K and D

[2005] FCWA 5

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: GERALDTON

CITATION: K and D [2005] FCWA 5

CORAM: MARTIN J

HEARD: 17, 18 & 19 NOVEMBER 2004

DELIVERED: 7 JANUARY 2005

PUBLISHED: 14 JANUARY 2005

FILE NO/S: PT 2038 of 2000

BETWEEN: K Applicant/Mother

AND D

Respondent/Father

Catchwords:

Child - residence - contact - alleged sexual abuse - inappropriate videos - supervision

Legislation:

Family Court Act 1997 - s66, s90 and s166

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Hedges

Respondent: Mr Giudice together with Mr Arndt

Child Representative: Ms Camp

Solicitors:

Applicant: Ruby & Associates

Respondent: George Giudice Law Chambers

Child Representative: Alison Camp Solicitor

Case(s) referred to in judgment(s):

Nil

1The issues for determination are the parties' respective applications for parenting orders in relation to their only child, a boy aged six years. The proceedings commenced by the mother's application filed 24 September 2003, in the Court of Petty Sessions, Geraldton, to which the father filed a response on 18

November 2003.

2The principal issue to be determined at trial was whether the child of the parties, a boy aged six years, should reside with each parent on a week about basis, or predominantly with the mother, having regular contact with the father, or predominantly with the father, having regular contact with the mother.

3The mother's position was that the father should continue to have regular contact with the child, but that she was the preferable residence parent, because of the risk of abuse while with the father, and because, overall, she is the more responsible parent. However, in the alternative, she proposed a week about arrangement.

4The father's preferred position was that he have residence of the child, with the mother having regular contact. This was mainly because there was a possibility of the mother changing the child's place of residence from town to town, or perhaps overseas, but also because he considered himself the more responsible parent, partly because of the abuse allegations raised by the mother. At trial, the mother maintained it was not now her wish to move, although at one stage she had considered moving with her partner. In the alternative, the father proposed that the parties share residence of the child on a week about basis.

5The child representative's position was that, in the event I found that the child was at risk of abuse from the father, the child should reside with the mother and the father "have weekly contact to the child upon such terms and conditions as will address the risk of abuse". In the event the court finds there is no risk of abuse to the child, the parties have week about shared residence.

6	1.	On 7 January 2005, I made the following orders:- All previous parenting orders be discharged.
2.	The parties have joint responsibility for the long term care, welfare and development of their child, J born June 1998.
3.	The parties have shared residence of the child on the following basis:-

(a) during school terms, the child reside with each parent on a week about basis, with the changeover to occur after school each Monday or after school Tuesday if Monday is a public holiday;

(b) during school holidays, the week about residence arrangement continue with the changeover to occur at 9:00 am Monday, unless either party seeks to take the child away from home n holiday for longer than a week, in which event that parent be permitted to do so on six week's notice to the other parent, with the other parent to have make-up time to ensure that, overall, the child resides with each party for half of the school holidays;

(c) the child reside with the mother -

(i) from 2:00 pm Christmas Day to 6:00 pm Boxing Day 2005 and each alternate year thereafter, and otherwise with the father;

(ii) from 6:00 pm Christmas Eve to 2:00 pm Christmas Day 2006 and each alternate year thereafter, and otherwise with the father;

(d) having regard to school commitments, the child spend some time with each parent on his birthday.

4. Each party have reasonable telephone contact with the child while he is residing with the other party.

5. Each party have sole responsibility for the child's day to day care, welfare and development while the child is residing with them.

6.(i) The parties be restrained by injunction from altering the child's principal place of residence from the area without the prior written consent of the other parent or order of the Court.

(ii) Each party give the other party no less than seven day's notice, except in an emergency, in the event they propose to take the child from the area during their period of residence.

7. Subject to further order of the Court, or the consent of both parents, the parties are restrained by injunction from having the child interviewed by any social worker, counsellor, psychologist or psychiatrist.

8. The parties keep each other informed as to any matters relevant to the child's welfare, in a contact communication book, except where the urgency of the situation requires more immediate communication, to include:-

(a) their telephone contact number and residential address and of any change within 48 hours of the change occurring;

(b) any significant health or medical issue concerning the child when in their care and the doctor and/or hospital at which the child is being treated;

(c) any significant health or medical issue of either parent that may affect the ability of that parent to care for the child;

(d) any issues relating to the education of the child and extra-curricular activities.

9. The applications otherwise be dismissed.

7 As foreshadowed, I now publish reasons for decision.

Background

8 The parties commenced a de facto relationship in 1995 or

1996. They separated in May 1999, the father being involved in a relationship with his present partner. There was a brief reconciliation in 2001. The child of the relationship was born on 5

June 1998.

9 The father is 46 years old and works part time as a contractor.

Since September 2004, he has resided with his partner aged 38

years. She has two children from a previous relationship who live with her, S aged 12, and R, aged 8. The children have regular contact with their father who lives in a nearby country town.

10 The mother is 37 years old and is currently engaged in home duties, also doing craft work from home. She was born overseas and most of her family live there. Her mother who lived overseas came in September 2003 and now resides with her. The mother now hopes to reside permanently in the town.

11 The mother has been in a relationship with a professional fisherman, aged 32 years, since August 2001. The couple do not live together, but have a stable relationship. The friend and the father were good friends until he started a romantic relationship with the mother. Their relationship is now extremely strained, and there has been violence between them.

12 The father initially commenced proceedings in this court in

March 2000.

13 On 28 June 2000, it was ordered, by consent, that the child reside with the parties for equal times each fortnight. The mother says she only agreed to these orders under pressure. She wanted to take J on a holiday to visit her family overseas. She couldn’t do this without the father’s consent as he had put the child on the Federal police watch list to prevent the mother leaving Australia with the child, by which time she had already travelled to Sydney. He had done this, he says, on the advice of his solicitors after the mother obtained a passport without his consent, which she was legally able to do.

14 After her return from overseas, after an initial period of three weeks with his father, J would usually spend from Monday to Thursday each week with his mother, and from Thursday to Monday with the father.

15 The mother became unhappy with these arrangements because she had no weekend time with the child, which became of significance when the child had pre-primary and then school commitments.

16 The mother's evidence is she had other concerns about the shared care arrangement as J was having problems with concentration at school. There were differences between the parties as to how best to handle J’s bedwetting problem.

