotional harm presented by the children continuing to live in the mother’s household – Where it is in the best interests of the children to move to live with their father, spend no time with the mother for six months and for their time with the mother to be supervised until the mother and father agree to move to unsupervised time - Where the father will have sole parental responsibility, with an obligation to consult the mother, for decisions about major long term issues, save for the children’s names and changes to living arrangements that make it significantly more difficult for them to spend time with the mother. |
| Child Protection Act 1999 (Qld) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Briginshawv Briginshaw (1938) 60 CLR 336 Harridge & Harridge [2010] FamCA 445 In the Marriage ofN and S (1996) FLC 92-655 M v M (1988) 166 CLR 69 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| Mahendra, B, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Jasapas |
| RESPONDENT: | Mr Johns |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox |
| FILE NUMBER: | BRC | 5081 | of | 2014 |
| DATE DELIVERED: | 24 February 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 1, 2, 3, 4 & 5 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGregor |
| SOLICITOR FOR THE APPLICANT: | Mitchell Lawyers |
| THE RESPONDENT: | Self-Represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
That all previous parenting Orders be discharged.
That the children, B born … 2010 and C born … 2013, (“the children”) shall live with the father.
That the children are to be transferred forthwith from the mother’s care to the father’s care by the father taking the children home with him in his unsupervised care from the supervised time session that is currently taking place at D Town as soon as the father and the supervisor become aware of these Orders being made.
That the Independent Children’s Lawyer shall immediately confirm with the father and the supervisor that the father and the supervisor are aware of these Orders and that the father is immediately taking the children home with him in his unsupervised care and she shall then immediately advise the mother, by whatever means of communication the Independent Children’s Lawyer considers appropriate that the children have gone with the father, pursuant to these Orders, to live with him in his unsupervised care.
That the mother and the maternal grandparents are restrained from attending at the premises of the supervisor or from contacting or attempting to make any contact with the supervisor before the expiration of five calendar months from the date of these Orders.
That the father and the paternal grandparents are restrained from telling the children of the outcome of these proceedings and the effect of these Orders, save that they are going to be staying with the father for a while and that their mother knows about this, and they shall not discuss these matters or any matter pertaining to these proceedings with the children or even with each other within the children’s hearing until the children have been told the outcome of the proceedings and the effect of these Orders via the offices of the Independent Children’s Lawyer as provided for in these Orders.
That the Independent Children’s Lawyer shall arrange with the father to speak with the children or have the family report writer, Ms J, speak with the children, as soon as that can conveniently be arranged, to inform the children of the living and care arrangements now in place pursuant to these Orders.
That save as provided for in paragraph (9) hereof, the father shall have sole parental responsibility for the children’s long term welfare, care and development, provided that before he makes a decision about a “major-long term issue” as that term is defined in section 4 of the Family Law Act 1975:
(a)The father shall advise the mother by email of the decision that he wishes to make and of the reasons why he wants to and for which he intends to make that decision;
(b)The mother shall reply to the father within seven (7) days of receipt of the father’s email, by her own email setting out whether she agrees with the decision or in which she provides an alternate proposal and the reasons for her proposal;
(c)The father shall give due consideration to the mother’s response including any alternate proposal she makes and the reasons she has given for that, but if the father is not persuaded to accept the mother’s alternate proposal and no agreement can be reached, then the father’s sole parental responsibility shall entitle him to make the final decision.
That save as otherwise provided for in these Orders, the father and the mother shall have equal shared parental responsibility for decisions involving a change of the children’s names or a change of the children’s living arrangements that would make it significantly more difficult for the children to spend time with either parent.
That the children spend time with and communicate with the mother at all times as agreed between the mother and the father and, until she is discharged pursuant to these Orders, the Independent Children’s Lawyer, but failing agreement at least:
Following a moratorium of six (6) months after the transition of the children into the father’s care pursuant to these Orders during which they do not spend time with or communicate with the mother:
(i)Supervised at the L Group or such other place as may be agreed upon between the Independent Children’s Lawyer, the father and the mother, each alternate Saturday for a period of up to two hours at the expense of the mother.
That after the children have begun spending supervised time with the mother pursuant to paragraph (10) hereof, any re-commencement of communication between the children and the mother and any unsupervised time in her care thereafter shall be a matter to be agreed upon between the mother and the father.
That the father shall arrange and facilitate, at his expense, such therapeutic counselling and assistance for himself and the children to help them cope with the challenges that will present after their transition to his care, taking advice from the Independent Children’s Lawyer who may consult with the family report writer, Ms J, and the Adolescent and Child Psychiatrist, Dr M and the psychologist, Ms K, or any other expert she considers appropriate in order to provide referrals and recommendations to the father as she considers appropriate.
That the father shall keep the mother advised by email or specialist internet based Application as to any significant developments in the children’s health, educational and cultural development as and when such developments occur.
That save as otherwise provided for in these Orders, the mother, the father, the maternal and paternal grandparents are restrained from publishing, or causing to be published, to any third person, persons or entity, other than a solicitor or barrister in the course of obtaining further legal advice, or an elected Member of Parliament, any documents (including, but not limited to, affidavits, reports and documents produced pursuant to subpoena) or photographs from these proceedings, relating to these proceedings or the subject matter of the proceedings without first obtaining leave of the Court.
That should the mother commence therapeutic counselling or psychotherapy as recommended by the family report writer in her evidence, the mother shall be at liberty to provide the psychotherapist or counsellor she attends upon with copies of the following documents for that therapist’s professional consideration:
(i)The affidavit of Ms J filed 17 January 2019 and its attached family report;
(ii)The affidavit of Adolescent and Child Psychiatrist, Dr M filed 24 June 2019 and its attached report;
(iii)The Orders and Reasons for Judgment of Justice Tree of this Court of 13 June 2016;
(iv)These Orders and Reasons for Judgment.
That each of the parents and each of the children’s grandparents are restrained from denigrating the other parent or any member of the other parent’s family to, or in the presence or hearing of the children.
That unless the mother has the prior written agreement of the father she is restrained, as are each of her parents, from attempting to make contact with either of the children other than in accordance with these Orders and the father is at liberty to show a copy of a sealed copy of these Orders to the Principal of any school or child care facility attended by the children from time to time to inform them of this restraint, though the mother is permitted to communicate with the Principal of any such school or child care facility and to obtain, through that Principal, any information from the school or child care facility about the children that the school or child care facility would normally lawfully be able to provide a parent of a child attending such school or facility.
That the Independent Children’s Lawyer be discharged on the date that is one calendar year from the making of these Orders.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jasapas & Johns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 5081 of 2014
| Ms Jasapas |
Applicant
And
| Mr Johns |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Over three days in May 2016, the mother and father in these parenting proceedings took part in a trial in this Court presided over by Justice Tree. That was a trial about the parenting arrangements for their two young children. The father had no legal representation in that trial. He could not afford it. The mother was represented by a very experienced family law barrister. The then Independent Children’s Lawyer (“ICL”) was also represented by a barrister. Justice Tree delivered his judgment several weeks later on 13 June 2016.
His Honour’s Orders conferred equal shared parental responsibility for the two children (a boy who was then 5 and his little sister who was almost 3) on the parents, and provided for them to live with the mother (just as they had been doing since the 2014 separation of the parents). Those Orders also provided for those two children to spend unsupervised time with their father on a gradually increasing basis. It was to be one overnight stay each fortnight straight away, increasing to one four night block and one extra overnight stay each fortnight and half of the school holidays from February 2019.
Those Orders were very significant in the context of the case that had been run by the mother. She did not want the father to have unsupervised time with the children. She had argued that spending unsupervised time with the father presented an unacceptable risk of sexual abuse and physical harm to the children.
I respectfully observe that Justice Tree devoted much attention in his Reasons for Judgment to the mother’s case against the father. She had argued that the father had sexually abused their son and had also physically abused him. Ultimately though, his Honour said at [110]:
I am not persuaded that the father presents an unacceptable risk of harm to these children, such that [the father’s] time ought either be suspended or supervised.
His Honour also dealt with the mother’s case that the paternal grandmother was complicit in the sexual abuse allegedly perpetrated by her son. His Honour said at [113]:
The paternal grandmother was cross-examined by counsel for the Independent Children’s Lawyer in relation to these matters. She emphatically rejected them. I unhesitatingly accept her evidence. She presented as a sensible, caring, intelligent and loving grandmother. There is absolutely no reason to believe that she would tolerate for even one second any sexual abuse of either of her grandchildren, and I wholly reject the assertion that she has done so. However the absurd allegation that she herself presents a risk of harm to the children, and is grooming them for sexual assault, is simply ridiculous. It may safely be described as complete rubbish. The fact that the mother is prepared to swear evidence to that effect, speaks volumes as to her lack of objectivity in relation to these sorts of matters, and the unreliability of her own perceptions in those regards.
