JOHNS & JOHNS

[2012] FamCA 1060

FAMILY COURT OF AUSTRALIA

JOHNS & JOHNS [2012] FamCA 1060

FAMILY LAW – CHILDREN – With whom a child should live – Whether child is at risk of harm – Where there is not an unacceptable risk of harm – Where Court expert supports an equal time arrangement between the parents – What school the child should attend – Where there is no evidence that either school would provide a better educational experience for the child – Where the father has lived continuously in one area and has no plans to leave – Where the mother has a history of changing residential areas – Where Court expert suggest the school that will support the child’s relationship with the father and her brother – Child’s name – Where child has predominately been referred to by a single name by both of the parents – Orders made with respect to who keeps the child’s passport.

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Ms Johns

RESPONDENT: Mr Johns

INDEPENDENT CHILDREN’S LAWYER: Mr Barry

FILE NUMBER: SYC 6836 of 2010

DATE DELIVERED: 12 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19, 20, 21, 22, 23 and 26 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Saw

SOLICITOR FOR THE APPLICANT: Robertson Saxton Primrose Dunn Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Commission of New South Wales

IT IS ORDERED

1. That the child B born … September 2007 (“the child”) live with each parent on a week about basis, with changeover in the child’s living arrangements to be each Friday from the conclusion of school, or 3.00pm if Friday is not a school day, commencing on Friday 14 December 2012.

2. That from the commencement of the 2013 school year, the provisions of order 1 will apply during school terms only.

3. That from the commencement of school in 2013, the child shall spend half of each school holiday period with each parent, as agreed between the parents and, in the absence of agreement, for the first half with the mother in odd numbered years and for the first half with the father in even numbered years.

4. That on the child’s birthday she spend time with the non-resident parent from after school until 6.00pm if the day is a school day, or from 12noon to 3.00pm if the day is a weekend day.

5. That in even numbered years, the child spend time with the father from 9.00am on 24 December until 9.00pm on 24 December and with the mother from 9.00pm on 24 December until 9.00pm on 25 December.

6. That in odd numbered years the child spend time with the father from 9.00am on 24 December until 9.00am on 25 December and with the mother from 9.00am on 25 December until 9.00am on 26 December. 

7. That the mother and the father do all things required to effect the child’s enrolment at C School for the commencement of the 2013 school year.

8. That the child be known by the name “B”.

9. That the mother be restrained from leaving the child in the care of Ms D at any time.

10. That the father ensure that, when he is unable to care for the child, she be cared for by an adult over the age of 25 years until the child is 10 years old.

11. That the parties ensure that the dog “E” lives with the child.

12. That the child’s passport is to be held by the parent who has the passport in their possession until such time as the passport is required by the other parent for the purposes of overseas travel with the child.

13. That in the event a parent requires the child’s passport for the purposes of overseas travel with the child and the parent does not have the passport in their possession, the parent who holds the passport is to give the passport to the parent who requires the passport. 

14. That in the event a parent is given the passport from the other parent for the purposes of overseas travel with the child, that parent will hold the passport in accordance with order 27.

15. That the mother pay the costs of the ICL, in relation to the hearing on 12 March 2012 in the sum of $1859, such payment to be made within 12 months of the date of this order.

IT IS ORDERED BY CONSENT

16. That all previous parenting orders in relation to the child B born in September 2007 (“the child”) be discharged.

17. That the mother and the father have equal shared parental responsibility in relation to the child, such responsibility to involve shared decision making in relation to the child's health, education and religion.

18. That in the event that the child is not in the care of her mother on Mother's Day, that the child's time with her father is suspended from 9.00am to 5.00pm on that day.

19. That in the event that the child is not in the care of her father on Father's Day, that the child's time with her mother is suspended from 9.00am to 5.00pm on that day.

20. That the father and the mother are hereby restrained by injunction from:

20.1.Denigrating each other or members of each other’s families including but not limited to F; and

20.2.Discussing these court proceedings, any court document or reports or the child’s views and wishes in relation to her future living arrangements and spend time arrangements,

in the presence or hearing of the child.

21. That each parent be at liberty to telephone and communicate with the child when she is in the care of the other parent at a reasonable hour, and if a message is left then the parent who has the care of the child will use their best endeavours to ensure the child returns the telephone call that day.

22. That changeover in accordance with these orders that does not take place at the child's day care, preschool or school is to take place with the person who is to take the child into their care picking the child up from the other parent's house at the commencement of their time with the child, or such other place as agreed between the parents in writing.

23. That the parents will both be entitled to attend events involving the child including:

23.1.Sporting fixtures;

23.2.Extra curricula activities that allow for parental attendance;

23.3.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions,

and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child's transportation to and from that event.

24. That the mother and the father keep each other informed in writing as soon as practical and before the date of the appointment of any medical appointments for the child with any general practitioner, psychologist, psychiatrist, counsellor or therapist.

25. That in the event of the child being hospitalised or receiving medical attention, the parent the child is in the care of shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

26. That each parent inform the other at least seven days I to any change of their residential address, mobile telephone number or landline telephone number.

27. That each parent shall be able to travel overseas with the child on the condition that the other parent's written consent is obtained and the other parent shall not unreasonably withhold consent.

28. That should either parent wish to travel overseas with the child, that parent shall provide the other parent with at least four weeks I written notice of any intention to travel to all overseas destinations and shall provide the other parent with contact details, itineraries and confirmation of return tickets.

29. That each parent shall be able to travel overseas with the child on the condition that the other parent's written consent is obtained and the other parent shall not unreasonably withhold consent.

30. That should either parent wish to travel overseas with the child, that parent shall provide the other parent with at least 4 weeks I written notice of any intention to travel to all overseas destinations and shall provide the other parent with contact details, itineraries and confirmation of return tickets.

31. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED BY CONSENT

A.That each parent has extended family living interstate, and it is the intention of each parent that the child will travel with them to visit extended family during block holiday periods that the child is in that parent's care.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6836  of 2010

Ms Johns

Applicant

And

Mr Johns

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are concerned with the parenting of a child the child B born in September 2007 (“the child”).  The child is five years old.  The mother, Ms Johns, and the father, Mr Johns, were married in 2007 and separated on 22 October 2010.  For the whole of the time the parents lived together, the father’s son, F, born in April 1997, was a member of the household.  F continues to live with his father.

brief background

1. On 2 October 2010, when the child was just three years old, the mother alleges that the child said to her “[F] pulled down my pants, pulled down my knickers and touched my jona”.  “Jona” is the child’s word for vagina.  The father who was not present during that conversation does not accept that the child made the statements which the mother alleges.  The evidence in relation to the alleged disclosures of abuse by the child will be examined at length later in these reasons.

2. On 4 October 2010, the mother reported the child’s disclosures to a helpline and a notification was made to the Department of Community Services (“DOCS”), as it then was.

3. On 8 November 2010, the mother, the father and the child went to an interview with the Joint Investigation Response Team (“JIRT”).  A friend of the mother, Ms G, accompanied them.  the child was interviewed by a child protection case worker, Ms H, and Detective I.

4. On 19 October 2010, the mother and the father attended an interview at DOCS for the purpose of being advised of the outcome of the investigation.  By this time F had also been interviewed at his school.  The parents were told that the result of the investigation was that it could not be proven that anything happened or that anything did not happen.  It was suggested to the parents that they should remain vigilant with the children and that the children should not be left alone unsupervised together.

5. On 21 October 2010, after an argument between the parents the mother took the child and went to stay with her friend, Ms G, in Suburb J.

6. On 22 October 2010, the mother was interviewed by police at Suburb K Police Station and as a result of that interview the police sought an Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother against the father. The mother returned to the home three days later.

7. On 2 November 2010, the mother moved out of the family home taking the child with her.  The mother made a complaint to police to the effect that the father had intimidated her in the process of her moving her belongings out of the home. As a result the father was arrested and charged.

8. The father did not then see the child for some time, until orders were made in the Federal Magistrates’ Court.

9. On about 10 November 2010, the mother took the child to Adelaide to visit with her parents having first instituted proceedings in the Federal Magistrates Court which were returnable on 15 December 2010. 

10. On that day the Federal Magistrate made orders by consent that the child spend time with her father each week for two full days and overnight, that the father be present at all times when the child and F were together and that the child sleep in the same room as her father when she is spending overnight time with him.

11. On 14 January 2011, the father filed an Application in a Case seeking interim orders that the child live with him.  On 2 March 2011, the Court made orders by consent that the child live with her father each alternate weekend from 9.00 am to 5.00 pm Sunday and each alternate week from 9.00 am Thursday to 5.00 pm Sunday.  By consent it was ordered that the father was to be present at all times when the children were together, that the father would sleep in the same room as the child when she is spending overnight time with him and, by consent and without admissions, both parents were restrained by injunction from providing any information to any person in relation to the JIRT investigations relating to F.  In addition, the mother was restrained by injunction from recording the child and the father.

12. On 24 April 2011, the mother says that the child stated “daddy touched her jona”.  On 16 May 2011, the child allegedly told her mother “mummy I’ll tell you something, my daddy touched my jona”.  On 29 May 2011, the child allegedly told her mother “daddy touched inside my bum”.  On 1 June 2011, the child allegedly told her mother “daddy touched my jona”.  On 4 June 2011, the child allegedly said to her mother “daddy didn’t touch my bum or jona this time.  He touched it three other times”.

13. On 6 June 2011, the mother took the child to see the family doctor, Dr L.  In her oral evidence she agreed that the reason for taking the child to see Dr L was so that the child could make a disclosure of sexual abuse.  The child did not make a disclosure.

14. On 7 June 2011, the child was babysat by a friend of the mother’s, Ms D.  She has a daughter who plays with the child. As a result of things which the child allegedly has said to Ms D (of which more will be said later in these reasons), Ms D telephoned the mother and sought her position to report to police a disclosure by the child of sexual abuse by her father.

15. On 8 June 2011, the mother took the child with Ms D and Ms D’s daughter to be interviewed by JIRT at Suburb T.

16. On the same day, an interim ADVO was taken out by the local police and served upon the father.

17. A telephone call was made by the JIRT team to Dr L who confirmed that the child had a general check up due to complaints that she had a sore tummy and an itchy bottom and that his conclusion was that the child had worms.  The JIRT investigation concluded that the interview with the child was very confusing. 

18. On 10 June 2011, the mother was told that JIRT had not substantiated sexual harm to the child and that she should resume contact in accordance with the orders which had been made by the Court.  The mother’s response was that there was an ADVO in place and she would not hand the child to the father.

19. On 16 June 2011, police withdrew the ADVO against the father.

20. On 8 July 2011, there was a third investigation commenced by JIRT after a notification was received from Dr L.  The child was interviewed by a team including Detective Sergeant M, who formed the opinion, based on the context of the child’s disclosures, that the father had been toilet training the child and the disclosures of the child that her father had put his finger inside her anus were directly attributable to that process as opposed to the touching of the anus being a sexual assault.  The JIRT investigation was suspended.

21. Detective Sergeant M swore an affidavit in the mother’s case.  It was his evidence that “as a result of the issues discussed during that interview and subsequent interviews conducted around the August 2011 I formed the view that while harm to the child could not absolutely be ruled out, there was sufficient evidence to suggest on the balance of probability that no harm occurred.”

22. On 21 September 2011, orders were made by consent in the Federal Magistrates Court restraining the mother from causing the child to be assessed except by agreement with the father and the Independent Children’s Lawyer or as ordered by the Court.  The orders in relation to the time the father spent with the child were unaltered and the matter was listed for hearing commencing on 12 March 2012.

23. At the commencement of the hearing before the Federal Magistrate, the mother changed her position and the Court was informed that she sought orders that the father should have day time only time with the child until such time as the child was ten years old. Up until the first day of the hearing the mother had maintained the position that the existing interim orders were appropriate and should be made into final orders.