17 There was a poor relationship between the parties, the police having been involved on several occasions.

18 Whatever her wishes, by August 2003, when the abuse allegations arose, the mother had not done anything to change the shared residence arrangements.

19 In June 2003, the father and his partner had been informed by S that he had asked J to suck his penis about three years previously. The father did not inform the mother of this.

20 On 15 and 16 August 2003, the child was with the father and was ill with a stomach upset. The father had put J in bed with him, and J had vomited and soiled the bed. He wanted his father close to him. The father took him to a general practitioner, Dr Findlay, on 18 August 2003, who excused him from school for one week. The child was returned to the mother on 19 August 2003.

21 On 21 August 2003, the mother's evidence is that the child made a disclosure to her that he had seen videos with people "sexing" and that he had played with his father's "doodle", and his father had played with his "doodle".

22 On 22 August 2003, the mother informed the father she was ceasing his contact with the child because of the allegations. The mother says he became abusive and angry towards her, and he says he reacted in disbelief. She telephoned the Department for Community Development in Geraldton, and was advised not to return the child to the father's care.

23 J was interviewed at the local Police Station by Barbara McKinnon, a DCD case officer, and Donna Ambler, a Police Officer. No disclosure was made.

24 The mother and J stayed overnight at her friends mother’s home without telling the father what was happening. The father contacted the police in her town as he was concerned about possible abduction of the child.

25 The mother and J returned home on 26 August, and J was examined by a general practitioner, Dr Pieter Brink, who was not the child's normal doctor. He concluded that there was a "high probability" J had been molested in the past because of the condition of his anal area and anus.

26 On 27 August 2003, the father filed a contravention application which was not eventually proceeded with.

27 The mother claims the child made further disclosures to her over the next few weeks and gyrated sexually to her. These disclosures are referred to in more detail subsequently.

28 As a result of the crisis, the applicant's father, who lives in the eastern states came to Western Australia for a few days and accompanied her to Perth where she visited the Legal Aid Commission. The applicant's mother came to stay with her als o in early September 2003.

29 On 10 September 2003, a friend of the mother's whom she had arranged to feed her pets while she was away, was confronted by the father, demanding to know where the mother was.

30 On 11 September 2003, the child was examined at the Princess Margaret Hospital Child Protection Unit by Dr Tracey Palmer.

31 The mother and J returned home from Perth on 12 September

2003.

32 On 19 September 2003, the child was interviewed by Barbara McKinnon again, and another senior DCD officer, Stuart Davidson. No disclosures were made.

33 On 24 September 2003, S and R were interviewed by the DCD officers. On that date, the mother commenced these proceedings in the Court of Petty Sessions in Geraldton.

34 On 2 October 2003, the child commenced counselling with

Paula Knife at the local Sexual Assault Referral Clinic.

35 On 17 October 2003, the child was again interviewed by the

DCD officers, and the father was reinterviewed on 24 October

2003.

36 Some supervised contact with the father recommenced, I

believe on 10 November.

37 Eventually, after these interviews, the Departmental officers concluded that the allegations of sexual abuse by the father were not substantiated.

38 On 19 November 2003, orders were made for the father to have supervised contact with J from 9:00 am to 5:00 pm on each Saturday and Sunday and such other times as may be agreed between the parties. The partner was considered an appropriate supervisor.

39 On 27 November 2003, in the Court of Petty Sessions, Geraldton, the following orders were made:-

"Until further order and upon the undertaking of the father (without admission) to ensure that the child is not exposed in any way to sexually explicit material and/or behaviour:-

1. The child in the relationship reside wit h the mother.

2By consent, the father exercise contact to the child on the following basis:-

(a) on each alternate week from 9:00 am Saturday to 6:00 pm Sunday commencing Saturday 29

November 2003;

(b) on each intervening week from 9:00 am Friday to 6:00 pm Saturday;

(c) from 2:00 pm Christmas Day to 6:00 pm Boxing

Day 26 December 2003;

(d) the contact to be suspended for the period being the first full week of January 2004 with make up contact to the father from 9:00 am Tuesday to

6:00 pm Wednesday of the second week of

January 2004; and

(e) further contact by agreement of the parties;

with overnight contact to be supervised by the father’s partner from 4:00 pm to 9:00 am and the father to ensure that the child J not be left unsupervised at any time in the presence of S."

40 It was ordered that the child be separately represented in the proceedings.

41 The father filed a notice of appeal against this decision on 12

December 2003, which was eventually discontinued on 29 April

2004, he says because of the delays in hearing it meant that he decided his resources were better directed to the substantive proceedings. In his notice of appeal he sought that the parties have shared residence for alternate weeks.

42 On 3 February 2004, Stephen Cohen, a clinical psychologist, was appointed as court expert. It was also ordered that the father have telephone contact on Wednesdays, and that the father be permitted to attend school events and class activities.

43 Mr Cohen's report was published on 23 March 2004. He then recommended that the child reside with both parents on a 50/50 basis with the handover being on Mondays via school, as this was a more stable arrangement for school.

44 On 4 June 2004, there was a defended restraining orders hearing in Geraldton and final violence restraining orders were granted in the mother's favour and her friend’s favour, against the father, interim orders having been granted in December 2003.

45 On 9 June 2004, it was ordered, by consent, that the interim parenting orders be varied as follows:-

"1. Paragraphs 2(a) and (b) of the Minute of Consent Orders made in the Geraldton Court of Petty Sessions on 27 November 2003 be varied to provide that contact he as follows:

(a) Commencing Friday 11 June 2004 and each alternate week thereafter from 9.00 am Friday to

4.00 pm Sunday;

(b) On each intervening week from 9.00 am

Monday to 7.00 pm Tuesday.

2. The father will notify the mother of the venue for contact in the event it occurs outside of her town.

3. The parties will notify each other in the event the commencement or conclusion of contact will be unavoidably delayed.

4. The mother will obtain a suitable book to be a “contact communication book” and any matters of relevance to the child will be communicated between the parties in

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writing in the “contact communication book” except where more immediate communication is required and each party will ensure that the book is sent with the child to and from contact.

5. Except in accordance with an order of the Court the parties be restrained from having the child interviewed by any social worker, counselor, psychologist or psychiatrist."