In his Reasons for Judgment, Justice Tree included the following paragraphs under the heading “Would Parents Facilitate Meaningful Relationship with Other” at [116] to [119]:
Given the view which the mother, and many members of her family, appear to hold of the father, one could readily suspect that the mother would be unlikely to facilitate a meaningful relationship between the children and the father. However interestingly this was not the opinion of Ms F, based upon her observation of the children with their parents. Her evidence was that even though the mother has many concerns in relation to the father, her observation of the children when they were told (in the mother’s company) that they were going to see their father, they became excited and associated seeing their father as a happy event. She said that, had the mother been attempting to influence the children to a negative view of the father, or otherwise seeking to impede that relationship, that would be an unlikely response. She suggested that the children’s reaction informed her that the children were unlikely to have been exposed to negative talk about the father, or otherwise influenced to see him in a poor light. Further, she said that when the children went to the father, they were not stand-offish, in that they were not waiting to obtain their mother’s approval to do so.
Whilst (given the mother’s view of the father) it may seem somewhat miraculous that she has not sought to poison their relationship with him, nonetheless that appears to be the case.
On balance, and concededly remarkably, I am satisfied that the mother would facilitate a relationship between the children and father.
There was no material to suggest that the father would not be willing to facilitate a relationship between the children and the mother.
(Emphasis added)
Sadly for this family, Justice Tree’s judgment did absolutely nothing to quell this parenting dispute. Within six months, the Queensland Police Service and the Department of Child Safety (“the Department”) were again involved in investigating allegations that the father was sexually abusing the children and the mother was withholding the children and not letting them spend any time with the father at all. Not long after that, the matter was back in this Court, once again progressing through the pending cases list towards another trial and the two children spending time with their father on a very limited, supervised basis.
The matter then came into my docket. I heard it over five days in early July last year. In the trial that I presided over, the father appeared again without legal representation whilst the mother was represented by an even more experienced family law barrister than she had been previously. This time, a different ICL represented the best interests of the children. She instructed another extremely experienced family law barrister in this trial.
What was at stake this time?
At this trial, the mother’s case against the father was effectively the same as it had been before, but with a little more. She presented a case that the father had been systematically sexually abusing his son and that it had increased in severity when the father’s unsupervised time was introduced after Justice Tree’s Judgment was delivered. The mother’s case included further allegations that the paternal grandparents were complicit in the father’s sexual abuse of his son and also involved in the sexual abuse themselves. Her case also now included allegations that the father was sexually abusing their daughter as well.
Unsurprisingly, given the nature of her case, the mother argued for parenting orders that provide for the children to continue living with her and which give her sole parental responsibility for them. Critically, she argued for Orders that provide for the children to spend no time at all with the father. The mother’s own parents were totally and unquestionably supportive of her case.
The father’s case had also changed dramatically. Up to the end of the previous trial, the father had maintained a position that he simply wanted to have a relationship with his children that could be maintained through them spending regular time with him whilst living principally with their mother. He did not want to see them removed from her principal care. In fact, the ICL at the previous trial sought orders from Justice Tree that provided for the children to spend more unsupervised time with the father than the father himself had initially sought. However, as might be expected, at the end of the trial the father adopted the position advanced by the ICL. The Orders sought by the ICL at the end of that first trial were very much the Orders that Justice Tree ultimately made.
This time, at the trial before me, the father sought Orders that the children be moved to live in his full-time care and for him to be given sole parental responsibility for them. He also sought a moratorium on them spending time with the mother for six months. After that, he argued, they should spend supervised time with the mother for another six months before their time with her progressed to being unsupervised again.
At the end of the trial before me, the ICL was in lock-step with the father and also submitted that the parenting regime sought by the father is that which the Court should now put in place. Counsel for the ICL argued that they were the appropriate orders to make in order to protect the children from what the ICL submitted is the emotional abuse the children are being subjected to in the mother’s care through the maintenance and increase in severity of the allegations of sexual abuse and the consequential impediment to them having a meaningful relationship with their father. Through her counsel, the ICL was absolutely clear in her position that the children would not face an unacceptable risk of sexual or physical harm in the father’s unsupervised care.
The sheer awfulness of the decision the Court is faced with will now be obvious to any person reading these reasons. Any way it is looked at, the Court’s task could be described as one of determining the least “worst” option for this now 9 year old boy and his 6 year old sister. However, this is the sort of decision this Court is required to make on a daily basis.
How does the Court go about determining the Outcome?
In the nine years I have been a Judge of this Court, I, just like many of my judicial colleagues, have had to decide many parenting cases in which the central issue has been the determination of highly disputed allegations of sexual abuse of young children made by the mother of those children against the father of those children. This case is very much like many of those I have heard and determined before. My determinations in those cases have been various. In some, I have found sexual abuse to have occurred as alleged. In others, I have found that allowing children into the unsupervised care of their father would present them with an unacceptable risk of harm. In others again, I have found that sexual abuse has not occurred at all. This, like all of those, is another very difficult case.
In various ways, I have said the following things in judgments delivered in many of the cases I have previously decided. Again, these things bear repeating in these reasons.
The High Court has determined that parenting orders proceedings under the Family Law Act 1975 (Cth) (“the Act”) are not about parents enforcing a parental right to have a child live with or spend time with them. In parenting orders cases, the High Court has said this Court has a duty 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 this Court will:[1]
… give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [“custody” and “access” being the terms used in the legislation at the time of the High Court’s judgment in this case], but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.
[1] M v M (1988) 166 CLR 69, 76.
In that same case, the High Court also relevantly observed that:[2]
… 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.
(emphasis added)
[2] M v M (1988) 166 CLR 69, 76.
The Judges of the High Court also said:[3]
…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.
(emphasis added)
[3] M v M (1988) 166 CLR 69, 76.
The High Court Judges’ reference in that case 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 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 of the Act) when making the parenting orders the Court thinks “proper” (s 65D(1)).
As is well known, and as I have already alluded to, this Court hears a large number of parenting cases involving allegations of sexual abuse each year. Nevertheless, in deciding every single such case, it remains important to reflect upon the seriousness of the central factual issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of In the Marriage ofN and S (1996) FLC 92-655 (“N and S”) 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.
I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was over fourteen years ago in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W & W”). I have little doubt that a person subjected to sexual abuse as a child, particularly at the hands of an otherwise loving biological parent, will likely face psychological trauma dealing with that for the rest of their life. When I am appropriately satisfied that such abuse has happened, it is not difficult to persuade me that a child’s best interests are best served by not spending any time, even supervised time, with the abusive parent. That said though, I hasten to observe that the Judges of the High Court went on in their judgment in M v M (1988) 166 CLR 69 to expressly say (at 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 v Briginshaw (1938) 60 CLR 336, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:
Relevantly, their Honours continued (at 77-78) 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.
(emphasis added)
In the aftermath of that High Court decision, this process of determining and weighing risk has become widely known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court of this Court in W & W. Their Honours said (at [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.
(emphasis added)
At [105] of that judgment, the Judges of the Full Court, referring to the judgment of Fogarty J in N and S, 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?
As Tree J said at [48] in his judgment in this matter, Murphy J also discussed this question of risk assessment in his judgment in Harridge & Harridge [2010] FamCA 445. Having referred to N and S, his Honour adopted the following list of questions in relation to risk assessment:[5]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[5]Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Respectfully, as Tree J did, I also consider these to be useful questions to consider in the determination of this matter. Ultimately though, determining this case involves more than just determining whether or not the father has sexually abused the children or simply whether there would be an unacceptable risk of him sexually abusing the children if they spend unsupervised time with him. I am satisfied the proper parenting orders to be made in this case are ultimately to be determined by a process of considering all of the evidence against the “primary” and “additional” considerations mandated by s 60CC of the Act. In that process, in this case, of course, the most attention will be paid to the determination of whether the children, B and his sister, C, will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in their father’s care as their mother contends they will be, or, whether, on the other hand, they will be exposed to an unacceptable risk of psychological harm in their mother’s care if it is that they continue to present making allegations of sexual abuse that the Court might be satisfied has not happened and is not happening, which is how the father and the ICL present the case.
How did the mother present her case?
Apart from giving a very detailed and lengthy affidavit which included pages and pages of very careful transposing of diary entries into deposition form that conveyed “disclosures” (as statements made by children allegedly revealing they have been abused in a sexual way are called) made by both children to her and her mother, the mother also relied on an affidavit of her mother, as well as evidence from a Social Worker who had seen the child, B, a few times.