24. The hearing did not proceed and the matter was transferred to the Family Court. The costs thrown away were assessed and reserved to the Trial Judge.

the mother’s case at trial

1. On 13 November 2012, the mother’s solicitors filed a Minute of Orders setting out the orders she sought at trial. It is to be remembered that, until that day, the mother ostensibly sought orders that the child spend no overnight time with her father until she was 10 years old.

2. The order which the mother sought at trial, however, provided for the father’s time with the child to be, initially, four nights each fortnight; then when she turns six years of age, five nights each fortnight; when she turns seven years of age, six nights each fortnight and when she turns eight years of age, a week about arrangement. She also proposed that, beginning with the Christmas holidays in 2012, the child should spend half of every school holiday period with her father. The mother sought no supervision of the father’s time with the child but sought orders that the child’s contact with F be supervised and that a movement sensor alarm be placed on the child’s bedroom door.

3. Annexed to the mother’s affidavit were two earlier offers of settlement made by her. The first offer, under cover of a letter from her solicitors, was made on 13 April 2012, one month after the mother had stated to the Federal Magistrate that her position was that the father should not have overnight time with the child until she was ten. The mother offered to resolve the proceedings on the basis that the child would commence an equal shared time arrangement on 1 January 2014 and a week about arrangement in 2015. She proposed an immediate sharing of holiday time. She proposed that the child not be left alone with F until the child was 15 years old and that an alarm be fixed in the child’s bedroom at night.

4. The mother’s second offer of settlement was made in a letter dated 2 July 2012. In that offer she proposed that, commencing immediately, the child live with the father for five nights each fortnight and from 1 October 2014 on a week about basis. Shared school holidays were to begin immediately. She maintained the conditions in relation to F and the alarm.

5. As can be seen, the position the mother maintained at trial was less generous towards the time the child would spend with her father than her offers of settlement. In cross-examination, she said that the Minute of Orders was filed without her having approved it and that she would have preferred an even less generous proposal. She was, however, clear in her evidence that she was proposing steps towards a week about arrangement and that, for her, the issue was when the week about arrangement would commence.

6. The mother was adamant that she had no concerns for the child in her father’s care, other than that she was concerned that F might sexually abuse the child and therefore required that the children be supervised and that the child’s bedroom door be alarmed.

1. The father, who initially sought a week about arrangement commencing immediately, altered his position after the cross-examination of the mother, and two of her friends who also cared for the child on occasions. He sought orders that the child live with him for nine nights each fortnight.

2. With the assistance of the Independent Children’s Lawyer (“ICL”) the parties were able to resolve a large number of peripheral issues and the matters that remained to be determined were:

   (a)The assessment of the allegations of sexual abuse against the father.

   (b)The assessment of the allegations of sexual abuse against F.

   (c)the child’s living arrangements – on the mother’s application, when should the week about arrangement commence? On the father’s application, should the child live with him for nine nights each fortnight.

   (d)Supervision of the child and F and the mother’s application that a movement sensor alarm be placed on the child’s bedroom door.

   (e)Where the child will start school in 2013.

   (f)Applications by each party in relation to babysitters employed by the other.

   (g)The mother’s allegations of excessive consumption of alcohol and domestic violence against the father.

   (h)The mother’s application to have the child’s name changed.

   (i)Who is to hold the child’s passport.

   (j)Whether the family should engage in family therapy and whether the mother’s weekly attendance on her own therapist should be a condition of any time that the child lives with her mother.

   (k)Where E the dog should live.

   (l)In submissions it became clear that there was a serious challenge to the mother’s credit both by the ICL and by the father.

the evidence

1. The mother relied on an affidavit sworn on 12 November 2012 of 1,338 paragraphs and 250 pages, with 544 pages of attachments. She also relied on affidavits of her therapist, Ms N; her mother, Ms O; her friends and babysitters, Ms D and Ms G; her treating doctor, Dr L; her brother; and Detective M who had been part of the JIRT investigation.

2. The father relied on two affidavits sworn by him, the second being an updating affidavit, and an affidavit of his mother, Dr P, who is a specialist paediatrician and a child and adolescent psychiatrist.

3. The court appointed expert, Dr Q prepared two reports dated 9 September 2011 and 11 June 2012.

4. A subpoena to give evidence was issued to Detective I but she was not required for cross-examination. The significance of that will be discussed later in these reasons. Ms H gave oral evidence. She appeared on subpoena and, by consent, was treated as the Court’s witness.

credit

1. The mother’s evidence needs to be considered against her family history and background.

2. In her first report dated 17 February 2011, Ms N says:

   (The mother) reported that there is a history of sexual abuse in her family. Her mother was, “raped by her father” when she was a child. According to (the mother) “my grandmother ignored the allegation and made my mum sleep in her little sister’s cot”. When (the mother) was 12 years old her older sister disclosed to her that an uncle by marriage had repeatedly raped her from when she was eight until she was 12 years old. (The mother) told her parents and they dealt with the allegation by seeking medical assistance and ceasing all contact with the uncle. At age 15 years her sister took the matter to court and the uncle was found not guilty. Her sister has been “in and out” of psychiatric hospitals for much of her adult life and she has cut all contact with the family.

3. Ms N says of the mother “She reports being psychologically distressed and presents as being anxious and overwhelmed emotionally.”

4. Ms N further says:

   From her presentation and history it is evident that (the mother) is very reactive to stress, becomes overwhelmed emotionally and finds it difficult to contain her emotional reactions, particularly when she perceives that she is being criticised. This sensitivity to criticism means that she quickly becomes defensive which may lead to her being perceived as being hostile.

5. At the conclusion of her report Ms N notes “the family history of sexual abuse is likely to have sensitised her to issues related to sexual abuse of children and together with her emotional reactivity may contribute to her presenting as defensive and at times hostile.”

6. In her second report Ms N refers to matters which were clearly not available to her at the time of the preparation of the first report.  Ms N reports :

   (The mother) approached her brother several years ago and disclosed to him that she had engaged in sexualised behaviour with him when she was eight years old and he was one year old. She reported that she and a female cousin found a pornographic magazine depicting images of a woman performing oral sex on a man. She recalls finding these images fascinating and on one occasions she engaged in sexualised play by playing with her brother’s penis. She did not understand what she was doing at the time but later felt guilty as an adult and wanted to absolve her guilt by apologising to her brother. He did not recall the incident. According to (the mother) he told his other sister who later disclosed this to (the father) when (the mother) and (the father) separated. This incident was one of the main factors contributing to the break down in the relationship with her sister.