46 This was the position at trial.

Proposals for the child's care

47 Both parties proposed to continue to reside in the same town, and for J to continue to attend his present school. The mother intends to continue to reside in the rented accommodation where she and J have lived for about four years. The home is a three bedroom brick and iron dwelling which is adequately furnished and provides comfortably for their needs. The mother does not live with her friend, who is often away fishing, particularly during the crayfish season.

48 The mother previously had her own craft shop, but now works from home doing leadlight art. According to the court expert, she told him there had been problems with her business because of talk in the community regarding drugs, but then later in the report he referred to the effect on the business of the allegations. However, the mother's evidence in her trial affidavit was that in June 2004, she closed her shop as she was extremely upset by these proceedings and the apparent knowledge of many local people of them.

49 The mother maintains J from her Centrelink payments and the income received from her business, with minimal child support payments.

50 As at September 2004, when she swore her trial affidavit, her evidence was that she had only ever received three child support payments from the father, in December 2001, July 2002 and October 2002.

51 The father is self-employed as a contractor, carrying out maintenance and odd-jobs. His work hours are flexible. His evidence is that "due to the emotional pressure I have been under as a result of these proceedings and the applications by the mother and

her friend for violence restraining orders against me, I have been unable to continue the operation of that business on a full-time basis". He and his partner are trying to set up a new business selling reptiles as pets and a nursery growing wildflowers. They would be able to organise their work hours between them.

52 The father has sold his home, which was in the same street near his partner, and moved into her home in September 2004. This was partly to realise funds to pay legal fees. It provides suitable accommodation for the child.

Relevant factors

53 Section 90 of the Family Court Act provides, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. Section 166 provides, in determining what is in the child’s best interests, a Court must consider a number of matters set out in sub-section 166(2).

Any wishes expressed by the child

54 J is only six years old, but clearly wishes to have frequent and extensive contact with both parents. The court expert reported that he wants to live with both his parents.

The nature of the relationship of the child with each of the child’s parents and with other persons

55 J has a very close and loving relationship with his mother and a positive and enthusiastic relationship with his father. He missed his father when he was not seeing him. J likes his mother’s friend and gets on well with him, and thinks that his father’s partner is “pretty ok”. J gets on well with S and R. He has described S as a “really good person to play with".

The likely effect of any changes in the child's circumstances and the effect on the child of separation from any person with whom he has been living

56 J is used to having frequent contact with both parents and neither party suggests this should change. He has resided primarily with the mother since November 2003 when interim orders were made for him to reside with the mother and have supervised contact with the father. She says now “J has become more settled and happy in his home and school life” because of the more settled arrangements - spending most of the school week with her. The

father claims that J has settled down because he commenced seeing his father again after a long break. No doubt, having regard to his young age, J would adjust to spending more or less time with each parent, providing he was regularly seeing the other parent.

The practical difficulty and expense in respect of a child having contact with a parent

57 Both parents reside in a small country town, in close proximity to each other. There does not appear to be any practical difficulties with contact. It is accepted by the parties that because of their poor relationship with each other, it is desirable for them not to have contact with each other, and for changeovers to occur at school.

The capacity of each parent to provide for the needs of the child

58 The father has the capacity to provide for the physical and intellectual needs of J. He has been diagnosed with ADHD and took dexamphetamines for a couple of years, ceasing in 2003. He has recently recommenced the medication. He was previously under psychiatric treatment in 1997/1998. He has been diagnosed with depression and has been on anti-depressants since 1999. There was no evidence to suggest that these problems have had an impact on his capacity to parent.

59 It is clear that the father suffers from problems with anger. He has voluntarily attended an eight week Anger Management Course.

60 He is also Hepatitis C positive. This could have been caused from a home-made tattoo or brief previous intravenous drug use many years ago. The mother has always been aware the father has hepatitis, and did not pursue this as a relevant issue. There was no evidence at trial that J was at risk in this respect.

61 I am satisfied that the mother is capable for providing for all of J’s needs. The mother has acted protectively towards J (if anything, too protectively) given what he has told her and the circumstances of the investigations.

The child's age, sex and maturity

62 The evidence was that J is progressing reasonably satisfactorily and has no special characteristics affecting my decision. He is a happy well-adjusted boy. During 2003, J was referred to an occupational therapist at school due to his lack of concentration and difficulty focusing on more than one task at a time, to develop fine motor skills. This is not an uncommon

problem, particularly with boys. This was still a problem last year, and both parents have been involved in trying to address it, although the principal of the school said that the child's teacher had reported some improvement recently.

The need to protect the child from physical or psychological harm

63 It is necessary to consider the evidence in this regard at some length.

64 Although there are some discrepancies as to the timing and detail, it appears that in about 2001, S had got J, then a two year old, to suck his penis in the bath or a bedroom.

65 The applicant's mother gave evid ence that in early 2002, she had been visiting the mother and J. She had been bathing J one evening when he said "see this grandma" and held a funnel-shaped toy bubble pipe up and said "you can put it up there" and pointed to his bottom. She was shocked and said "don't ever do that J, did someone tell you to or do that to you?" J did not reply and changed the subject. She was "extremely shocked" and mentioned the matter to the applicant. The applicant's mother's evidence is that she raised the issue with the respondent. He said he "lined up" the children, S and R, and quizzed them about this, and they denied doing anything.

66 The father's evidence was that he could not recall doing this.

67 It was not until June 2003, that the father and his partner found out about the incident when J had sucked S's penis about two years previously. The disclosure was made by S while the respondent and J were at his home, and the respondent's approach had been to become very angry and this upset the children. He immediately took J home. Later, he had apologised to S and reassured him of his affection and that he was proud of him for owning up.

68 The Department for Community Development's records show that on 23 June, contact was made by both the father and his partner with the Parent Help Centre in relation to this incident.

69 There had also been an incident where local children, including S, but not J, had been found with a sexually explicit magazine.

70 The mother's evidence is that, on 21 August 2003, J made a disclosure to her which she recorded at the time. She tried to write

it out verbatim, so some words were crossed out and replaced with what she now says are the correct words. It reads:-

"I was tickling J, he jumped on my knee and gyrated against my stomach.

I said “don’t do that, it’s rude” He stopped then I said, “Where have you seen someone doing that?

J - at my Dad’s.