The involvement of that Social Worker in the case is noteworthy. That Social Worker, who is in private practice at D Town, first saw B in June 2015, a year before the earlier trial before Tree J. At that time, she was expressly retained through the solicitors who were then acting for the mother in the conduct of her case in this Court. The Social Worker was engaged specifically to interview B “because [the mother] was concerned that he was being abused in his father’s care”.[6] She was, thereby, effectively engaged as an adversarial expert witness to interview the boy and to report to those solicitors and potentially to the Court on the outcome of that interview if it assisted the mother’s case. B was four years and seven months old at that time. Neither the father nor the then ICL were involved in the engagement of the Social Worker or in the interview process. There is no evidence that the father even knew such an interview was going to take place before it happened. The mother took the child to that interview by herself.
[6]First paragraph of affidavit of Ms E filed 14 April 2016.
In a one page report prepared after that single interview of the child, the Social Worker, Ms E, said that the boy “spoke happily of many of his activities and experiences when with his mother”. She said that when he was asked to describe his experiences with his father, he said “that he did not like going to his father’s home”. She said that when asked the reasons why he did not like going there, the boy stated that “his father hurt him”. When he was asked “where”, he said “it was on the arm and leg and that it hurt a lot”. Ms E expressly said “B did not disclose that he was being sexually abused”. Ms E wrote that she then interviewed the mother who “appeared quite worried about the boy’s disclosures to her”. Ms E wrote that the mother told her that the boy had disclosed to her that his father had touched him on the “Willy”.
Ms E concluded that report by saying it was not possible to rely fully on the boy’s information. Nevertheless, Ms E said that she was sufficiently concerned by what she had heard to make a notification to the Department at that time.
Departmental records reflect one notification was received by the Department in June 2015. I am satisfied that must have been the notification made by Ms E. The Departmental record reflects that the notification included notice that the “notifier is aware that the child has disclosed that his father touched him on the willy”. I understand this to refer to Ms E informing the Department of that which the mother had told her, as Ms E herself had said in her written report, already referred to, that the mother had told her the boy had said his father had touched him on the “willy” but that the boy had made no disclosures of sexual abuse directly to Ms E in her interview of him.
All of that evidence was adduced at the first trial before Tree J, as were a Family Report and an updated Family Report prepared by Brisbane Social Worker, Ms F, at the request of the then ICL. In her final recommendations, Ms F had recommended that if the Court found that unsupervised time between the children and the father posed an unacceptable risk to the children, they should only have weekly supervised time with him. At the same time, she recommended that if that was the finding of the Court the children attend upon Ms E or some other practitioner recommended by Ms E “to undertake a Protective Behaviours Program” to be conducted at Ms E’s discretion.
As I understood the evidence before me, at the conclusion of the trial before Tree J, even though the ICL submitted that there should be a finding that the father did not pose an unacceptable risk to the children if they were spending unsupervised time with him, the ICL submitted that the children should nevertheless still attend upon Ms E for “protective behaviours counselling”. Although Justice Tree found that there was no unacceptable risk to the children in the father’s unsupervised care, he clearly accepted the submission that an order be made for protective behaviours counselling as he made an Order to that effect.[7] There was apparently no concern about the fact that Ms E had been previously retained as an adversarial expert witness by the mother and that the mother had told Ms E of the boy’s alleged disclosures to her or that Ms E had considered it appropriate to report concerns to the Department.
[7]Paragraph [10] of his Honour’s Orders of 13 June 2016.
Post-Judgment Developments
In her evidence before me, the mother asserted that the first post-2016 trial statement made by one of the children that can be described as a “disclosure” was after the children returned home from an overnight stay with the father on the weekend of 9-10 July 2016. The mother said C was on the toilet sometime after returning from that visit when she said, “Daddy go like this”, at the same time poking her finger towards her anus. The mother gave no other evidence about context or anything she did or said in response to that. That, in itself, is an interesting omission. It is difficult to consider that the mother said or did nothing in response.
The mother’s evidence went on to assert that the next “disclosure” came six weeks later, on Tuesday, 23 August 2016. First, she said that B was having a bath and turned to her saying “I am going to kill you”. She said she asked him why he would say that, to which he replied “Because daddy told me that on Saturday. Daddy said I have to grow up to be a bad boy, lie and hurt you mum. Daddy is trying to make me bad… We went to Grandpa’s farm on Saturday. I was made to sit on the bed in the dark. I was so scared. They didn’t even leave a toilet light on like you”. Then, the mother said that as B was putting on his pyjamas after his bath that night in her home he said “Daddy picked my bottom and did this to my willy”. She said that B then demonstrated on the bed, putting his bottom in the air and pointing his finger in and out of his anus, then demonstrating a masturbating motion with his penis. She said B then said “I told Daddy to stop and he hit me”. She said that she asked B where his sister was and he said “playing outside with Grandpa”. She said she asked B where he was, to which he replied “on the bed with Daddy, he took my pants off; I told Daddy to stop and he hit me and kept doing it, Daddy showed me his willy. Daddy broke my heart and my heart is hurting.” The mother said that she told B that no one is to touch his private parts as they belong to him and she said that he replied “Daddy did”.
The mother said in her trial affidavit that she received an email from Ms E on 26 August 2016 (just a few days after that disclosure was said to have been made by the boy) confirming an appointment on Monday, 12 September at 11.00 am. The mother gave oral evidence during the trial that she had made contact with Ms E’s office not long after Tree J’s judgment was delivered to commence the process of taking the children to the protective behaviours counselling. She said that Ms E was away at the time of that contact and the earliest the appointment could be made for, was 12 September. There was no other evidence as to the date upon which that appointment was first put in place. Ms E could not tell the Court when the appointment was made when she gave her oral evidence at the trial as she did not bring along to Court anything that could assist her with identifying that date.
The mother did give oral evidence of an additional communication exchange with Ms E prior to the first appointment with Ms E being confirmed. She said that when she emailed Ms E “in July or early August” (2016) to set up the protective behaviours counselling that Ms E had said that she, the mother, could do such protective counselling herself. The mother said in evidence that she responded to Ms E telling her that she did not wish to do it herself and that she then told Ms E “what was being said”. As the “counselling” was being sought for B, I consider it safe to find that the mother was referring to the alleged disclosures she said were being made by B. She said they were first made by him on 23 August 2016, so this contact with Ms E must have taken place after that date and before 26 August when the email confirming the 12 September appointment was sent to the mother by Ms E. The mother must have told Ms E of the boy’s recent disclosures to try to persuade Ms E to see the child. Ms E was obviously persuaded, as she then agreed to see the child and the first appointment was put in place for 12 September.
In a further email sent by Ms E to each of the parents dated 9 September 2016, already having been informed by the mother of the further disclosures made by B to her and having been persuaded by the mother to see him, Ms E told both parents the following:
I understand that I have been ordered me (sic) to meet with your son for the purpose of ensuring the provision of protective behaviours…
I advise that I will follow the Orders as directed by the Court, however in the event a child reveals any information that indicates there are risk factors in either parent household, I am required to notify the appropriate agency.
The parents already knew that was likely, of course, given the fact that Ms E had made a report to the Department in 2015 after seeing B once. Ms E’s email clearly reinforced that prospect.
There was no dispute at the trial that B was then seen by Ms E on three occasions in 2016 – 12 September, 15 October and 21 November. What was curious was that there was absolutely no evidence that C was taken to Ms E for protective behaviours counselling on any of the three occasions that B was taken, as paragraph [10] of Tree J’s orders had required. The reason for C not being taken went unexplained. It may have been because she was only three years old at the time, but I cannot be certain of that in the absence of any evidence about it.
According to the mother’s evidence, B then allegedly made a number of significant disclosures in the days between the appointment with Ms E being set up and actually first seeing her. In her trial affidavit, the mother gave evidence that on Tuesday, 30 August when she was putting B to bed he said to her “Daddy hurts my willy, he punches and pulls my willy.” She said that B demonstrated to her by punching himself in the groin and then pulling/stretching his penis as far as possible until it hurt. She said B said “Don’t tell daddy I told you or he will turn you into a bad mum and hurt you. Daddy said he will kill my whole family.” She said he started to cry when he said this. She said he continued with “Daddy said he wants to kill you, me and C, he hates us”. She said that he went on “I had a bad weekend at dads… Please don’t tell dad or he will hurt you”. She said that she reassured B that no one is going to be hurt and then told him that he can tell her anything as they do not have secrets. She said he responded “I only trust you Mum”. The mother said that B told her he needed her to lay with him until he fell asleep as he was scared.
The mother said that on Thursday, 1 September she was tucking B into bed when he said to her “Daddy hurts me all the time all over my body and private parts.” She said she asked him what were his private parts and that he responded “your willy and bottom Daddy will make you a bad mummy if I tell you everything.” The mother said she again reassured him before he said “Daddy hurts C and I protect her. I want to come home when I’m at Dad’s.” She said that he again asked her to lay with him until he fell asleep as he was scared.