7. Dr Q in her oral evidence was asked whether the mother was preoccupied with the issue of the use of pornography, particularly by F.  Dr Q said:

   “Preoccupied”?  It certainly was a major concern for her.  Yes, “preoccupied” probably is not stretching the nature of her – her concern.  I don’t think she was ruminating over it.  She was very involved with it, anyway.  Sorry.  I was just trying to think whether that’s the right word.  Possibly, it is.

   The mother’s concerns about F having viewed pornographic material were a substantial issue in her case.

8. In their respective submissions in relation to credit, both Counsel for the ICL and Counsel for the father focused on the mother’s evidence in relation to the investigation conducted by DOCS and by JIRT. In particular, the mother asserted in her affidavit and in her oral evidence that a DOCS officer, Ms H, had deliberately falsified her records of conversations with the parties and with the mother. The mother asserts that Ms H colluded with the father. She repeated those assertions in her oral evidence.

9. Ms H’s file notes were the subject of substantial criticisms by the mother. In the mother’s affidavit, she sets out numerous instances where, she says, Ms H’s notes are inaccurate. The mother’s criticisms of the investigation and of Ms H in particular, commence at paragraph 434 of her affidavit and end at paragraph 666.

10. The mother told Dr Q that Ms H had lied in her documentation of their contact. She asserted to Dr Q that Ms H had never told her about the concerns for her mental health or that she had been classified as a risk of harm to the child. She believed that Ms H was swayed by the father. When asked by Dr Q why Ms H would falsely document their interactions she did not appear to have an explanation.

11. The assertion that she had falsified her notes was not put to Ms H in cross-examination by counsel for the mother. On behalf of the mother, she was cross-examined in relation to her notes of a telephone conversation with the father on 20 October 2010 and a telephone conversation with the mother on 22 October 2010. In response to the proposition that her filed notes could be inaccurate, Ms H gave evidence that she used headphones when taking telephone calls and typed her notes contemporaneously, completing the file note after the call. It was her evidence that her notes were accurate.

12. On behalf of the mother, Ms H was cross-examined about her conclusion that the mother was a “person causing harm” in relation to the child. She said that the finding was made by her in conjunction with her manager and that the mother, when advised of the finding, was highly emotive and distressed. Ms H said that she discussed the reasons for the finding with the mother but she believed that the mother did not listen to her explanation.

13. None of the other matters of which the mother complained in relation to Ms H were put to her. Ms H is an experienced child protection worker. She has a degree in psychology. There is no cogent reason put forward by the mother for Ms H to falsify her notes or seek to influence, improperly, the outcome of the investigation. In cross-examination by counsel for the ICL, Ms H emphatically denied that she had done so, in this matter or in any other matter. Ms H is experienced and qualified and was acting under a duty to record. She had no interest in the outcome of the investigation. Where Ms H’s evidence differs from the mother’s evidence, I prefer the evidence of Ms H.

14. Counsel for the ICL and counsel for the father submitted that the mother’s failure to cross-examine Ms H in relation to the criticisms and the serious allegations made by the mother about her handling of the matter must give rise to a finding that the mother knew that her allegations as set out in her affidavit were false. There is force in that submission but I do not make a finding that the mother deliberately and knowingly gave false evidence. It is more likely that her heightened anxiety, particularly about sexual abuse, combined with her outrage at being labelled a “person causing harm” by DOCS, have distorted her recollection.

15. If the mother’s evidence in relation to her interaction with Ms H cannot be accepted, then her evidence about other matters, particularly where it relates to sexual abuse, should be treated with extreme caution where it is contested, in the absence of independent support. 

the sexual abuse allegations against F

1. The mother in her oral evidence said that when the child started pre-school aged two, she had lessons in good touching and bad touching and protective behaviour. She said that the child had been taught, if she was touched in a way that made her feel uncomfortable, to put up her hand and say “Stop it. I don’t like it.”

2. Both the parents gave evidence that, in 2008, the mother found that F had been looking at pornographic material on his computer. The material he viewed was linked to a gaming site and, from the examples tendered, was digital rather then depicting real people. They both said they dealt with the issue with F together. The father talked to F after taking advice from his mother about the correct approach and organised blocking software on the computer. In 2009 the mother found that F had access to a different site on which he viewed pornographic material. The father blocked that site and both parents then supervised F’s computer use and made sure that the computer was password protected and turned off when they were not at home.

3. In Dr Q’s second report she was told by F that he was aware that the mother had accessed his Facebook. The mother gave evidence that she did so by asking a friend, who was a Facebook friend of F, to allow her access. There is no suggestion that F gave the mother permission to look at his Facebook entries or that he knew she would do so.

4. In her oral evidence the mother said that the friend, who had allowed her access to F’s Facebook, had never seen pornography or a reference to it. The friend said that when she had looked at F’s Facebook entries, she was concerned that F was sad.

5. Dr Q questioned the mother about her intrusion into F’s privacy and whether she could be considered to be “stalking” F. Dr Q told the mother, and the mother agreed, that an interest in pornography was normal in a child of F’s age. However, the mother told Dr Q that “it was OK for others but not [F]” as he was supposed to be monitored by his father.  Dr Q’s oral evidence about the absence of causal links between pornography and deviant behaviour could not have come as a surprise to the mother.

6. F told Dr Q that he had not looked at pornography since February 2012 as “there was not much point” because of the mother’s allegations. The father was present during this conversation. On his Facebook, F had posted to a friend a link to a gaming site, the same site that the mother had observed him to use in 2008. The father asked F about the site and said that F was unaware of any link to pornography.

7. The mother asserted that F was still viewing pornography at home, despite the father’s evidence of the sophisticated blocking software that he had installed at home. The father gave evidence that the software is password protected and that F does not have the password and is therefore unable to disable the software. The software also protects F’s mobile phone and any other electronic devices he has because the father has made sure it is installed on every device.