Me - Did you stay up late a (sic) watch telly you weren’t meant to?

J - No I watch with my Dad. Me - What on telly?

J - On video.

Me - What are they doing on video?

J - Sexing (he looked shy when he said this like he should be). Me - With there (sic) clothes on? J shook his head.

Me - With no clothes on?

J - Yeah.

Me - How often do you watch the movies? more than once? J - Yep lots with my Dad.

Me - lots, not lots like all the time? J - yeah we do.

Me - do you, lots? I’ll ask your Dad and he’ll tell me the truth

– lots or not lots?

J - not lots.

Me - does your dad touch you when you watching them? (crossed out was where does your Dad touch you when you're watching them)

J - he play with my doodle (crossed out was “my Dad”) Me - do you play with his doodle?

J - yep.

Me - wow.

71 The mother telephoned the Department of Community Development on 22 August 2003. She was advised not to return J to his father’s care. Her evidence was that this was the first time she says she heard J use the word “sexing”.

72 On 25 August 2003, the mother's evidence is that J made further disclosures to his mother. She was getting him into the bath, when he said, according to her record of this conversation:-

J – Do you want to have sexing in the bath? Me - no.

J - come on get in the bath and sex with me.

Me - I don’t know what you mean, what’s sexing?

J - it’s when you stick a doodle in a fanny. Come on jump in. Me - in the bath, have you done that before?

J - yeah.

Me - oh, where? J - at Dad’s.

Me - in the bath, with your dad, how do you do? J moved his doodle up and down, and said

J - like that.

Me - but that’s not sexing, and your dad doesn’t have a fanny so you don’t do sexing. J laughed

J - he’s got a bum hole, a poo poo ...[indecipherable]. Me - so that’s no good.

J - here you are mum, look at my bum hole - he put his finger down there - look at my bum - he had a little car and was pushing it against it.

Me - stop that silly - and walked away. J kept playing in the bath.

73 At the interview on 25 August, with Barbara McKinnon and Donna Ambler, it was recorded that “J spoke cheerfully about his father and mother, indicating a positive relationship with both parents. J made no disclosure”.

74 The mother had afterwards asked J would he like to tell them what he had told her in the bath that morning.

75 I note that J seemed to have a reasonable understanding of good and bad touching, and protective behaviours.

76 Dr Brink’s report, of 26 August 2003, states:-

“There is a red dermatitis rash on the skin around the anus for about 2 cm from the anal margin. This rash can be caused by chafing but also from a low grade infection such as thrush. There are no signs of bruising or scarring. It is noted in his medical file that J had an anal fissure in July 2002, he was referred to Mr Menezes, Surgeon in Geraldton, for further treatment. The anal sphincter on parting the buttocks is lax which causes a funnel appearance. This according to a medical article I read in a South African publication some years ago strongly suggests sexual molestation.

OPINION: there are no signs of recent bruising or molestation.

The history of an anal fissure, the dermatitis of the peri-anal skin as well as the “funnel shaped” anus makes it a high probability that J has been molested in the past. Further corroborating evidence should however be sought.”

77 The DCD Investigation Outcome Report refers to the probative value of his observations as being low.

78 On 27 August, the mother had a further conversation with J regarding the videos he had said he watched whilst in his father’s care. She again recorded this conversation.

Me - You know those videos you told me you watch with your Dad?

J - Yeah, they have little boys and girls (crossed out is the word “kids”) on there sexing, T is in them.

Me - T? (crossed out is what is she) on the video? (I was shocked, she is a girl in his class). I don’t think so (crossed out is what she doing).

J - Yeah she’s (J giggles) sexing with a little boy, I like T.

Me - Oh, ok, well how come you didn't (crossed out is “why did you not”) tell Barbara and Donna about those videos yesterday in Geo (sic) when they asked you about videos you watch?

J - Dad told me it was a secret.

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Me - oh honey, it’s not a secret, you told me. There’s nothing wrong with telling them.

J - but dad said swear words to me.

Me - (crossed out is your dad swears all the time though) what did he say?

J - fuck (he said it quite angrily).

Me - oh he says that all the time though. J - he said shit, bugger, bloody bastard.

Me - oh my sweet heart, don’t listen to your dad, it’s ok to tell, see, I’m not getting angry you silly billy.

I could see his mind switch off and he walked out and played in his bedroom.’

79 In her report of 11 September, Dr Tracey Palmer of the Child Protection Unit, stated that J’s “genital findings were completely normal” but she added at the conclusion of the report:-

“It is possible to touch children in a sexualised fashion with stroke, lick and other forms of contact that are inappropriate but also leave no physical record. A normal physical examination therefore in no way proves or disproves that sexual contact has occurred. The past history of having an anal fissure could easily be the result of medical conditions such as chronic constipation or could be due to penetration of the anus by an object. The history of an anal fissure is a highly non-specific feature but in the context of sexualised behaviours and a disclosure of watching pornographic videos and inappropriate physical contact to his mother, maybe of some relevance and I feel that a further interview with J would be appropriate.”

80 The mother says that on 17 September 2003, she was in the kitchen with J and her mother when J started gyrating against her leg. She then asked him what he was doing and he replied “sexing”. When she asked him what sexing was he put his arms out to her and she picked him up and he then gyrated against her stomach. His grandmother asked, where do you do that and he replied “with my Dad”.

81 She also said that she had been told that a young girl had overheard S boasting to his friends about "how he gets J and R to

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do things to him, ie. Suck his doodle". Therefore, the mother did know something of the incident with S even though the father had not told her.

82 On 19 September 2003, J was interviewed for the second time by DCD caseworkers Barbara McKinnon and Stuart Davidson. The file notes indicate “J presented as a happy child, comfortable in the presence of adults. J demonstrated no indications of a troubled child, or one who had experienced abusive behaviour”. J made no disclosures during this interview.

83 The father was also interviewed by a DCD officer on 19 September

2003. His partner was present. During this interview, it was disclosed that S had molested J. It was the father’s evidence that sometime in 2003 he became aware that something had occurred because R had approached him and told him that S had a “dark secret”. The children at school had been teasing S calling him “Sheba”. The father had heard this nickname but thought nothing of it. Notes from the interview read:

“The father confronted S about the secret at a barbeque in July

2003. (He spoke to S in the lounge area, J was in the bath at

the time.) The father told S it was ok to tell him about “the secret”. According to Peter, S told him it happened when he, S, was in his pre-primary year; S said to him “J and I were in the bath. I got J to suck me off and C saw”. The father couldn’t quite remember if S said that C saw or whether S said he had told C later about the bath incident.