The mother said that B woke during that night crying and saying “I had a nightmare Daddy killed you Mummy” and she said he wet the bed that night, too.
The mother said that on Sunday, 4 September after the children returned from spending the weekend with the father, B had outbursts of anger “for no reason that was apparent to [the mother]” and when putting him to bed he again asked her to lay with him so that he could get to sleep. She said that he said to her “Daddy hurt me again. He pulled my willy really hard in the bath, it really hurts me.” She said that he demonstrated again as he had done previously.
The mother said that on Sunday night, 11 September (the very night before B’s first 2016 appointment with Ms E), she was putting B to bed when he “pleaded to talk with me”. She said he said “Please, Mum, I need to tell you stuff. Dad and I play games I am not allowed to tell you about, but I want to.” She said she reassured him he could tell her anything. He said “Daddy and I play a game and it’s whose willy gets bigger”. She said B demonstrated masturbating as he was telling her this and said “I have to do this” and she said he also demonstrated “humping the bed”. She said he then said “Daddy picks my bottom” as he was pointing his finger back and forth at his anus. He said “Daddy said if I tell you, he will punch me in the face and hurt you mummy”. She said B was “distressed and upset” and said “Daddy taught me how to do it”.
B saw Ms E on 12 September and the mother said that later on that same day he said to the mother “Daddy hurts my private parts. Daddy is evil.”
The mother said in her trial affidavit that on Saturday, 17 September at 4.14 pm, she received an email from the father. It said:
Just gave B and C early bath as they are both tired and might go to bed early. I gave a washer to B and said “clean your willy”. He refused. I then cleaned him there. He said “you just touched my private parts. I’m telling.” I said “B I am your dad and sometimes I have to clean you.”
The mother said nothing about responding to that email. The mother then said that at 1.02 pm on Sunday, 18 September, she received another email from the father. It said:
Today while C was unwrapping her presents in the lounge with myself, mum and Mr S present, B got up to go to the toilet. I got up also off the floor to take C’s trainer seat off. As got up my hand touched B’s backside. He said “Hey you just touched my private parts, I’m telling.” He was told it was an accident.
The mother said that when B was having a bath that Sunday evening, 18 September, after having spent the weekend with his sister at the father’s place, B turned to her and said “Daddy touched my willy” and again demonstrated pulling his penis, saying “it hurt Mummy”.
The mother said that on Monday, 19 September, B said to her “Daddy said he is going to kill you and my whole family. He said he is going to smash N’s head in.” The mother said N is her newborn nephew, B’s maternal cousin. She said he went on “Daddy puts his finger in my bottom and smells it. Daddy said he will teach you to be a bad mummy if I tell you things.” She said she reassured B but he went on “Daddy said I’m not allowed to tell that lady anything and I have to keep it in my chest. Daddy is evil Mummy, he hurts us all the time.” She said that B asked her to stay with him until he fell asleep.
The mother said that B came home on Thursday, 22 September from some time with his father and he was “upset and angry”. She said he was playing a game when he said “I fucking died”. I told B never to use that language to which he responded “Daddy taught me, he said it today.”
The mother said that on Saturday, 1 October when she went to drop the children at the place of changeover, B did not want to get out of the car and said “I don’t want to go to Dad’s”. She said he did get out of the car but that as she was driving off, B chased the car yelling “mummy stop”. She said he was saying “Mummy I don’t want to go, open the door. Please mummy, I want to stay with you.”
The mother went on, saying on Sunday evening, 2 October when the children had come home, they were watching a movie together. She said B turned to her and said “Daddy played the dirty game again.” She said she asked “What dirty game?” She said B replied “the one where we see whose willy gets bigger”. She said he again demonstrated masturbating and went on to say “He hurt me too and punched me in the tummy. Daddy said I have to lie and say you, and nanny hurt me and not him. Daddy was bad on Saturday but on Sunday I taught him to be good.” She said she asked B how he taught his father and he replied “I told him he cannot hurt me or touch my private parts.”
The mother said that on 3 October B went into his bedroom and she saw him masturbating there. She said that she tried to distract him and asked him to do some colouring in with her and he said “Daddy taught me to do it”.
The mother said that on 9 October her mother told her, after the mother returned from work, that B had been masturbating in the bedroom and C had been “rubbing her genitals next to him”.
The mother said that on Friday, 21 October, C went to the toilet and said “Daddy goes in my bottom” and the mother said the child demonstrated finger poking at her bottom. The mother added that C has been “demonstrating rude gestures and has begun to remove her clothing at times to moon you”. She also said that C has also said “Daddy punch me in the tummy”.
The mother went on to say that on 13 November, the children arrived home from a weekend with their father and B said “Daddy took photos of my private parts” and pointed to his penis. She said she asked B if he had his clothes on and he said “No”. She asked if the father took photos of C as well and he replied “yes, she had no clothes on, too.”
Ms E’s Report
Ms E provided a brief report of her 2016 involvement with the family to the ICL in late 2018. That was attached to an affidavit that the ICL filed on 26 November 2018 but upon which the mother, rather than the ICL, relied at the trial before me.
In that report, Ms E wrote that she had met with B three times from September to November 2016 and on each occasion interviewed him “independently”. I understood “independently” in that context to mean she saw him by himself without either of his parents present in the room with them at the time.
Ms E reported that on each of the three occasions she met with B he reported to her that his father “touches him inappropriately; that he hits him and that he is fearful of him”. Specifically, she reported that on 12 September B had told her that his father likes to touch his “willie.” She quoted him as saying “He squeezes it lots of times”. She wrote that she asked B what he was doing when his father squeezed his willie and the boy responded that he is sitting down and “he squeezes if [sic] for a long time. It hurts because he squeezes if [sic] really hard. I say no and he keeps doing it.” Ms E reported that she asked B what his father would do if he said “no” to him whenever he touched his “willie” and the boy said to her that his father would “smack [him]”. She asked him where did his father smack him and he said “on the bottom”.
Ms E reported that she asked B if anyone ever hurts his feelings and the boy responded by saying that his father hurts his feelings when he says he is “going to kill my Mum”.
Ms E reported that on the second occasion she also saw both of the parents. Ms E said she had determined to ask the father to attend with B to have the father reassure him that he would not be hit and that he did not have to keep secrets. She met the father and spoke with him alone before seeing him and B together. She reported that the father told her that he had accidentally touched B’s “private parts”. She reported he told her that he had told B to have a bath when he was staying over at the father’s home and he told him to wash himself. Ms E reported the father saying that B did not wash himself so he washed him and “washed his willie”. This is the same matter the father reported to the mother by email. Ms E reported the father told her that at this point B said to him “Daddy, you touched my willie”. Ms E reported that the father told her he wanted her to know this in the event that B mentioned that his father had touched him. Ms E reported that she did tell the father that B was in fact “making such claims” and explained to the father that B required reassurance that he had no reason to fear his father’s behaviour towards him.
Ms E reported that she then saw B and the father together and that the father did reassure B that he would not be hit and that B could wash “his own willie” when in the father’s care. Ms E said that during this joint session, B seemed, at one point, to be about to say something but he “turned his face away and into the chair and then laughed uncharacteristically.” She provided no opinion of what she made of that.
Ms E also spoke with the mother on that October occasion. She reported that the mother told her that B’s school had contacted her to inform her that B had been masturbating in the classroom. Ms E reported that she suggested to the mother that the behaviour be managed by the school guidance officer.
Ms E reported that on the occasion of the November appointment (21 November), B walked into her office, “and without any external stimuli”, said to her “Daddy has been telling me not to tell you stuff but I’m going to tell you”. Ms E reported that she asked him what it was he was being told to keep secret and he responded “Dad takes photos of my private parts”. She said she asked him where he is when his father takes photographs of him and he responded “in the bedroom”. She said she asked him whether this happened at night time or in the day time to which he responded “day time”. She said she asked him if his father uses a phone or a camera to photograph him to which he said it was a camera. She said she asked him if it was a big camera or a little camera and that he then indicated spatially using his hands the size of the camera. She said she then asked him if he had his clothes on when his father photographed him to which he responded “they are on, silly. He has been wanting me to take them off and I don’t. I say stop like this.” She said he then put his arm out with his hand indicating a stop sign and that the boy then said “and he doesn’t”.
I observe here that the mother’s evidence was that the boy had told her on 13 November (only a week before he saw Ms E) that the father had been taking photographs of his private parts and of his sister and that they were both naked at the time. Here, according to Ms E, a week later, the boy was seemingly scoffing at the idea that he was being photographed with his clothes off.
Ms E reported that B then spontaneously stated that his father also “touches my bottom with his finger” and then B leaned forward and pointed to his anus with his finger. Ms E said that she then asked B what would happen if he asked his father to stop to which he responded that his father would hit him. Ms E reported that a little later she asked B if anyone ever says mean things and he responded “Yes. Daddy. He says he hates Mummy. Says Mummy is disgraceful”. Ms E reported that she asked B if his mother ever said anything mean about his father, to which he responded “No. She is a good person.”
Ms E reported that she again asked B if anyone ever hurts him and he stated that his father hits him in the side and he pointed to the area of his right upper abdomen.
Ms E reported that she informed the mother that she “felt compelled to make a notification to the Department of Child Safety”. Ms E reported that the mother became spontaneously tearful and said “I don’t want to lose my kids.” Ms E wrote further that the mother said that was “because of her experience that Final Orders prevented her from pursuing anything that might indicate behaviours on her part that could be construed as vexatious.” Ms E also wrote that the mother told her that B reports to her regularly that his father abuses him on his return after spending the weekend with him, saying that he simply “comes out with it”. Ms E finished by reporting that the mother said she is also concerned about the safety of C as she “has been pulling her buttocks apart atypically”.
Ms E made the notification to the Department that she said she felt compelled to make. Though, of course, Departmental records do not identify Ms E as the notifier, I am satisfied she made the notification that Departmental records do reflect was made on Wednesday, 23 November 2016. The Department’s records reflect that the content of the notification included much of the detail reported by Ms E in her written report I have already referred to and quoted from.
It must be observed here that despite all of the evidence of the mother about the disclosures that the two children were making to her between the date of the first trial and the reporting by Ms E to the Department, the mother was still sending the two children to spend unsupervised time with the father pursuant to Tree J’s Orders for all those months. She had not stopped the visits. She said that she feared losing the care of her children if she did. However, neither had she told the father anything of the alleged disclosures. Neither of her parents had either. None of them had told him anything of what they believed he was doing to the children. None of them had warned him to stop doing any of that or face the consequences. They had not said anything to either of the paternal grandparents either. The mother had not made her own notification to the Department or to the Queensland Police Service. Neither had either of her parents. As I have already pointed out though, the mother did know before she took B to his first appointment with Ms E that if he made disclosures to Ms E that Ms E would report those disclosures to the Department. Ms E had told both parents that before she saw the boy. The mother also knew that from her 2015 experience. There can be little doubt that she expected the boy would disclose to Ms E and that Ms E would notify the authorities.
The Involvement of the Authorities
Consequent upon Ms E’s notification, on the afternoon of Thursday, 24 November 2016, two officers of the Department of Child Safety and a police detective from the D Town Child Protection and Investigation Unit (“the CPIU”) went to the mother’s home. The detective conducted an interview with the child, B, in the presence of the two Departmental officers. That interview lasted for about an hour and was recorded. An audio CD of the recording was adduced into evidence and played at the trial before me. I have listened to it again a number of times in my chambers.
At the start of that interview, B told the police officer that his father had “been mean to [him]” and “takes photos of my private parts”. He blamed his father for making him splash water when he was having a bath before then going on to say when asked how his father had been mean to him, that “he has been like .. touching my front private part and my back private part” and “he has been putting his finger into my bottom, like my back private part”.
When asked when the last time was that it happened, the boy said “on the weekend”. He said “he touched in my back private part and yeah, also he like… he be’d bossy to me.” The boy identified his bottom as his “back private part” and then said “he gives me icy poles and then snatches them back off me”. When asked again about what happens with the “back private part” the boy said “he slaps it” and then, a little later, he said “he touched it with his finger”. He said that it happened “in the bedroom” and then he described the bedroom by reference to the colour of the curtains and the dinosaurs on the shelf.
The boy’s demeanour, from what I could discern, was relaxed and comfortable as he relayed all of this information. I could not hear any distress or fear in him. That happy, relaxed, co-operative demeanour did not change at all throughout the full sixty minutes of the interview.
When asked “how long did it go for?” the boy responded “twenty minutes” and then said “on the other day, on Sunday, he actually did it a longer time, it was actually like fifty minutes”. When asked if he knew how long twenty minutes is, the boy said “no”. Then, when asked if it is a long time, the boy said “it is, as 20 is more than 1”. He even said “50 is bigger than 20”.
The detective asked the boy what his father actually did with his hand and the boy said “he, like, put it into my back private part”. The boy was asked what his father was doing in those twenty minutes and he said:
Pointing his finger, like he did this, into my back private part. He was putting in there … and it’s called your bottom. It’s called that and he put his finger in his bottom, ... my bottom, my back private part, but it belongs all to me because it is my private part.
Notes taken by one of the adults at the interview were transcribed and were in evidence. They noted that when the child said these last words he held up his index finger and leant forward and demonstrated inserting his finger into his bottom.
The detective said to him “you said that he put it in your bottom” and the boy responded “yes…, but each time when he did it he slowly pulled it out, like, yeah, ”. He was then asked “and how many times do you think he put his finger in your bottom?” and he responded “umm, twenty times”. The detective said “twenty times?” and the boy said “yep, twenty times”. He was then asked what he was wearing. He said “clothes” and when asked “what clothes?” the boy said “dinosaur clothes” and then went on to talk about something that he describes as really funny – a dinosaur surfing – on his clothes.
There was a break after twenty minutes of interviewing whilst the boy went to the toilet. When the interview was restarted, the boy was reminded of what he had said before. He told the police officer he had never done the same thing to his father as he is a good boy. He then told the police officer, when asked about the time it went for “fifty minutes”, that his father put his finger in his bottom and “zoomed it out”. He was then asked about where it had happened on this occasion and said it was in the bedroom near the clothing.
He was asked if he was on his father’s bed, to which he responded “yes”. He then said “on my bed” but went on and corrected the police officer when he said “on your bed?” saying “no, I didn’t say your, … mine. It was his”. Then he went on to say he was jumping on his own bed, really high and his father had tripped him over when he was landing. He said his father pushed him backwards and he hit his head on the wall.
The boy’s thoughts were clearly straying. He started talking about the wall and the colour. It became clear that the boy’s bed at his father’s place is in the same room as his father’s bed and that his sister’s bed is in that room, too. The boy then was brought back to the story by the police officer and he said he was asleep and his father woke him up and slammed him into the back of his bed to wake him up. He said his father “slashed” him. He then described that as being held and pushed into something – “slashed”. He said he was jumping up and down on his bed and his father “swiped” his legs as he was jumping and ruined his jumping. Then he said he was lying down and that his father twisted him over the other side and then did it.
He said his father “flipped” him over and he was still lying on the bed and his face was right down on the cushion and his dad was holding his neck really tight but that he (B) just “ripped it off” – I understood him to be referring to his father’s hands. He then said “in two seconds, I actually ripped it off.”
He was asked if anyone else was home on that last weekend and he said “no, because my Grandma and Grandad had to go out for a wedding, to talk to someone”.
He was asked if his father ever talks about touching his front and back private parts and said “yes”. He was asked “what does he say?” and he responded “I want to touch your willy. That means your front private part”.
When asked “what else does he say?” the boy said “umm, he says he wants to like get his finger all the way into my front private part, like do it, like put it all the way into my front private part and then pull it out and that would really hurt if he does that, I know that.” The detective then said “what does he say he wants to do?” and the boy said “put his finger in my bottom and then he pulls it out and then his finger leaves all the way to my willy, like that, he wants to do that. But I know that will really hurt, I know that.” The detective asked “what does he want to do?” and the boy went on to say “he wants to put his finger, this, in my bottom, all the way to my willy. That is my front private part”. The police officer says “ahh, all the way to your front private part” and the boy says “yep and he wants to get it out, do you understand?” The police officer says “why does he want to do that?” and the boy says “because he wants to hurt me…. I know that would really hurt.” The detective asked “how do you know that?” and the boy responded “because my teacher told me”.
The boy then goes on to say that his father wants him to get hurt and had put a hole in his leg and scratched him.
He was asked if there was anything else and the boy said “no that’s it what my dad does” to which the detective said “well I’ve been told that he also grabs your willy and squeezes”. The boy responded “yeah, I forget about that. I actually forgot.” The boy went on to say “he grabs it and squeezes it as hard as he can. It really stings”. The boy said “he put his finger in there and then he just shook it around, like he shaked, that is another word”. He said “he always does it in the bedroom, so my grandma and grandad doesn’t see it. That’s all”. He was asked how many times his father had done that to him and he said “um, like, twelve times”. When asked how he knows it was twelve times, the boy said “because he just tells me that. Twelve times, he just said that every time”.
He said the last time that his father did that was “last Saturday” and that it had happened in the laundry at his father’s house as there is a couch in there, where he was sitting brushing his hair.
The detective then asked the boy when his dad touches his back private part “where exactly does his finger go in your bottom?’ and the boy said “No your willy is your front private part here …. And also my dad like, like, like put it in my front private part here like this. Put it in there and I didn’t like it. I hated it because it stinged.”
He was then asked “so when your dad touches your back private part, where does his finger go?” The boy responded “um, in my, in here, my front private part.” He was asked “so it goes inside you . ..and that goes to your front private part, does it?” The boy said “no, in my front private part. Like, do you know the front of yourself? There is a private part at the front, it’s your willy. That’s its name. And it’s really bad, but, but, he just like does that all the time”. He is then asked “so does he put his finger in your bottom?” The boy said “No, in my front private part. Do you know your front of yourself? He puts it in your front private part, there’s a like a private part right in front of me, it is like this tall, like it’s your willy. Yeah and you, like, you just have to … he just does, like, put it in there and I don’t like it and I say “stop it, I don’t like it” and I shout it out really loud and my Grandma and Grandad can even hear it from out there.”
He was then asked “so you know when you go to the toilet and do a poo, … does your dad put his finger…” The boy interjected and said “no, where you do wee wees, he put his finger in there, not your back private part, no, not there”. The detective said “so, he puts his finger in your front private part where the wee wee comes out?” and the boy said “ok, yeah, that is what he did. I give you more like, more information”.
The detective then moved on to allegations about the father taking photos of the boy’s private parts. He asked the boy to tell him everything that happens when his father takes photos of his private parts. The boy said “he gets his big camera and he takes photos, but I have my pants off because he takes it off and he wants me to do it”. He is asked the colour of the camera and the boy said it is “blue and red, at the front its red and at the back its blue and there’s orange and aqua on the sides. That is what his camera looks like and he loves it. He just wants to take photos all the time with it.”
The boy said that his father takes photos of him when he goes to the toilet and does “poo poos and wee wees”. He said he takes the photos in the bathroom where the toilet is. When asked how many times he has taken photos of him he says “nineteen”. He said, when asked, is he wearing clothes at these times, he said “no, because I have to do wee wees and poo poos, that is what he takes photos of.” He was asked if his father says anything when taking these photos and he said “yes, he says “ha ha, I’m taking photos of you”, that is what he just says.” Then the boy started saying that his father has a monster mask that he wears to scare the boy. He then went into a detailed description of a mask and the suit that he said his father wears when scaring him, down to the claws on the end of his father’s hands.
The detective went on to ask him “does he ever show anyone these photos?” and the boy said “yes, Grandma and Grandad, of course”. The boy went on “he like gets the photo came on and he just shows everyone, not everyone in my family, just everybody in his family, but it is only Grandma and Grandad”. The boy then went on to describe the process by which his father shows him the photographs by letting him look at them on the back of the camera and using his finger to swipe sideways to move on to look at the next photo. When asked how many times his father has taken photos of him in the bedroom, the boy said “like nineteen times”.
The detective then told the boy he has also been told that his dad hits him. The boy said “oh yeah, I forgot about that still. Yeah, he slaps me on the knees, slap me on the neck and he also punches me. And that is how I get all these bruises and cuts. He like punches my sore, that I got from him. It really hurts. It really stings. It really really, really hurts. He punches my bruises. He keeps on punching me and that is how you get bruises.” When asked why his father punches him the boy said because “he wants me to get all kinds of bruises. Because he doesn’t like us.” He then went on to tell the detective that “the baddest thing ever” his father does to him is to slap him on the face. He said “he actually slaps my face. That really happens to me it really does”. He said that has happened “probably about thirty times, 3 – 0”. When asked why his father does that to him he said “because he wants me to get bruises on my face”. The boy was asked had he told anyone about all these things his dad does to him and he said he had told his mother, his “nan” and his “pa pa” (his maternal grandparents) and his maternal aunty and uncle.
When asked whether anybody told him what to say to the police, the boy said “Yes, that he doesn’t want me to tell you, but I did, I broke it. He doesn’t want me to tell you but I did”. He was then asked “who doesn’t want you to tell?” and he responded “My dad. He said don’t tell the police and I did tell you, I did tell you, I didn’t listen to it, I ignored it”. He was then asked “has anyone else told you what to say?” and he answered “no, I think that is it”.
The detective then finished the interview with discussion about the right to feel safe and the need to tell someone if he does not feel safe.
The mother gave evidence that the officers who attended her home that day and conducted the interview with B spoke with her after the interview and told her a little about the subject matter, including that it was sexual in nature and that the children should have no contact with the father at that stage. The evidence satisfies me that one of the Departmental Child Safety Officers, probably the one with primary Departmental responsibility for the investigation, informed the mother at that time that B should not be spending time in the father’s care that coming weekend and that if she allowed the children to go into the father’s unsupervised care and the Department found out, the children might be removed by the Department from his care.
The mother said that the next day, 25 November 2016, the police officer contacted her and asked her if she knew if the father had any “external hard drives, USB sticks or camera cards” and where he may keep them. She said she told the officer that the father did own those things and had kept them in his home and at work during their relationship.
The mother also said that the same day, 25 November 2016, she received a call from the Child Safety Officer who was conducting the investigation, asking her of her intentions in respect of the forthcoming weekend’s scheduled visit of the children to their father. The mother said that the officer told her she could not tell her to breach a Family Court order but that if there were any changes in the care of the children she was obliged to inform the Department immediately and they would remove the children from the father’s care. The mother said she told the officer that she did not intend handing the children over to the father. Later that same day, the mother received a voice message from another Departmental officer informing her that the father would not be collecting the children for their weekend time with him the next day. I am satisfied that must have been a decision the father made after learning of the investigation, presumably that evening after police came to his home.
Execution of Search Warrant at Father’s home and Interview of the Father
That evening, 25 November 2016, a team of police officers, led by the detective from the CPIU who had interviewed the child the day before and who had spoken to the mother again earlier that same day, executed a search warrant, unannounced, at the father’s home. Police records confirm that they did not locate a camera such as had been described by the boy in the interview. Police records also say:
Further, all portable hard drives, usb sticks camera sd cards, mobile phone, I-pads, laptop computers owned by the [father] were either examined during the search warrant using ‘Orion’ or later examined at the D Town police stations and nil photographs were located of the victim child being nude urinating or defecating on the toilet as described by the victim child. NIL CEM [Child Exploitation Material] either was also located.
Records adduced into evidence by the ICL reflect that the devices seized by the police were a USB stick, two external hard drives, an Apple laptop computer and a Galaxy mobile phone.
I observe here that the father is a public servant. He voluntarily participated in a formal record of interview with the police later that evening. A DVD of that interview was adduced into evidence and played in Court at the trial. I have watched it again in my chambers since then. The father denied the allegations that were put to him in the way that the boy disclosed in his interview the day before. He told police about the proceedings he has been involved in with the mother in this Court since soon after their separation and he told them that he considered this to be yet another “vexatious complaint” by the mother. He told the police that he believed the mother was “coaching” B to say the things that he was saying. He told the police that he does not smack the children at all when they are in his care but rather uses the “time out” method of discipline. He told the police that he regularly records the child’s injuries in a web based communication platform that he and the mother use to communicate about the children.
The father was not charged with any offence at any time after that interview, according to police records “due to a lack of evidence”. The police ultimately returned things to him that they had taken from his home during the execution of the Search Warrant. I consider it quite significant that no inappropriate photographs of the children were found by the investigating police on any of the electronic devices of the father and no other child exploitation material was found either.
Police records adduced into evidence reflect that the CPIU detective who had the carriage of the investigation entered a report into the police computer system on the evening of 27 November 2016 which included the following:
Unfound the report. The matter has been finalised as: Investigations indicate highly doubtful the offence occurred. Investigations reveal that it is highly doubtful the offence occurred because: This matter has now been fully investigated by the D Town CPIU, and can be unfounded. A PPRA Search Warrant was executed at the suspect’s home address on the evening of the 25/11/2016 and did not locate the “Red/Blue/Orange/Aqua” coloured camera as described by the victim child.
There was more included in the report that shed light on the basis of the police determining not to proceed with any charges against the father, including a written assertion that the Department and the “Family Law Court” have “serious concerns that the mother of the victim has possibly been ‘coaching’ her child in the past to make disclosures about his father touching him inappropriately”.
Another Interview by Departmental Officers
On 28 November 2016, the mother, the two children and the maternal grandmother were interviewed by Departmental officers at the Department’s office. That interview was set up at the request of the Departmental officers. The mother provided them with Tree J’s judgment, her own trial affidavit that she relied upon at that trial, and the diary she kept in which she made notes of the things she said B disclosed to her. Copies of those were taken by the officers and retained on their records. The mother was interviewed separately. B was then interviewed separately and then the maternal grandmother was interviewed separately. C was not interviewed.
The next day the Child Safety Officer handling the case contacted the mother and sought and obtained her consent to copies of the documents she had provided being made available to the police.
The mother was told by the Child Safety Officer that it was considered that there was enough evidence upon which to base an application to the Children’s Court for orders under the Child Protection Act 1999 (Qld) and that an application was being prepared in conjunction with the office of the Director of Child Protection Litigation. The mother said she was told that the father and his parents were also to be interviewed later that week.
The same day, the Child Safety Officer spoke by telephone with the father. Departmental notes record that the father told the officer he would not have contact with the children for the period of the investigation and assessment. It is recorded that the father told the Officer that he had been informed by the CPIU officers that the CPIU would have no further involvement with the family and the CPIU officer had gained the impression that the boy had been “coached”.
Separation of this former couple occurred when the mother felt betrayed by the father and his secrecy about a number of significant matters, sufficient to end the relationship. Those matters were dealt with in detail in Tree J’s earlier judgment and I do not consider it necessary to go over them again here, other than to say I have had regard to them when determining this case and that they do not persuade me that the father presents an unacceptable risk to the children. Those matters, not unsurprisingly, destroyed the mother’s trust in the father and her love for him. None of that trust has ever been recovered and, unfortunately, the mother has not been able to shield the children from that overpowering mistrust of the father. I am satisfied that mistrust has, however, prevented the mother from being able to objectively and critically assess and deal with matters of complaint against the father as and when they have been raised and discussed with the children, compounding and exacerbating the problem to the ongoing emotional detriment of the children.
I accept the submission of the ICL based on the opinion of the family report writer that the Court should move the children to live with the father on a full-time basis as the Court would be satisfied that the mother is unable to let go of her beliefs, objectively evaluate all of the evidence and to shield her children from the emotional harm being caused to them by the continual raising of allegations of abuse that has not happened. I am so satisfied.
I have given a great deal of thought to the impact that moving the children’s primary place of residence will have on them. It will be significant and will take some adjustment. I am quite satisfied that the father, capably and lovingly supported by his parents, will be able to manage the difficulties of the transition and will seek out professional assistance when necessary. He will make appropriate arrangements with his employer and they will be able to accommodate his parenting needs to a suitable extent. His parents will be around to help out where his work commitments create a shortfall in adult care for the children.
I accept the opinion of the family report writer that leaving the children with the mother and making orders as Tree J did for the children to simply spend regular unsupervised time with the father will result in a continuation and probable worsening of the allegations and that the emotional harm that would be caused to the children by that “would far outweigh the impact of a change of their primary living arrangements”.
I will make parenting orders that include an order that the children live with the father.
Parental Responsibility
The ICL also submitted that the sole parental responsibility for the two children should be conferred on the father. Of course, section 61DA of the Act provides for the application of a presumption that it is in the best interests of children for the children’s parents to have equal shared parental responsibility for those children when making a parenting order. Relevantly for this case, section 61DA(4) of the Act permits the presumption to be rebutted when the Court is satisfied by evidence that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
If an order is made conferring equal shared parental responsibility for children on the parents, section 65DAC of the Act then applies. That section requires three things then of the parents where the exercise of the parental responsibility involves making a decision about a major long-term issue (as defined in section 4 of the Act) in relation to the children, or one of them. The order requires each of the parents to consult the other in relation to the decision to be made. It also requires each of the parents to make “a genuine effort to come to a joint decision about that issue”. Finally, the decision is required to be made jointly by those persons.
The corollary of the last of those requirements is that the decision, if not made jointly by the parents, cannot be made unilaterally at all by either of them and unless and until they made it jointly, it could only otherwise be made by one of the Courts with jurisdiction to do so.
In the circumstances of this case, I consider that it would be a recipe for disaster to require decisions about a major long-term issue pertaining to such things as the children’s health and education to have to be made jointly by the parents where the evidence satisfies me that they do not communicate with each other at all and where there is such profound mistrust of the father by the mother. As I have determined that the children should be moved to live in the father’s care, I consider it in their best interests and appropriate for the father to have sole parental responsibility for the children. I will exclude decisions about the children’s names and changes to their living arrangements that make it significantly more difficult for them to spend time with their mother from the matters about which the father will have sole parental responsibility. It is not in the children’s best interests for the father to have sole parental responsibility for those decisions.
As the ICL submitted, however, the Orders will require the father to advise the mother by email about decisions he wishes to make in exercise of parental responsibility and his reasons for wanting to make the decision that he does and seek out the mother’s input in respect of the proposed decision. The mother may then notify the father of her views about the proposed decision, any alternative proposal and her reasons. The father will be required to give consideration to the mother’s views and proposal but will have sole responsibility for making the final decision whether that is by agreement or otherwise. That way the mother will still have input but will not be able to veto the decision if she does not agree with it and the father does not accept her views or any proposed changes. I consider that to be in the children’s best interests.
The Children’s Time with the Mother
I also accept the submission of the ICL based on the evidence of Ms J that there should be a period of time after the transition of the children to the care of the father during which the children should spend no time with the mother at all. That will be appropriate to let the children and the father settle into their new care regime without distraction and risk of further allegations being raised by the mother. The recommendation of Ms J was for that to be for a period of six months. I accept that as appropriate in all the circumstances of this case. Without such a moratorium, I consider the children will not have the opportunity to settle emotionally into the care of the father without the likelihood of allegations of abuse arising again straight away. However, I will permit the parties to agree on a reduction in that moratorium period if they consider it appropriate at the time.
Ms J also gave evidence that for a further period of six months after the children began spending time with the mother again that time should be supervised. The ICL submitted that such supervision should also take place at the same place as the father’s supervised time has been taking place and that the mother should pay for it. I do not consider that it must take place there, but do not consider that it must not. I will leave that decision for the mother, the father and the ICL to make at the appropriate time. It could be supervised by a commercial provider or at a Children’s Contact Centre, if cost is prohibitive.
However, the ICL submitted that supervision of the children’s time with the mother should take place for twelve months not six. The ICL also submitted that the reintroduction of unsupervised time after that twelve month period should also be conditioned upon the mother engaging in the meantime with “a suitably qualified therapist” to assist her to manage her grief and loss and to adjust to the children being in the principal care of the father and to “have a shift in mindset in relation to allegations of sexual and physical abuse by the father to the children”. Not only did the ICL submit that the mother should be ordered to have such therapeutic counselling but also that a transition from supervised to unsupervised time be conditional upon the mother obtaining a report from the therapist “confirming that she has successfully undertaken therapy” and having provided a copy of the report to the father. Further, the ICL submitted that the reintroduction of unsupervised time with the mother should also be conditioned upon the mother completing a parenting counselling program called “Circle of Security”.
Ms J said, when asked questions by counsel for the ICL during the trial, that as the mother has held her firm views about the father since 2014 she would need intensive psychological intervention to change her views and that such intervention would take some time or the allegations would likely re-present.
I am not persuaded that there should be time limits put on the supervision that the children should have with the mother after the six month period of no time with her expires. Neither am I persuaded to make an order now that conditions the reintroduction of unsupervised time with the mother for the children upon the mother having the psychological therapy that has been suggested will be necessary for any change of mindset and obtaining a report that she has “successfully undertaken” that therapy and completed another parenting course.
I am quite satisfied that the father appreciates the children’s need to have a meaningful relationship with the mother and the mother’s extended family. I am satisfied that he will act appropriately in the future to facilitate that, to encourage that and to promote it. As I observed, he did not initially seek to remove the children from the mother’s principal care. The circumstances in which the mother continued to make increasingly serious allegations against him are what prompted him to seek orders moving the children to his principal care, so as to shield them from ongoing emotional harm. I do not consider that the father is motivated to act out of spite or malice towards the mother. I am satisfied that he would exercise appropriate judgment based on the evidence presented to him from time to time as to whether or not it is in the children’s best interests to re-commence spending unsupervised time with the mother in the future.
Both the mother and the father will now be aware of all of the expert opinion evidence in this case. They will now be aware that the mother needs to have some intensive therapeutic counselling over a period of time to address her longstanding mindset. I consider it to be in the best interests of the children for their time with their mother, when it is reintroduced after six months, to continue to be supervised at the mother’s expense until the mother and the father agree to change it to unsupervised time. The mother will appreciate that she will have to persuade the father that the children are no longer at risk of being emotionally harmed by allegations of sexual abuse of them by him being raised again. She will appreciate that she will most likely need to show him evidence of having had the psychotherapy that was discussed in the trial and convince him that it has had effect upon her. If she is able to do that, I expect the father will let the children begin to spend unsupervised time with her.