8. The mother, using her own equipment, opened the site to which F had referred. Using her own equipment, she was able, through links, to gain access to pornography similar to that which had been viewed by F in 2008. She tendered printed material from those linked sites as evidence that F was still able to gain access to pornography at home. I do not accept that the fact that the mother, using software without filters, was able to view pornographic material, establishes that F, using a computer with sophisticated filters, could be able also to gain access to the same material.

9. In relation to F’s statement that he had looked at pornography in February, he did not say what computer he used and there is no evidence to establish that he did so at home.

10. The mother’s case was that because F had an unhealthy interest in pornography, he was at risk of performing some sexual act on the child.

11. Dr Q did not support the mother’s concerns. Asked specifically about a causal connection between adolescent boys viewing pornography and child sexual abuse, Dr Q said:

    I don’t know how much research has been done on pornography and adolescent males.  I certainly know from experience and – that it’s a common practice for young males and females, I think, to look at pornography, but particularly young males.  I certainly know from the child abuse literature that there’s no causal link between the viewing of pornography and child abuse.  Certainly, child abusers often have a history of pornography use and so there’s an association there.  There’s certainly not a causal link that I’m aware of and, of course, it is widely used in the normal population as well, so I – I don’t think one can – that there is any evidence and certainly I wouldn’t draw any conclusion that – of causality – that watching pornography therefore leads one to be a perpetrator of abuse.  I would say there is no evidence for that.

12. Asked whether there was a connection between the mother’s unresolved anxiety about child sexual abuse and her concerns about F’s viewing pornographic material, Dr Q said:

    I think so.  I certainly think she sees it as some sort of evidence that the child has some preoccupation with abuse and this, therefore, places him at – or places the child at risk, but it’s not – I think it’s unfair to (the mother) to say it’s just because of – she’s worried about [F] simply – only – because of his pornography use.  Her – her concerns clearly arose from the early statement by the child – whatever that statement was, because it’s disputed about exactly what was said to her – and what she says is her observations of [F] having inappropriately tickled the child, so those – those initial observations have – have – well, one of the seeds because I have other concerns about what else might have seeded her concerns about abuse.  It was certainly prominent seeds as to start her on the anxiety about abuse.  The use – her current – well, at the time I saw her – her current checking and being concerned about [F’s] pornography use, seemed to me to – to be a way for her to manage her anxiety and she was checking on the situation in terms of, you know, is – is (the father) properly monitoring [F]?  You know, has he – has he put the locks on?  Is he checking what – what’s happening with [F]?  And, of course, that all comes from her lack of trust – well, the lack of trust between the two parents – but her lack of trust that (the father) is protective of his daughter and will do what is – what is needed.

13. It was put to Dr Q that there was no objective foundation for the mother’s concern that, because F had looked at pornography as recently as February 2012, he was more of a risk of harming the child. Dr Q said:

    No, because pornography use is very common in this age group and – and the – his pattern of use – being up all night, looking at things and talking to his mates and using the language he used and – and so forth – I would think would be a very common behaviour for a boy of his age.  I – I think it would be very unwise to assume that because he’s doing that, therefore, this makes him a risk to the child.

14. It is the mother’s evidence that on Saturday 2 October 2010 she was dressing for work and the child was with her in her bedroom. The mother says that the following conversation occurred:

    B: Is Jazz’s brother baby Finn a boy or a girl?

    Me: Baby Finn is a boy remember boys have penises and girls have vaginas

    B: You don’t put penises in your mouth do you?

    Me: No!

    B: You don’t put mouths on Jonas?

    Me: No

    B: And you don’t put fingers in jonas do you?

    Me: No! And you tell mummy if that ever happens to you.

    B: [F] pulled down my pants pulled down my knickers and touched my Jona.

    Me: Where was mummy when this happened?

    B: Mummy was in the North Pole.

    Me: Where was daddy then?

    B: In the South Pole.

15. The mother understood that the child meant that her parents were not around at the time. The mother said that at the time her favourite show was Dora the Explorer and the child had a DVD of Dora at the North Pole and the South Pole which she had watched a lot.

16. The mother says that immediately after the conversation took place with the child she found the father and told him what the child had just told her. The mother says that the father said to her “[F] would never do such a thing. He wouldn’t. There are a million places that the child could get this type of information from. [The child] is making this up.”

17. The father has a different version of the conversation.

18. The father says that on 2 October 2010, in the child’s presence, the mother said to him “[B] and I were talking about baby [EE]. [B] said to me ‘you don’t put penises in mouths and you don’t put mouths on vaginas.’” The father says that he concluded that the child was repeating something which she had heard and he said to the mother “did you ever say those words to the child,” to which she replied “No.” The father says that there then ensued a discussion about where the child could have heard such a thing. He says that the mother said to him “I was talking to [B] about boys having penises and girls having vaginas directly before the child’s comment”. The mother then said to the father “you have to talk to [F]”. The father says that after about ten minutes of discussion, with the child still in the room, the mother said “ [B] also told me that [F] had pulled down her pants and touched her jona. You have to talk to him”. The father says that at this point he took the child out of the room and then returned and had further discussions with the mother. The father and the mother agreed that the father should telephone his mother who is a child psychiatrist and ask her advice about how to deal with speaking with [F] and the child’s alleged disclosure.

19. In cross-examination it was put to the father that his evidence, that it was not until about ten minutes of discussion that the mother alleged that the child had implicated F, was false. The father was adamant that his recollection was accurate. At all times the father has maintained that he does not accept that the child implicated F in any conversation on 2 October 2010.

20. The father telephoned his mother, Dr P. Dr P sets out her version of the conversation between herself and the father in her affidavit in the following manner.

    (The father): “(the mother) just told me that she had a conversation with the child and that she is convinced that [F] had been sexually inappropriate with the child”

    Me: “What did (the mother) say to you?”