Following S’s disclosure the father said he became very angry and went into the bathroom to check on J. J was crying in the bath - The father asked him “Do you know what I am angry about (rhetorically) it’s nothing for you to worry about. Don’t let anyone touch you in the private parts”.

I asked the father if it was possible J had overheard him talk to S. The father indicated that he did not think J overheard, however, the father said J aware that his father was angry and hence J’s tears.

His partner interceded at this point and said the father had really lost it after talk with S and after talk to J had stormed from the house. The father said he did not recall becoming so emotional to the point of “losing it”. His partner re-iterated the intensity of his emotion at the time and said that J had come out of the bathroom crying and she had comforted him.

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The father said he had been very shocked and angered by S’s disclosure.

The father and his partner said they encouraged S to be forthright with them and it was okay to tell them anything.

The father said the teasing i.e. J and S being called “Sheba”

had only started up this year. …

The father mentioned that two years ago he came across a group of children looking through a pornographic magazine in a vacant house a couple of houses down from his house. …

The father said S would have been 6 yrs. of age when he found the magazine and he thought maybe S had been acting out visual images he had seen in the magazine with J in bath that time. ...

I asked the father if he had ever watched pornographic/sexual videos with J. The father replied “no, no way!”

84 Both the father and his partner stated that they do not have pornographic videos in their home.

85 Shortly after this incident occurred, his partner had contacted the Parent Help Centre in Perth for advice. The father also phoned approximately a week later.

86 The father did not report this incident to the mother. In fact, he never told her, not even when she had initially telephoned him and told him that J had made disclosures of sexual abuse. He says initially it did not occur to him that J’s disclo sures could have related to the incident between him and S in about 2001. He says he was in a state of shock at the time. It was not until afterwards that he discussed the possibility with his partner. He still however, did not inform the mother. For this he must be strongly criticised.

87 On 22 September 2003, DCD officers contacted Alan McGregor, the relieving principal at the children's school. The DCD file notes indicate Mr McGregor said there were no problems at school with the children. One of S’s friends had been observed simulating masturbation in the school yard and had been disciplined. Sex education had commenced at the school and a number of children had been observed acting in a sexualised manner.

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88 On 24 September 2003, Stuart David son and Barbara

McKinnon interviewed S and R . Their file notes state:

“...S immediately told us that he had asked J to suck his penis two years ago. He did this after seeing oral sex being depicted in a magazine in a …newsagency shop. S said another boy, C had witnessed J suck S’s penis. C and S had discussed this incident which had occurred two years earlier. S said a boy known as "P S" had over heard their conversation and began spreading rumours. P S had made up the nickname Sheba (a combination of the names S and J) and had used it to tease them. S expressed relief in talk about the incident and said although the father had initially been upset with him, both his mother and J’s father had praised his honesty and encouraged him to tell them anything he might be worried about as he had their full support.”

89 "P S" could not be interviewed as he had moved from the town. However, no attempt was made to interview C to verify S’s story.

90 Stuart Davidson's evidence was that he thought S was being honest, and his body language did not suggest he had minimised what occurred.

91 On 25 September the mother says that she was watching television when J started to dance, swinging his hips from side to side. His grandmother spoke to J and again the mother recorded the conversation. It reads:

‘His grandmother said, “what’s that you’re doing?”

J replied “that’s my sexing dance” and then started a gyrating movement.

She asked again “what’s that” J said “sexing”.

“Where do you see that?” His face went blank. “Do you do that at that older boy's place, what’s his name, I can’t remember?

“S”.

“Yes, at his place?” J’s face went blank and stopped dancing and didn’t say any more.’

92 On 17 October 2003, Stuart Davidson and Barbara McKinnon interviewed J for a third time. This is because the mother was not

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satisfied with the previous interview of J, as J had indicated that he had been scared by one of the interviewing officers. The file notes report:

“(When we asked how he felt when his mother told him we would be returning to do more talk, his immediate response was “yippee” which suggests he was not too uncomfortable with us). It was also necessary to re-interview in order to ask more direct questions as J allegedly continued to say things to his mother which he had not mentioned in the interviews.

During the interview J’s main response to questions about what he said to his mother was “I don’t remember” or “No”.

Further on, J said his father had touched him on the bottom, hand flat and made references to being in bed with the father and said he kicked him out of bed but then made reference to kick Dad off the couch. It was a very protracted interview over two hours interspersed with ten minute play breaks. J provided several different versions of the story each time. The interview was terminated when it became obvious the child was bored with the subject.”

93 J did make some varied disclosures of a sexual nature during this interview. The court expert's comment on these was there was an aspect that as he was being interviewed, he must provide the person interviewing with something.

94 Barbara McKinnon's Investigation Outcome Report dated 21

November 2003, endorsed by her team leader, Vicki Tyler, states:-

"J presents as a bright, mature and happy 5 year old who enjoys interaction with his friends and blended family. He spoke of engaging in fun activities with his mother and his father and smoothly switched from discussion about activities at both houses as though there was no clearly defined difference between his two abodes.

J spoke readily about fun activities with Dad: dirt-bike riding, building fortresses, fishing, watching motor-bike videos and Dad joining in to play with him and his friends. He also proudly talked about the father being a good soccer player and

‘still part of the team”. J indicated that he loves both of his

parents, and he is missing seeing his dad.

J has not evidenced any indicators of abuse. In appearance he looks healthy, is well co-ordinated, smiles and laughs readily and articulates confidently about his family without any sign

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of distress. The Pre-primary teacher reports that J is progressing normally at school and there are no concerns.

The commencement of sex education classes at the District School could have been the catalyst for S and his friend to revive the memory of the incident with J suck S’s penis two years earlier. The sex education classes would have initiated a fair amount of sex talk in the playground which J may have overheard and become curious about, particularly as he is at that developmental stage where pre-schoolers start to become more aware of the pleasurable sensations of the genital area.

J presents as a happy forthright child who has good relationships with his parents and with his partner’s children, R and S. He has friends from school who join him in play activities at both parents' homes.