Of course, if the mother does address this issue by undertaking psychotherapy to positive effect and she considers the father unreasonably withholds the children from commencing unsupervised time with her despite all the evidence she provides him with, it will then be a matter for her to decide whether or not she should seek to invoke the jurisdiction of this Court again in an attempt to obtain fresh parenting orders that permit of unsupervised time. She will, no doubt, be advised about the principle that emerged from the case of Rice v Asplund (1979) FLC 90-725 and cases that have followed it since and the need to put evidence before the Court on any fresh application of a change in circumstances since this decision, such as completion of the intensive psychotherapy spoken about.
I consider that the appropriate way to deal with future re-commencement of the children’s unsupervised time with the mother, rather than setting fixed time limits and other set pre-conditions.
I will give the mother liberty to give copies of Ms J’s family report, Dr M’s report, Tree J’s judgment and this judgment to any therapist she determines to attend upon so that the therapist may give professional consideration to each of those documents in the process of providing therapy to the mother.
Transition Arrangements
I have been particularly concerned about this aspect of this matter. I have always been concerned about the likely reaction of the mother and her parents to Orders requiring the children to be moved to the father’s full-time care. Those concerns have arisen out of my consideration of the probability that they would be unable to shield the children from the emotional trauma likely to arise immediately on learning of the outcome and that the children would suffer such emotional trauma, even if I ordered the mother and the maternal grandparents not to tell the children or discuss it with them. I had considered making an order, prior to delivering judgment, for the mother to bring the children in to the Child Dispute Services section of the Court and for them to remain there in the care of a Family Consultant whilst I delivered judgment, after which the children could be delivered into the care of the father. I decided against that because I was satisfied that the mother would quickly realise what was going to be happening, with the children still likely to be exposed to the same emotional trauma.
On Tuesday, 18 February 2020, all three parties were notified of my intention to deliver judgment at 10:00 am on Thursday, 20 February 2020. At 9:04 am on Wednesday, 19 February 2020, my Administrative Associate received an email from the ICL. The ICL did not copy the mother or the father into that email. After reading the contents of that email, her decision not to copy them in can be seen to have been a sensible one. The email was brought to my attention by my Associate. I have made it an exhibit in the trial, so that it forms part of the record of the trial proceedings. It reads as follows:
Dear Associate,
As His Honour will be aware Ms Fox is the Independent Children’s Lawyer in relation to this matter.
We note that His Honour is delivering Judgment tomorrow and that no appearance is required by the Parties.
Please see below a copy of an email received yesterday – 18 February at 7.23pm from Ms R who is supervising the Children’s time with the Father. The email from Ms R outlines her concerns and no further comment will be made by the Independent Children’s Lawyer.
However, given Ms R’s concerns the Independent Children’s Lawyer considers it may be appropriate to provide a copy of this email to His Honour.
A copy of this email has not been cc’ed to either party.
Yours faithfully
[The ICL]
The email from Ms R said this:
I have just been told that judgement is on Thursday at 10am and just via email. I know this is out of your control but as I said months ago I am very concerned for the children if the reversal is granted and they are in mum’s care at this time. It doesn’t sound like it has been advised they are with you or a court consultant for the reading of the orders and for a potential handover. Mum is very confident this is going her way and the enmeshed relationship with the grandparents is a huge concern to me, what they would say to the children and if they would even follow a reversal order.
Anyways, I just had to send this as I would hate something to happen that could have been prevented.
Thanks,
(The Supervisor)
I gave consideration to that information and what the appropriate response should be. I asked my Administrative Associate to write to the ICL only to ask her if she could advise of the next scheduled time for the father to have supervised time with the children at the commercial supervisor’s premises. The email my Associate sent to the ICL and the ICL’s response were as follows:
[ICL]
In light of your email below [the one quoted above], his Honour has asked if you could please advise of the next scheduled appointment time for the father to have supervised time with the children at L Group, with a view to possibly delaying the delivery of Judgment until that time.
Regards,
[Associate]
Dear Associate,
[The Supervisor] has advised that the next Scheduled Supervision is Monday 24th February 4pm – 6pm .
Yours faithfully,
[ICL]
Consequently, I determined to postpone the delivery of this judgment so that it could be delivered during the scheduled supervision on Monday, 24 February after the children were in the supervised care of the father and before they were returned to the mother at the end of that visit. I determined not to notify the mother and the father of that particular decision but rather to have my Associate write to all three parties and advise them that delivery of the judgment was postponed to a later date of which they would be advised. That email said this:
I refer to my email below. [The initial email advising the parties that judgment was to be delivered on Thursday, 20 February 2020.]
Due to unforeseen circumstances, the delivery of judgment will be adjourned to another date and time in the near future. You will be advised when the matter will be re-listed.
Regards
[Associate]
I then had my Associate write solely to the ICL again in the following terms:-
Dear [ICL],
You would have seen notice that delivery of judgment has been postponed.
Please be advised that the Court will be contacting you next Monday at around 4:30 pm to ask if you can confirm that the children are in the supervised care of the father at that time.
Regards,
[Associate]
All of the above emails are now exhibits in the trial.
At 4:30 pm today, I directed my Associate to telephone the ICL and to obtain confirmation that the children were currently in the supervised care of the father as the Court had been informed was going to be the case between 4:00 pm and 6:00 pm today.
My Associate did that and then informed me that the ICL had confirmed that they were.
I will now be immediately ordering that the father may take them home in his unsupervised care this afternoon as soon as he and the supervisor are made aware of the delivery of the judgment and the making of the Orders. I will also make an Order restraining the mother and the maternal grandparents from attending at the premises of the supervisor or from contacting or attempting to make any contact with the supervisor before the expiration of five calendar months from the date of the Orders. That will be to protect the supervisor from any adverse consequences of the email that she forwarded to the ICL set out above. I will direct, by order, the ICL to inform the mother by whatever means of communication she considers appropriate immediately the ICL is aware that the children have been taken home in the unsupervised care of the father after the delivery of this judgment.
I am quite satisfied that this transition process will best shield the children from the emotionally traumatic consequences that would likely occur if they were in the mother’s care at the time the mother learns of the ordered outcome of these proceedings. I fully appreciate the emotional trauma that the mother will experience on learning of the outcome of these proceedings and can only urge her to take up the therapeutic counselling that the expert witnesses all considered she needs as soon as she possibly can.
I also appreciate that the transition arrangements that my Orders will be putting in place will likely result in some emotional difficulties for the children, in any event. I have already observed my acceptance of this fact in these reasons. I will make Order that will also require the father to arrange and facilitate therapeutic counselling and assistance for himself and the children to help them cope with the inevitable challenges that will present. My Orders will provide that he may expressly take advice from the ICL as to referrals and recommendations for this purpose and for the ICL to seek out advice herself in this respect, if she considers it appropriate, from the professionals who have been engaged in the case to this time – Ms J, Dr M, Dr T and Ms K. For this purpose particularly and in the event of any other unforeseen matters, the ICL shall not be discharged until a date that is one year from the date of this judgment. That accords with the submission of the ICL herself and I consider it appropriate in the circumstances of this case.
I will also restrain the mother and each of her parents from attempting to make contact with either of the children other than in accordance with the Orders I make. This is to prevent the mother and her parents from going to or near the father’s home, or the school or child care facility the children may be attending with the intention or hope of seeing or making contact with either of the children without the written consent of the father. I will give the father liberty to show a copy of the Orders to the Principal of the school or child care facility attended at any time by the children so that those places are aware of this restraint on the mother and her parents. However, to be clear, my Order will still expressly authorise the mother to be able to communicate with the Principal of any school or child care facility attended by either child so as to be provided with any information about the children that such school or facility are normally lawfully able to provide parents of children who attend that school or facility.
The Orders will, in any event, provide for the father to keep the mother informed as to significant developments in the health, educational and cultural development of the children as they occur.
Furthermore, I will also otherwise restrain the mother, the maternal grandparents and the father from publishing to any third person or persons other than a solicitor or barrister in the course of obtaining further legal advice or an elected Member of Parliament, any documents (including, but not limited to, affidavits, reports and documents produced pursuant to subpoena) or photographs from these proceedings, relating to these proceedings or the subject matter of the proceedings without first obtaining leave of the Court. That is to protect the children in particular, but also the parties, from any further emotional harm that might be caused by any unauthorised publication of any such material.
A general restraint on the parents and the grandparents from denigrating the other parent or any member of the other parent’s family to, or in the presence or hearing of the children will also be included in my Orders. I am concerned to shield these children from the effects of ongoing denigration of their parents and family members by any of their parents and family members. Hopefully, such restraint will so protect them.
I make the Orders that are set out at the commencement of these written reasons.
Decisions such as this one, though sometimes clearly needing to made, are never easy. It is hoped that these children can have the childhood that they deserve and that the mother can quickly arrive at a point where the children will be able to continue their relationship with her in an emotionally safe and secure way without any further emotional harm being done to them.
I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 February 2020.
Associate:
Date: 24 February 2020
(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)
0
3
3