    (The father): “ the child apparently said to (the mother) ‘you don’t put Penises in mouths and you don’t put mouths on Vaginas’. She told it to me a few times and later, after talking about this for a while, (the mother) said that the child has also said ‘[F] had pulled down her pants and touched her jona’”. “What do I do? I am shocked and really worried about [B]. How do I find out what has actually happened and how do I bring this up with [F]? I am worried about [F], too. What has he done? Has he done anything bad? Is he being accused of something he has not done?”

    Me: “It all sounds very concerning. You need to speak to [F] but I don’t think you tell him what (the mother) has said. You will need to speak to him to first explore and review [F’s] understanding about boundaries and then attempt to find out what, if anything, happened. What the child is quoted as saying is surely not something one would expect from a child of her age. Has there been any change in her behaviour recently? How is she around [F]?”

    (The father): “I have not noticed any change in the child’s behaviour. The child is not acting any differently with [F]. Thanks mum for your help, I will call you later. This is terrible I have to protect both of them and make sure they are both OK”.

1. Dr P was cross-examined. Her version of the telephone conversation between herself and the father on 2 October 2010 was not the subject of cross-examination by the mother. Therefore the Court has unchallenged evidence from Dr P that the father told her that there was a delay between the mother’s recounting of the child’s first comment to the effect that “you don’t put mouths on jonas and you don’t put fingers in jonas” and the child’s second comment, as related by the mother, that F pulled down her pants, pulled down her knickers and touched her jona.

2. The mother is adamant that the child made the statements as she has set out in her affidavit and that she related them to the father as she sets out in her affidavit.

3. The father is adamant that there was a delay of some ten minutes between the time when the mother said to him “you have to talk to [F]” and her saying to him “[The child] also told me that [F] had pulled down her pants and touched her jona”. It was the father’s evidence that he believed that there had been no statement by the child implicating F but that the mother had fabricated that statement. The father’s case is that if the child had said those words then the mother would have told him immediately at the beginning of the conversation. The father’s version and the mother’s version of events cannot be reconciled. The court is, however, left in the position where Dr P’s version of the conversation is unchallenged and it provides corroboration for the father’s version. I accept the father’s evidence that the mother did not tell the father about allegations implicating F until some time into their conversation.

4. Nothing further was said by the child after the conversation on 2 October 2010. The mother on 4 October 2010 telephoned a children’s hospital help line and spoke to a person who, as a mandatory reporter, made a notification to DOCS on 6 October 2010.

5. On 6 October 2010, the mother received a phone call from Ms R from JIRT. Ms R’s notes dated 7 October 2010 state:

   (The mother) was highly apprehensive when asked that the children be separated overnight. (The mother) strongly asserted that she would be hyper vigilant and supervise the kids at all times until the interview has taken place. There was significant discussion around this and (the mother) did not want to leave the family home or have [F] made to leave the family home. (The mother) said there are no extended family that they could call on easily. Arrangements were made for the child to be interviewed by the JIRT team on 8 October.

6. The mother did not tell the father about the conversation with Ms R.

7. On 7 October 2010, while the father was holding the child, who was having a tantrum, the child wriggled out of his arms and fell onto the floor. Her nose and lip were bleeding and the parents took the child to the hospital. While they were at the hospital the mother told the father for the first time about the JIRT interview, scheduled for the next day and telephoned Dr P and asked her to come to Sydney to help the family.

8. On 8 October 2010, the mother, the father and the child went to the JIRT interview. They took with them the mother’s friend Ms G.

9. The notes of the interview with the child which was conducted by Ms H and Detective I are in evidence. The child told the JIRT team that she is happy when she is playing with F. She said that F did not touch her anywhere else other than on her hand and had put nothing near her face. The child said that F, mum and dad touch her on the face and nothing else happens on her face. She said that F and E touch her on the belly and that F pushes her on her belly. (E is the family dog).

10. The child then identified the vagina as being a “jona” and then identified that “you wee out of the jona”. The child said that daddy “touches her on the jona and [E] does ‘in little bits’” and that F touches her there and made a reference to it being ‘this high’ by opening her arms wide apart”. When the child was asked what F touched her with on the vagina she at first replied “I don’t know” and then she said “a hammer”. Asked again what F touched her with she said “scissors, he cuts my jona off with scissors.” When, with the use of the male body chart, the child was asked to say what part of F touched her, she continuously replied “I don’t know”. The interviewer asked the child “what part of [F] touches the child?” and she replied “his thumb touches my toes”. When asked the question again, the child replied “I don’t know”.

11. The interviewer then asked the child a deliberately leading question “Someone told me that [F] puts his penis in your jona”. The child instantly replied “does he?” The interviewer said “that’s what someone told me, what can you tell me about that?” And the child said “I don’t know”. The child then said “yeah someone did” and when asked “who was it?” said “I don’t know”. Later in the interview the child was asked “what other part of [F] touches you?” and she said “I don’t know”.

12. The interviewer again resorted to leading questions and asked the child “If someone told me that [F] puts his penis in your mouth what would you say?” The child then said in a strong and loud voice, using her hand in the motion of a stop sign “I would say stop it. I don’t like it”. The interviewer reports that the child was very matter of fact about this statement and her affect was out of character in comparison to the other parts of the interview when she was more softly spoken.

13. The interviewer went on to say to the child “what can you tell me about that?” and the child said “when he puts his penis in my mouth”. (It is not clear from the record whether the child was asking a question or making a statement, a matter upon which Ms H later commented in her notes). The interviewer said “when did that happen?” and the child said “when I was at home”. The interviewer said “what day did that happen?” and the child said “I don’t know”. The interviewer said “someone told me that you told mummy that you should not put penis in mouth, is that right?” and the child said “yeah”. The interviewer said “tell me what you told mummy?” but the child did not answer.

14. The interviewer again asked the child “tell me about what you told mummy?” and the child did not answer. The interviewer said to the child “[B] what is a penis?” and the child said “I don’t know”. The interviewer asked the child to point to the penis on the body chart and she did and when asked “what does a penis do?” the child said “I don’t know”.

15. The interviewer again asked the child a leading question saying “you told me before that [F] puts his penis in your mouth, what room of the house was that in?” the child said “in my belly”. The interviewer said “which room of the house were you in when it happened?” and the child said “In my … house. In my bedroom when I was sleeping. When it was night time”.

16. The child then went on to say that it happened when mum and dad were in their bedroom and it happened only the one time.

17. The interviewer then said “who has put their fingers in your jona?” and the child said that “no-one had placed their fingers in her jona and no-one had put anything in her mouth”. The child said that she only told her mother what happened. When asked what she told her mother, she replied “I don’t know”.

18. The file note states:

    At approximately 10.30 am on 8 October 2010 [DSC I] and I then spoke with each other and confirmed that we had no conclusive evidence to say to whether [F] had placed his penis in her mouth, given that she did not disclose this through free narrative and there were disparities in the interview. For example, she was either agreeing or repeating after me that [F] placed his penis in her mouth but then at the end of the interview was very adamant that no-one had placed anything in her mouth.

    The file note goes on to say:

    I had a consultation with [Ms R] and told her what the child had said during the interview. [Ms R] agreed that at this stage we were not able to substantiate the allegation against [F] and that this is what I should tell the parents.

    That file note was written by Ms H.

19. The mother in her affidavit says that after the child’s interview Ms H and Detective I spoke with the parents. She says that they were told:

    [The child] had told them that [F] had come into her room at night and put his penis in her mouth. This fits in with the disclosures that the child made to you. We asked the child who has touched her vagina and the child told us Mummy, Daddy and [F].

20. The version of the interview which the mother gives is markedly different from that reported by the JIRT team.

21. Ms H’s notes of the interview with the parents, which took place after the interview with the child, indicate that she told the parents that they had not been able to conclusively say what had happened to the child. She said both parents wanted to know the truth and what really happened and that she explained that neither she nor Detective I were able at this stage to determine where the truth lay. Ms H notes:

    I also told the parents that at this stage of the investigation I was not able to substantiate the allegation because the child had not told us the information through open questions or free narrative and she made a number of contradictions throughout the interview. It was also explained to the parents that whilst the police side of things were able to cease today I would be making further inquiries before the investigation was completed. It was explained to the parents that this would involve me interviewing [F] and speaking to other agencies and services.

22. Ms H notes that the father was very protective and appropriate towards both of the children. She says “On the other hand (the mother) very strongly stated that she believes her daughter no matter the outcome and that she feels the only way she is able to protect her is by having [F] move out of the home and return to live with his grandmother in Queensland and that ‘this was the best option.’” Ms H further notes

    Whilst (the father) was out of the room, (the mother) told us that if we were going to substantiate harm she would have used that as the excuse to leave (the father) because the children would have had to have been separated. (The mother) asked [DSC I] and I if we would support her through Family Court. [DSC I] and I informed (the mother) that our assessments would read exactly as what we have told them today. [DSC I] and I asked why and (the mother) said because she would have had to have taken the matter to the Family Court.

    When the parents were able to stay in the room together, (the mother) would often belittle the father and say “see he just doesn’t get it, how can I trust him to protect the child”. [DSC I] and I and (the father) would often explain to (the mother) that this was not the case and that he was asking very appropriate questions. (The mother) would then often ignore this and talk over the father by saying “just because the child didn’t say it hasn’t happened doesn’t mean that it actually hasn’t.” We all agreed with (the mother) on this point.

23. The mother denied that the conversation occurred as Ms H recorded it but her version was not put to Ms H and Detective I, who was present during the conversation, was not required for cross-examination. It will be seen that the mother, in her affidavit, denies any conversation recorded by Ms H that puts her actions in a bad light.

24. The mother in her affidavit says that when the parents arrived home from the JIRT interview F was in the lounge room watching television and the child immediately walked up to F and said to him “You are not allowed to put your penis in my mouth anymore”. The statement is said to have been made in the presence of the father.

25. The father in his affidavit says that when the parents arrived home after the interviews the child said to F “You are not allowed to put your penis in my mouth”. The father says that he related this conversation to Detective I and Detective I said “We had a safety talk with the child at the end of the interview and I said that to her”. Having regard to that evidence in the father’s affidavit, the fact that the mother chose not to cross-examine Detective I is significant.

26. The mother had given an earlier version of these events in an affidavit sworn by her on 13 December 2010 only two months after the events occurred. In that affidavit the mother says “When we arrived home after the child’s interview with JIRT the child immediately said to F words to the effect of: ‘You are not allowed to put your penis in my mouth’. The child repeated this comment again to F pointing out F’s penis. F immediately burst into tears and said words to the effect of: “I know it’s hard to believe but what she is saying is not true.” In cross-examination counsel for the husband put to the mother that the addition of the word “anymore” in the second version of the affidavit implied that the child was telling F that he ought not to do something again which carried with it the implication that he had already in the past done the same act. The mother was unable to accept that that was the implication. She did however agree that when she swore the affidavit on 13 December 2010 the events would have been fresh in her mind. She did not agree that, had the child used the word “anymore”, she would have found that to be of sufficient significance that when she gave instructions for her affidavit of 13 December 2010 she would have included the words.

27. I do not accept that the child used the word “anymore” and I accept the version of the conversation which was given by both the mother in her affidavit of 13 December 2010 and by the father in his affidavit at trial. It also must be kept in mind that the child had been asked a number of leading questions on this topic in her interview with Ms H that day.

28. On 11 October 2010, the mother had a conversation with Ms H. In the course of that conversation the mother told Ms H that she had spoken to child protection workers at the child protection unit of S Hospital. The mother told Ms H “I told them what the child had told you and Detective I and they were concerned that the child had made disclosures and that the children had not been separated.”

29. In the same conversation the mother told Ms H that she wanted F out of the house and that she wanted him isolated. The mother also told Ms H that she intended to take the child for a medical examination “to see if she has been tampered with”. Ms H strongly advised the mother not to have the child physically examined. Ms H records that she said to the mother “At this point I am going to have to go as I feel as though you have a different agenda and you are not listening as to what I am saying. You need to think about what we have discussed and I will talk to you more about this tomorrow if need be.”

30. On 12 October 2010, F was interviewed at school. F denied any improper behaviour with the child. Ms H reports:

    [F] then began to cry and stated that he does not know where the child may have gotten something like that from but it definitely was not from him.

    [F] denied the allegations throughout the interview and said that “it would be the most disgusting and horrible thing that a brother could do to his sister” and “Nothing like that has ever happened and I know that there is an overwhelming amount of evidence stacked up against me, because [the child] is only three and she said it, but I just want my parents to believe me, I really didn’t do it.”

31. Ms H records later :

    F presented as a very small and slender young man who was very shy and timid and often had his head down unless he was being asked a question. [F] often had his hands underneath his legs unless he was wiping the tears from his eyes. He continuously cried throughout the interview.

    [F] appeared very genuine when he was saying that “nothing like this has ever happened”.

32. On 13 October 2010 Ms H notes:

    At approximately 3.45 pm on Wednesday 13 October 2010 I received a telephone call from (the mother) and to the best of my recollection, she said that two nights ago they had the discussion with [F] and after he had been spoken to by (the father), his natural mother (who had called) had told him that it was better to tell the truth.

    The night following that (the mother) said that she came across more sexually related things that he has been googling and she said to [F] “oh my god, this is like the next day or night that we have had a serious talk to you and you are already doing this. You need to start taking responsibility and thinking of the consequences. There are more consequences to your actions, [the child] and I may even leave the house.”

    I explained to (the mother) that what she had told [F] was very inappropriate and that she should not have said those things to [F] because it probably scared him into admitting anything to us at all if he had done something (sic). I further explained that this further complicated the investigation. I also attempted to explain to (the mother) that what she had said was psychologically harming to [F], but she continued to talk over the top of me and said that she was not interested in hearing it.

33. In the same file note Ms H records:

    (The mother) said to me about [F] “It’s frustrating that you spoke to him and I wasn’t there because he comes across as a really sweet kid and I’m the only one that sees it and so if I have of been there then I would have been able to show you what he is really like, he is so cunning and manipulative, you just can’t trust him.”

    I told (the mother) that when she speaks this way of [F] it raises concerns for me that she is not understanding the impact of her words on [F] and [the child]. Again (the mother) ignored what I was saying and continued to talk.

    (The mother) believes that (the father) makes excuses for [F] all of the time and feels as though she has been cheated with him because she has been his step mother and she would have thought that he may have treated her better. For example, (the mother) said that she placed a roof over his head, fed and clothed [F], his paternal grandmother pays for him to go to a private school and he is still sexually abusing her daughter. 

    (The mother) said that her concerns began when she saw [F] tickle the child near the crutch. I asked (the mother) as to why she had not brought this up earlier and she responded and said that she did not believe that it was important.

    (The mother) is concerned that if we do not have the evidence to say that this has occurred then she thinks that (the father) will never really believe this happened. I confronted (the mother) and told her that I believed (the father) completely understands what has happened and does beieve (sic) the child and that I thought it was she who was having difficulties not understanding.

34. Later in the file note Ms H notes “I advised (the mother) that she and (the father) attend relationship counselling. (The mother) told me that it was too late for that and that she knew before this investigation that she wanted out of the marriage.”

35. On the same day, an inter-office letter written by Ms R refers to significant concerns about the mother’s mental health.

36. On 19 October 2010, both the parents met with Ms H who told them that F had been interviewed and denied the allegations. Ms H told the mother that “the threat she had made ‘this is all your fault, you may cause [the child] and I to leave the home’ probably scared him into not saying anything if he had done anything at all”. Ms H records that the mother refused to listen to her and “was adamant that [F] was guilty and she could not be convinced otherwise”.

37. In the same conversation Ms H raised her concerns that the mother was saying things to the children that were inappropriate. She advised the mother that she needed to talk with a counsellor and that it would be appropriate for her to seek a mental health assessment. Ms H records that the mother was extremely upset. She records “I had found her most irrational and that she had not been listening as to what we had been trying to inform her since the child was interviewed and we informed her that we were not substantiating allegations against [F]”.

the dog

1. There is a dispute between the parties about the dog, E. The mother’s evidence is that E is the child’s dog and the mother, when she and the child left the home, took E.

2. The father’s evidence is that E was given to F when the child was born.

3. At some time after the separation, an agreement was reached between the parties that E should travel with the child, living with her in which ever of her parents’ homes she lived from time to time.

4. Nothing in the submissions of the parties suggests that any other arrangement is more appropriate.

costs of the hearing on 12 march 2012

1. On 12 March 2012, when the matter was first listed for hearing before the Federal Magistrates Court, the learned Federal Magistrate was asked to make an order that the mother pay the costs of the father and the ICL thrown away by virtue of her having changed her position on the morning of the trial.

2. The father’s costs were quantified at $3855.50 including GST and the ICL’s costs were quantified at $1859.00 including GST. His Honour ultimately determined that the issue of costs was a matter for the trial judge after a full hearing and therefore it falls to the Court to determine the application for costs thrown away of the hearing on 12 March 2012.

3. The assessment as to quantum is not challenged.

4. Dealing firstly with the application by the father. The evidence before the Court in relation to his financial position is contained in a Notice of Decision under Part 6A of the Child Support (Assessment) Act 1989 for the period 7 September 2012 to 31 October 2014. For the purpose of child support the father’s income was calculated to be $95,000 gross taking into account his income from all sources and after a calculation and assessment of his actual expenditure. In the same document the mothers’ adjusted taxable income was calculated to be $53,228. Neither party is in receipt of a grant of legal aid.

5. There is no doubt that the costs of the first day of the hearing before the Federal Magistrate were thrown away by virtue of the mother’s changing her position from the child spending four nights a fortnight with her father to the child not having any overnight time with her father until she was ten years old. However, due to the financial disparity between them I do not propose to make an order in favour of the father.

6. The position in relation to the ICL is different. The Legal Aid Commission provides and funds the services of an ICL in proceedings such as this from a budget which is notoriously overstretched. There is no reason why the mother should not contribute to the legal aid fund to the extent that its funds were thrown away by her change of mind. The ICL indicated that they would consent to an order that the mother pay their costs within one year and I propose to make that order.

I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 December 2012 .

Associate:

Date:  12 December 2012