J is easy to engage and he confidently initiates conversation with his peers and adults. In all the conversations we had with J, he displayed no fear of his father.

There are difficulties with the allegations made by Megan. She used a number of leading questions which make it difficult to ascertain the validity of the allegations.

His parents have a conflictual relationship with the Police evidencing this ongoing conflict over the past number of years.

J has been interviewed on three occasions. He has been asked direct questions about the allegations yet has not disclosed. Medical reports have been obtained from local doctors and PMH stating no evidence of sexual abuse. …"

95 From the information available to the Department, I am of the opinion that the allegation of sexual abuse cannot be substantiated.”

96 The recommended safety and intervention plan was that the parties undergo mediation, J, S, and R undergo a protective behaviours program, and J have counselling.

97 The mother was most unhappy with the conclusions reached by DCD and the investigatory process. The DCD records of interview indicated J made several references to incidents of his father inappropriately touching him and to watching videos where people were “sexing”. She could not understand how these references were not considered “disclosures”. At the trial, Stuart

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Davidson explained that as J had been inconsistent with his answers and had responded “no” or “I can’t remember” to many of their questions, they did not class his comments as “disclosures”. Mr Davidson also said that throughout the interviews J presented as a happy and comfortable child who appeared to have no problems with interacting with adults. There are particular signs the caseworkers look for during the interviews and none of these were present. When J had made the comments about the videos and the touching he appeared to be telling a story not recounting an actual event.

98 The process of how the case officers determine if a disclosure has been made was not really explained to her or to the father.

99 It is noted that the father was also displeased with the investigatory process. He says workers from DCD told him he was not guilty of the allegations at an early stage of the enquiry. He was concerned that they had reached this conclusion without even speaking to him.

100 J also had counselling with Paula Knife, a sexual assault counsellor at the Sexual Assault Referral Centre, on seven occasions between early October 2003 and February 2004. Paula Knife’s report dated 24 November 2003 states:

“On his first 5 occasions there had been no disclosures of anything having happened to him. Although he was reluctant to talk about his father and what they did on access visits only indicating that they have fun. …

On his partners sixth visit 18/11/03 J disclosed that while he was at his father’s he and his Dad watched sexing videos. J was asked how he knew that they were sexing video’s and J replied that his dad had told him they were and that the men were rubbing their doodles on the ladies fannies. He then stated that once the men had finished having sex with the ladies the men turned into monsters that looked like big dragons and took the ladies sway (sic) and had sex with them again. Once again he was asked how he knew they had sex, he replied that the monsters rubbed their doodles on the ladies' fannies. J was asked if his father had been aware of him watching the video and J replied that his father knew, as they would watch them together when they stayed up late. J was also asked if he had seen the video just once and he replied that he seen it (sic) more than once but could not remember how many.

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On his seventh visit J was worried that his father may now go to prison as he had told someone about the videos. When he was questioned about why he thought that his father might go to prison he replied that his father had told him. J said his father told him at the park when they had their last visit. ...

Concerns for this child are that he has a sexual awareness that appears to be that of a much older person. J described the sexual act between male and females very well, he also has knowledge on anal sex that is far beyond what is appropriate for a child of his age. Although J’s sexual knowledge appears not to be from any inappropriate physical behaviours it does not lessen the impact that it can have on his development. His behaviour has already impacted on him to extent that his mother had to seek out counselling for him because of his inappropriate sexualized behaviour. If his behaviour is not modified now by getting him to understand that it is inappropriate to act in this manner there is a chance that as he matures his behaviours will become more explicit which could see him becoming a sexual perpetrator."

101 Paula Knife was suffering a serious illness at the time of trial and was not available for cross-examination.

102 The father's evidence in relation to the statement at the seventh visit was that the child has asked him why contact was being supervised. He had said "some people made allegations against me. People who do it go to jail". J had said "are you going to jail?" and he had said "no mate".

103 The mother's evidence is that, after a contact visit on 10-12

November 2003, J told her that the father had told him that if J told about the sex videos then the father would have to go to gaol.

104 The father’s position at trial was the mother had appropriately had the child's disclosures investigated, but should have accepted the conclusion of DCD officers, that they had not been substantiated.

105 The mother has very real concerns that J has been exposed to inappropriate sexual behaviour, having regard to his statements, his behaviour and his sexual awareness. She was not made aware of the statements to the DCD officers until the subpoenaed file was inspected prior to trial, and this revived her concerns.

106 I am satisfied the mother did not invent the sexual abuse allegations, or pursue them for an ulterior motive, to reduce the

child's involvement with his father, although this was the immediate result.

107 The court expert's conclusions in relation to the issue of abuse, having regard to his proposal for equally shared residence, was that it was unlikely the child had been abused by the father. In relation to S's abuse of the child, the issue had been dealt with appropriately, and J seemed to have a good relationship with S, so it had not, apparently, affected him. The court expert was more concerned about the affect on the child of the parties' conflictual relationship. While he regarded the mother as being more defensive and closed than the father, I do not regard this as being an issue of significance to my determination.

108 On behalf of the mother, Dr Phil Watts, a clinical psychologist, was consulted to critique the court expert's report. In relation to the sexual abuse allegations he said:-

"24. The Court Expert reports interviewing the child and having no disclosure. This could be the result of the fact that there was nothing to disclose. However, a child in these circumstances is aware of the significant repercussions which happen as a result of saying things and may not disclose for other reasons. In this particular case the disruption to the relationship with his father was severe (going from a high level contact to restricted access). Therefore the child has a good reason not to say anything. This option does not appear to have been canvassed by the Court Expert.

25. J’s advanced sexual knowledge is to some degree a concern. However, his expression “sexing” is not an uncommon term among children but rarely do adults talk about “sexing” each other. Therefore, it is quite possible that it has come through his contact with other children. The level of detail that he is aware of is suggestive of a fairly significant exposure and would cause anyone concern. However, without directly assessing J and his environment it is difficult to ascertain the veracity of his statements or the source of his views."

109 I have concluded that the child is not at unacceptable risk of abuse from his father and, while one can rarely be 100% certain

about these matters, any risk is extremely minimal. My reasons for this conclusion can be summarised as follows:-

•The father touched J in the genital area for medical reasons shortly prior to the allegations being made.

• J has been suffering with problems with an anal fissure from

2002, and the father sought medical treatment for this. Had

the father been the perpetrator of sexual abuse, it seems unlikely he would take J to the doctor for these types of symptoms.

•The father has consistently denied all allegations of showing J inappropriate videos and of sexual contact. His demeanour in the witness box and during the trial, his primary concern for how the allegations will affect J, and the way in which he dealt with DCD satisfy me that it is extremely unlikely that he has intentionally exposed J to pornographic material or had any inappropriate sexual contact with J.

•It is possible that the mention of secrets could have arisen, as the father could have told J to keep the incident about S's behaviour, in June 2003, a secret. The father deliberately kept the incident from the mother, and J did not tell his mother of the incident on the day of the barbeque.

•Experienced DCD officers have interviewed J on three occasions and have concluded the allegations are unsubstantiated.

•The reports from J’s school say that the teachers had not observed anything of concern in J’s demeanour.

•J has never shown any fear towards his father and has said that he missed him when he was not having contact with him.

•S has acted sexually inappropriately towards J. He has been dealt with appropriately. He appears very remorseful about what occurred. The father and his partner now say they more closely supervise the children and it appears highly likely no further inappropriate sexual behaviour will occur between the children. Obvio usly, it is imperative the father and his partner remain vigilant. S also had counselling at his school.

•It is quite likely that J could see sexual behaviour from watching readily available television programmes or videos. It would not have to be pornographic material.

•J’s allegations, to some extent, were made responding to leading questions.

•There is evidence that J is prone to exaggeration or has an active imagination. The court expert, at p 14 of his report, said:-

"It may well be that J uses a smattering of information and then blends the story up to exaggerate. This may well account for his description of various movies, and other alleged disclosures, which need to be evaluated within the milieu of distrust and antagonisms between the parties of which he is well aware."

•There is a high degree of inconsistency in J’s allegations. For example, J told the DCD caseworkers that the people in the sexing videos were flying monsters. He told his mother that a girl from his school was in them. He has also said there were little boys and girls in them.

•J was not consistent about where the abuse occurred, what he or his father was wearing, where his father touched him, how many times his father touched him or whether he touched his father on the doodle.

•J told the DCD caseworkers that his father strapped him down when he watched the videos. Even the mother acknowledged that she did not believe this had occurred.

•J had seven counselling sessions with Paula Knife and made no disclosures until the sixth. The court expert said it was somewhat surprising, having regard to the seriousness of the allegation, that the child attended only one more session.

• J has received instruction in relation to protective behaviours.

110 I accept that J has probably acted in a sexual manner in front of his mother and maternal grandmother.

111 I do not regard the evidence of the mother’s friend as being of significant probative value in relation to this issue.

112 His evidence as to the amount of times J sexually gyrated at his mother, and the refrigerator, was not credible. He referred to "10, 15, 20 times", and later "10, 20, 30 times". I am prepared to accept he may have seen some sexually explicit behaviour by J, but not to this extent.

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113 There are possible explanations for the child's statements. For example, the court expert, at p13, of his report said:-

"It would appear that given the relatively small community and J's association with older boys including S it may well be that they are responsib le for his advanced knowledge of sexual activity."

114 Apparently his partner’s ex-partner, had an interest in the local sex shop. S has said he accessed pornographic material somehow while with his father.

115 I am not satisfied that if the father had pornographic videos in his possession in 1996 and 2001, for his partner (and the applicant's use) as adults, that this means that more recently J has been exposed to pornographic material. Both he and his partner deny having such material in their possession.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents

116 Both parents are committed, caring and generally responsible parents who are doing their best with J. Both are actively involved in his school and extra-curricular activities. Stuart Davidson, for example, referred to both parents having done a terrific job as J is a mature and great kid, and that the shared parenting had worked well for the child. The court expert supported this.

117 The father has to be criticised for failing to tell the mother of the incident between S and J. It is obvious that he did this because of his concern about risking the shared residence arrangement. The mother needs to be sure that the father would tell her of any serious matters concerning J in the future.

118 The father was upset that the mother did not accept the report from DCD - “you would think that she would have been elated when DCD told her that there was not a problem. However, being the professional victim she then pushed on taking J to SARC on a number of occasions and got the report done. The report then contained allegations different to the ones reported by the mother”.

119 Both parties have reacted appropriately in most respects, having regard to the very difficult circumstances created by the disclosures. However, it was not in the child's interests to suddenly not see his father for a lengthy period. The child was given no explanation for this. The mother's evidence was that the child had only once asked why he was not seeing his father, but admitted

there were more occasions. She said it did not occur to her to arrange supervised contact. It should have.

120 The court expert referred to the father causing confusion to the child by raising concerns about the mother going to overseas, and the mother causing confusion by telling J that children should live with their mothers.

121 Both parties have shown a propensity to involve the police in their domestic disputes, there being several reports even before August 2003.

122 An issue of concern is that J has missed quite a lot of school, as a result of the allegations and their aftermath. I do not accept it was in the child's interests to spend more than a minimal time off school while the allegations were investigated, rather than several weeks. The mother said she was concerned for his safety, and she did not feel safe until orders were in place in November. I consider this an overreaction in the circumstances. The mother did not know how the child explained his absence to his friends.

123 While I am unimpressed by the father's child support record, this needs to be assessed in the context of the shared arrangements in force until November 2003. Since August 2003, the father has had heavy commitments for legal fees, having sold his house partly to meet them.

Any family violence or family violence orders applying to the child or a member of the child’s family

124 The relationship between the father and mother, and the mother's friend, has been volatile. He broke the father's jaw in

2002, but no police action was taken. The child did not directly

witness the incident, but was nearby.

125 The mother and her friend sought an application for a violence restraining order against the father in December 2003, and a final order was granted on 4 June 2004, to extend for two years. The learned Magistrate was satisfied that both the father and the friend had been at fault in relation to violence and threats of violence. The father feels he was prejudiced since, for financial reasons, he represented himself at the hearing. Since the interim restraining order was granted, handovers have occurred largely without incident.

126 There is no doubt that the child has witnessed verbal altercations between the parties, the mother says the father has been

abusive to her in the child's presence, for example, in October

2002.

127 Stuart Davidson felt that the conflict had not yet had an impact on the child.

128 The court expert, at p 10 of his report, said:-

"If this anger continues between the parties, J will feel that he needs to choose which is something he is avoiding at this point in time, but may result in undesirable emotional consequences for the child that loves both his parents."

129 He referred to both parties' anger causing confusion to J.

Whether it would be preferable to make the order least likely to lead to the institution of further proceedings

130 I do not accept that any of the orders sought by the parties are more or less likely to lead to further proceedings.

Conclusion

131 The issue to be determined is whether it is in J's best interests to:-

• reside with his mother and have contact with his father from

Thursday to Sunday in alternate weeks;

• reside with his father and have contact with his mother each

Wednesday overnight, and on alternate weekends;

•reside with each parent week about, which was each parent's fall-back position if their application for primary residence was unsuccessful;

132 It was accepted that the child's place of residence would not be changed from the town without the parties' consent or further order of the Court.

133 The court expert recommended that residence be on a 50/50 basis with the handover being on Monday's, via school, to ensure a more stable arrangement.

134 The child representative proposed that if I concluded there was no unacceptable risk of abuse with the father, that a week about residence arrangement was appropriate.

135 The court expert was asked directly as to the impact, if any, of the child being cared for by either parent. He said, at p 15 of his report:-

"The child would benefit greatly by being cared for by the father but would suffer a great deal in the sense of loss if he did not see his mother on a regular basis. The father has a lot to offer J in terms of parenting and a male role model. His relationship with his partner benefits J because of the socialisation skills that he is developing through the contact with her children. J would certainly struggle to adjust to full- time care by his father and access only with his mother on a fortnightly or weekly basis."

136 As to being cared for by the mother, Mr Cohen said that:-

"J would and has benefited greatly from being cared for by his mother. She clearly has a good capacity to care for him, however there has been periods when he has not seen his father and although Ms K says it does not appear that J has worried too much about it, he is a bright young man and is unlikely to be mentioning his father to his mother as he well understands her attitude towards Mr D. He does however miss his father when there have been lengthy periods that he has not seen him."

137 Both parents are loving committed parents who are appropriately and actively engaged in all aspects of J's life. Both are very child focussed. As emphasised by the court expert, "the greatest risk to J's emotional development is the high prevalence of anger between the adult parties in this matter. This anger appears to be being pursued by the adults for a variety of reasons, none of which are in J's best interests".

138 I accept that, generally speaking, both parties have acted appropriately in relation to their response to the allegations made by J. However, these, and their aftermath, have further fuelled the anger between the parties. The whole issue has had a terrible impact on the family as a whole. Although the relationship between the parties was very poor prior to this, as a result of the allegations, J did not see his father for several weeks, when he was used to being with him for about half of the time. He missed several weeks of school. His normal life was significantly altered, and both parties went through an enormous amount of upset and inconvenience, not to mention expense. This also must have had an impact on J.

139 As to the parties' ongoing relationship, Mr Cohen said, at para

15 of his report:-

"The father has animosity towards the mother not for the initial allegations against him because he understands the investigation of those are important, but it is her pursuance of these allegations after receiving the report from the Department of Community Development saying that they had no basis. He perceives the ongoing chasing with SARC to get the report that she wanted as a source of antagonism towards him."

140 As to the mother, he said:-

"The mother believes the allegations and is very keen on the pursuit of them. She is very angry at DCD about the outcome of their investigation and has pursued the matter with SARC. Now that the allegations do not appear to have been substantiated the mother feels very victimised even though none of the allegations have been made against her."

141 It is very important that the parties do their best to deal with these issues between them, perhaps with the assistance of some counselling, so that they may appropriately cooperate in the parenting of J in the future. It is obvious that it will take some time for any trust to develop.

142 A significant issue for me in deciding whether it is in J's best interests to equally share his time with each parent, or live predominantly with either parent, is the importance of the mistake made by the father in failing to inform the mother of the child's abuse by S, and his lack of frankness, in general, both to the mother and to the Court, for example, as to the possible source of his Hepatitis C. While it is understandable, having regard to the poor relationship between the parties, and the father's close relationship with J, that he would not wish to disclose any information which could prejudice this, the mother's actions in relation to the disclosures in August 2003, to some extent, appropriate though they were in the circumstances, adds strength to his concerns about the mother's possible response. His lack of frankness meant that the initial enquiries were hampered, and, of course, also meant that the mother, with good reason, turned out to have every right to be concerned about what happened to J while with his father. If J sees less of his father this would be, in a way, punishing him for his father's mistakes, rather than acting in his best interests. Having carefully considered these issues, and the other factors which I am required to take into account, I have determined that it is in J's best

interests to reside with each parent on a shared residence basis, week about, for the following reasons:-

•This was the proposal of the child representative and the court expert.

•Having had an opportunity to observe the father throughout the course of the proceedings, and having regard to the evidence as a whole, I am satisfied that the father would not knowingly do anything to prejudice J's welfare.

•Both parties have a great deal to offer J, in different ways, and equal shared residence will provide J with the opportunity to spend substantial periods of time with both his parents engaged in activities he enjoys with each of them.

•The mother became concerned about shared residence in the past, largely because she did not have weekend time with the child. On a week about basis, each party will have opportunity to spend weekends with J.

•Both parties have been very actively involved in the child's school and there is more opportunity for both to continue to have equal involvement if J spends equal time with both of them.

•Neither party could have real concerns about the other's ability to properly care for J, when each are proposing he should spend several nights per fortnight with the other parent. To be blunt, if I am terribly wrong about the risk of abuse to J, the mother herself is proposing the child spend substantial periods with the father in which it would be possible for inappropriate behaviour to occur.

•J is used to spending substantial periods of time between each home, and this arrangement had endured for years prior to August 2003.

•Since the parties live in a small town, and live close to each other, a shared residence arrangement is very practicable.

143 There was no dispute as to the appropriate further orders between the parties. I have included a provision for reasonable telephone contact with each parent while the child is residing with the other parent and a provision that the child should spend some time with each parent on his birthday. I have also provided for the parties to have the opportunity to take the child away on holiday on notice to the other party. I accept the suggestion of the court expert

and the child representative, that both parties should not have the child interviewed by any social worker, counsellor, psychologist or psychiatrist unless they consent, and that a communication book is desirable.

I certify that the preceding [143] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate