KENDRICK & KENDRICK

[2016] FamCA 1047

FAMILY COURT OF AUSTRALIA

KENDRICK & KENDRICK [2016] FamCA 1047

FAMILY LAW – CHILDREN – Final Parenting – where there is risk of physical or psychological harm from a step-child of a party  – Where orders are made restraining a party from bringing the child into contact with another child – Where future contact with another child potentially in the best interests of the child – Where final orders are made allowing for future contact by consent contingent on therapy and other measures

Family Law Act 1975 (Cth)

APPLICANT: Ms Kendrick

RESPONDENT: Mr Kendrick

FILE NUMBER: PAC 2733 of 2010

DATE DELIVERED: 7 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 8, 9, 10 and 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Fay Rose Legal

COUNSEL FOR THE RESPONDENT: Mr Greenaway

SOLICITOR FOR THE RESPONDENT: Anderson Boemi Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

IT IS ORDERED THAT

1. All prior parenting orders in relation to C, born … 2007 (the child), are discharged.

2. The mother has sole parental responsibility for the child.

3. The child will live with the mother.

4. Subject to Order 18 the father is restrained by injunction from causing, allowing or permitting the child from coming into contact with E, born … 2004 (E).

5. The father may spend time with the child as follows:

   a.Each alternate Saturday from 9am to 5pm, such time to commence each term on the first Saturday after the commencement of the school term.

   b.Provided the father advises the mother by e-mail by 7pm on the Friday immediately preceding his time with the child that he is able to spend the time with the child, then the father shall also spend time with the child each alternate Sunday from 9am until 5pm, such Sundays to occur on the same weekend as the Saturday that he spends time with the child.

   c.On Christmas Day each year, from 1pm until 8pm with the father’s time with the child otherwise suspended on Christmas Day.

   d.On Boxing Day each year, from 9am until 5pm.

   e.On the child’s birthday from 5pm until 7pm when that birthday falls on a school day and from 9am until 12noon where the child’s birthday falls on a non-school day on which the child does not otherwise spend time with the father.

   f.On Father’s Day from 9am until 5pm.

   g.In the event that the father advises the mother by e-mail not later than 4pm on the Friday four weeks before the last day of school term that he is able to, then:

   i.For each of the end of term school holidays (other than the Christmas holiday break) for a period nominated by the father of up to four consecutive days (three consecutive nights) commencing at 9am on the first day of the nominated period and finishing at 5pm on the last day of the nominated period;

   ii.For the Christmas school holidays for two periods nominated by the father of up to four consecutive days (three consecutive nights) commencing at 9am on the first day of the nominated period and finishing at 5pm on the last day of the nominated period to occur in the second half of the Christmas school holidays for a period.

   h.At all other times as may be agreed between the parents in writing, including writing communicated electronically.

6. Changeover for the purpose of these orders shall occur at the Suburb D McDonald’s at the corner of H Street and I Street Suburb D, unless otherwise agreed by the parties. 

7. The father may communicate with the child by telephone between 6pm and 7pm each Tuesday and Thursday when the child is with the mother. 

8. The child may communicate with the father by telephone at any time that she chooses and the mother shall facilitate the child’s use of the telephone to make and receive calls from the father. 

9. When the child is with the father she may communicate with the mother by telephone at any time that she chooses, and the father shall facilitate the child’s use of the telephone to make calls to the mother. 

10. Each party shall keep the other notified of their current residential address, landline, mobile telephone number and e-mail addresses. 

11. The mother shall forthwith authorise and continue to provide authorisations to any school or medical professional that the child attends in order to provide that the school or medical professional may communicate with the father and these orders act as sufficient authority to enable the father to communicate with any school or medical professional that the child attends about the child. 

12. The mother shall notify the father in advance, in writing, of specialist medical appointments that the child is scheduled to attend, including the identity and contact details of the medical professional.

13. In the event that the child is suffering a medical condition or is requiring medical attention while in the care of either parent:

    a.The other parent is to be notified as soon as practicable;

    b.The other parent is to be advised of full details of the medical practitioner or medical facility upon which the child attends as soon as practicable; and

    c.The medical practitioner or medical facility is to be advised that both parents have access to the child’s medical records and the information contained within them on request.

14. The mother shall facilitate the child’s attendance upon Ms J as may be recommended by Ms J for a period of twelve months from the making of these orders.

15. For a period of twelve months from the date of these orders the mother shall engage with a therapist as may be recommended to her by Ms J and shall attend upon such therapist in accordance with the recommendations of that therapist.  To this end the mother is to initiate contact with Ms J within a period of seven days of the making of these orders.

16. For a period of twelve months from the making of these orders the father shall attend upon an educator or counsellor for the purpose of better understanding the child’s needs as may be recommended by Ms J and shall attend upon that person in accordance with that person’s directions.  The father shall initiate contact with Ms J for the purpose of referral to such a person within a period of seven days of the making of these orders.

IT IS NOTED THAT

1. At the final hearing of this matter each of the parents indicated that they considered that it is in the child’s best interests to be reintroduced to E.  The above orders in relation to attendance upon counsellors/educators are to facilitate the conditions to allow for such reintroduction to take place.

IT IS FURTHER ORDERED THAT

1. In the event that the parents agree in writing that the child should be reintroduced to and spend time with E then, to the extent of the agreement and subject to any conditions expressed in writing as part of the agreement, the father may cause, allow and permit the child to come into contact with E.

2. All subpoena material produced which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

3. Any subpoena material produced which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

4. The matter be removed from the Pending Cases Inventory.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC 2733  of 2010

Ms Kendrick

Applicant

And

Mr Kendrick

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to orders regarding the child C (born in 2007), who is the daughter of Mr and Ms Kendrick.  Since separation in 2009 the child has lived primarily with the mother and spent time with the father.  Final orders were made in 2010 providing for this.  Each of the parents has re-partnered and, significantly, the child now has a step brother, E (born in 2004) who is the son of the father’s wife, Ms F.  Each of the mother and father have a further child in their new relationships.

2. It is accepted by both parties that around late 2014 E touched the child’s bottom with his penis.  E and the child’s accounts conflict as to whether this involved penetration of the child’s bottom.  There are further issues as to whether E has otherwise behaved sexually toward the child.

3. The matter was investigated by NSW police.  E was below the age of criminal responsibility and no criminal proceedings ensued.  The child and E are currently not brought into contact with each other.

4. There was a significant breakdown of the parenting relationship prior to the incident coming to the attention of the mother.  This relationship has worsened.  The mother does not trust the father to protect the child from E and believes that he would cover up any further acts that might be done by E. 

5. The mother seeks orders that will provide for the father to have time with the child on the condition that the child is not brought into contact with E.  The father seeks orders that allow contact between E and the child, but on the basis that there will be a safety plan in his home to manage their interactions.

Issues

1. At the commencement of the proceedings each of the parties identified the issues they said arose in the case.  This was supplemented by a list of issues provided at the end of the case by the mother (Exhibit M10) and also by the father (Exhibit F3).  There was significant overlap between their description of the issues.  They can be distilled to the following:

   a.The nature and extent of risk posed by E to the child if he has contact with the child, along with the degree to which that may be ameliorated by supervision or other arrangements;

   b.The degree to which the father and Ms F would be protective of the child;

   c.The effect on the child of reintroduction to E even if he poses no ongoing risk;

   d.The benefit to the child of spending time with E, the father and the father’s family;

   e.The effect on the child of not spending time with E;

   f.The impact on the mother of the child having contact with E;

   g.The capacity of the parties to communicate;

   h.Any requirement in respect of further counselling for the parents.

Relevant history

1. The parties separated in 2009, each re-partnering in 2010.  The mother’s husband is Mr K.  They have another child together, L (born in 2012).  The father’s wife is Ms F.  Ms F’s son, E, lives with them.  They have another child together, G (born in 2014).

2. In 2010 the parties entered into consent orders that provided for equal shared parental responsibility, for the child to live primarily with her mother and, in general terms, spend alternate weekends and block holiday time with her father.

3. In December 2010 and again in January 2011 the child told the mother that E was asking the child to lift her skirt and show her undies.  The mother raised this with the father who said that he would sort it out.[1]

   [1] Mother’s affidavit of 14.7.16 [10].

4. In August 2013 the mother raised with the father concerns regarding the child’s report to her that E was trying to kiss her.[2]  Further emails were sent by the mother regarding inappropriate behaviour by E to the child on 25 November 2013 and 11 December 2013.  The father responded to neither.[3]

   [2] Mother’s affidavit of 14.7.16 [12].

   [3] Mother’s affidavit of 14.7.16 [13].

5. The parties struggled to communicate with each other, arguing over matters such as school sport and the interpretation of orders.  The issues that provoked disagreement did not appear, at face value, to be fundamentally difficult.  The parties, however, struggled to be able to resolve them.  This was indicative of their deficiencies in being able to communicate with each other.

6. An indicator of the strained relationship was the attendance of the police in relation to the interaction between the parties.  In 2013 and 2014 the mother called the police regarding the father’s attendance at her home, following disagreement about whether it was time for the child to be with him.  The mother asserted that the father would sound the horn and, when the mother or her husband sought to interact with him, would close the driver’s window to his car and hold his telephone up to indicate that he was recording the interaction.  The mother asserted that she called the police because she was intimidated.  There was no account of threats or verbal abuse or an indication of violence on the part of the father.  The incidents reflect a profound inability to interact.

7. It is unclear when the parties last had civil communication between them, it being variously estimated at 2012 ranging through to the end of 2013, when the parties argued about school holiday arrangements.  For reasons that are not apparent, the disagreement between the parents about the school holiday arrangements marked the point from which they were no longer able to communicate in a face to face manner.

8. On 12 March 2015 the child told her mother that E had behaved in a sexual manner toward her.  The description included E’s penis touching the child’s vagina when they “play cubbies”.  The child described a particular incident while she was on holidays with her father, staying in a caravan, involving E putting his penis into her “butt”, making her feel like it was “splitting”.  The child told her mother that her father and Ms F told the child to forget about it and further, that Ms F had told the child that she was a “dobber”.[4]

   [4] Mother’s affidavit of 14.7.16 [15].

9. As indicated previously, it was common between the parties at the final hearing that a sexual incident involving E and the child occurred at the caravan, although there was some dispute as to what had occurred and when it happened.  While there was dispute as to the nature and extent of the sexual contact, there was no dispute that sexual contact had occurred.

10. The mother reported the matter to Family and Community Services (FaCS).  The police investigated and determined that charges would not be laid against E, on the basis that he was below the age of criminal responsibility when the incident occurred. ^[5]  The mother stopped the child spending time with the father, who continued to attend at the mother’s home when he was scheduled to spend time with the child.  The child was not made available.

    [5] s 5 Children (Criminal Proceedings) Act 1987 (NSW) provides that:   ‘It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.’

11. On 15 June 2015 the consent orders were suspended, and orders made for the father to spend each Saturday with the child, on the basis that E would not be present.  On either party’s account this time has not been smooth running.  Disputes have arisen as to what activities the child will engage in while with her father, for example, whether she will attend parties.[6]

    [6] Father’s affidavit of 14.7.16 [19].

12. In preparation for the trial, the child and the parties attended upon the single expert, Ms B, commencing in August 2015.  Ms B provided her report in September 2015. 

13. In October 2015, following a recommendation from the single expert, the child started to attend at N Group, a counselling service directed to children and young people who have experienced violence and abuse.  There the child attended upon Ms J, who gave a report and evidence in the proceedings.

14. Again, following a recommendation from the single expert, E commenced to see a psychologist, Dr O, who also prepared a report and gave evidence in the proceedings.

Sexual contact between E and the child

1. The allegations in respect of E can be divided into two categories.  The first category relates to various un-particularised acts on the part of E towards the child that were not clarified by the evidence.  The evidence regarding the first category was vague and uncertain.  The second category is the occasion on holiday that involved E causing contact between his penis and the child’s bottom. 

2. It is the second of these two categories that was concentrated on in the hearing and that is pivotal to this case.  It is important both as to what occurred and as to how it has been dealt with, particularly by the father and Ms F.

3. At the commencement of the hearing, counsel for the father indicated that there was no dispute that the child had made the statements about the various incidents that are attributed to her.  It was accepted that something of a sexual nature had occurred to the child.

4. Critical to understanding the issues in this case is an understanding of what has been said variously by the child, E, the father, Ms F and the mother in relation to this incident, how each has responded to the statements, and then how the parents have interacted.

5. The account given by the child of the primary incident is contained at paragraph 15(a) through (g) of the mother’s affidavit and the balance of the unparticularised incidents are at paragraph 15(h) through (t) of the mother’s affidavit.  A further account about the primary incident is contained in Ex ICL 2 tag M11, being notes of the JIRT interview with the child. 

6. The father’s account appears at [9] – [16] of his affidavit sworn 14 July 2016.  He identifies the incident as occurring in the September-October school holidays in 2014.  The extent of his description was that Ms F reported to him that the child had told her that E was trying to kiss her on the mouth.  Steps were taken to put in place rules to ensure no repetition, and to ensure that no opportunity arose for repetition.

7. However, the father’s oral evidence revealed significant further matters that were not disclosed in his affidavit material.  The father explained that in March 2015, shortly after the mother stopped the child spending time with the father, E told him that he had touched his penis on the child’s bottom.  This was in response to a direct question from the father to E as to whether E had put his penis in the child’s bottom.  The question from the father came as a result of correspondence that he had received from the mother’s solicitors. 

8. The father responded to the solicitor for the mother, on 19 March 2015.[7]  The solicitor had outlined that the child had raised, with the mother, issues that “ranged from [E] attempting to kiss her and in fact kissing her to a sexual assault upon the child.”  The response from the father, sent 3 days after the email from the solicitor, asserted “false accusations, miscellaneous bull*#, patent lies and threats.”  This response contrasts sharply with what the father was told by E.

   [7] Mother’s affidavit of 14.7.16 Annexure E, p45ff.

9. At around this time the father was contacted by FaCS, who were considering taking action to remove the father’s other daughter, G, from his care.  They told him that in interview the child had said that E had pushed her down and put his penis in her bottom.  He told them that he was aware of the incident and had discussed it with E, that he had “a gut full of this shit” and that it was “all made up.”  The father asserts that this conversation took place before his conversation with E.  This assertion sits ill with the father’s assertion to FaCS that he had spoken to E about it. 

1. The father continued to attempt to collect the child in accordance with the orders after E had given the account of his penis touching the child’s bottom.

2. E’s acceptance that he touched the child on her bottom with his penis was not something that the father told the mother.  The first time that she could have been made aware of it was when the father was giving his evidence.  The father explained that he had not previously advised of this conversation as he had been advised (by a solicitor) not to speak to anyone about the matter.

3. The father accepts that he was not frank regarding E’s report to him in his dealings with the single expert.  At page 10 of her report he is recorded as having expressed his difficulty in accepting and understanding the child’s allegations, yet by the time of the report E had admitted to him that his penis had touched the child’s bottom.

4. The father has chosen (under difficult circumstances that bear heavily upon the welfare of E), not to disclose to the mother information important to the welfare of the child and to deny the child’s account under circumstances where much of the substance has been admitted to him by E.  This is reflective of a strong motivation on the part of the father to protect E, to the extent that he has refrained from disclosing matters to the mother and to the single expert that are important to the child’s well-being.

5. This raises strong doubts about how the father will respond in the event that future sexual conduct by E upon the child comes to his attention.  It raises a significant question regarding the priority that he gives the child’s wellbeing, or his ability to assess what is in the child’s best interest.

6. Ms F’s account appears at [12] – [22] of her affidavit sworn 15 July 2016.  Her description of what she was told by the child was that E was trying to lie on top of her and pull her pants down.  Ms F there says that she told the father what she had been told by the child.  The father’s account of what he was told is materially inconsistent with Ms F’s account.  According to Ms F, E was spoken to, rules were put in place and no opportunity was given for repetition.

7. Ms F accepted that she knew of the conversation between the father and E where E said that he put his penis onto the child’s bottom.  She further accepted that her assertions in Ex M7 (paragraphs 20 and 21 of her affidavit sworn 12 June 2015) where she denied being told of the removal of the child’s pants, or of genital contact in the caravan incident, were not true and agreed that they misled the Court.

8. Ms F was cross examined regarding assertions that she made to the police in the investigation of E, regarding the child.  She had told the police that the child was not entirely innocent in the interactions with E (Ex M8 at tag MD).  She had asserted, regarding the child’s honesty, that the child had asserted that E had licked her vagina and that Ms F found out that was not true (Ex M8 at tag ME).  Regarding this assertion, Ms F stated that she had said a lot of things on the spur of the moment, not speaking the truth, being frustrated, annoyed and scared, and that she may have made up the issue about E licking the child’s vagina.

9. This demonstrates a strong motivation for Ms F to protect E, and to engage in falsehood to do so.  The misleading of the court and the false statement to the police raises strong doubt about how Ms F will respond if confronted by a sexual allegation by the child in relation to E, and the degree to which her desire to protect E will compromise the manner in which she either deals with the child, or reports what has happened.

10. This doubt is strengthened by Ms F’s further evidence when asked whether she, if she thought the child was lying (about E and sexual contact), would keep it secret or not.  She initially responded that she hoped the relationship (with the mother) would be good enough to allow it to be discussed.  This appears highly unlikely.  Ms F indicated that she was not sure whether she would be reluctant to raise the matter with the mother.

11. This history of the matter means that I can be satisfied of the following:

    a)E had sexual contact with the child, at least involving the placing of his penis on her bottom;

    b)Neither the father, nor Ms F, were candid to the mother, or to the court prior to the trial, as to what they knew of the matter from E;

    c)The father made representations to the mother inconsistent with what E had told him, and took no appropriate step to correct those representation s until the trial of the matter;

    d)The father and Ms F are strongly protective of E, to an extent that compromises their willingness to report conduct on his part that bears heavily on the child’s well-being;

    e)The priority that the father gives to the child’s wellbeing, or his ability to assess what is in her interests is limited.

12. When considered in the light of the other history of the interaction between the parties, then in addition to a lack of capacity to communicate, there is strong reason for the mother to have a profound mistrust of the father and Ms F and of their capacity or willingness to protect the child or to promote her best interests.  There is little basis upon which it could be thought that they will be able to communicate or collaborate in relation to the care of the child.

Risk, detriment and advantage in spending time with E

1. In the context of E being an essential part of the father’s family, of E being the child’s step brother and of E having made sexual contact with the child, there are a number of perspectives on the child spending time with E.  The indicators of whether time with E will be in the child’s best interest do not all point in the same direction and may be summarised as follows:

   a)Most prominent at the trial was the issue of what further risk of sexual contact E might pose.

   b)Conversely, there is the prospect that the reintroduction may give healing to the child.  It may nullify the risk that the child will identify as a victim.  If she identifies as a victim it may adversely affect her development.  Sibling relationships are among the most important relationships for a child, given their enduring nature.  The loss of such a relationship with E means the loss of the benefits of such a relationship.  If the child does not see E, she may carry the blame within herself for the impact that her complaint has had within the family. 

   c)Even if the child is otherwise able to cope with contact with E, there is a high likelihood that the mother will be anxious.  The mother’s anxiety is likely to impact the child, potentially leaving the child carrying responsibility for the anxiety she sees in her mother.

   d)E is an important part of the father’s household.  If the child is not to be brought into contact with E, not only will there be practical difficulties in the child spending time with her father, but it may be anticipated that there will be difficulties in the child interacting with the father’s family as a whole.

   e)Even if E poses no risk of further sexual contact, coming into contact with E again will have an impact upon the child.  The reintroduction may cause a traumatisation of the child that will require sensitive and responsive management.

   f)If there is to be a reintroduction, in the context of these various factors, it is necessary to identify what framework and mechanisms are required to promote the child’s best interests.  It then becomes necessary to consider what mechanisms can be adequately supported by Court orders.

Further risk of sexual contact

1. Dr O, who has directly worked with E since late 2015, meeting with him on more than 10 occasions, agreed with the diagnosis of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD).  This expressed itself, at least in part, as a rigidity of thinking.

2. Although E had reported one occasion of sexual conduct to Dr O, in assessing the risk that E might pose Dr O operated on the basis that E engaged in sexualised behaviour with the child on more than one occasion.  This reflected what E told Ms B. 

3. According to Dr O, E was unable to accept that he may have harmed the child, but understood that he had done the wrong thing.  Dr O’s assessment of E’s particular characteristics mean that the key in relation to risk is E’s determination not to repeat bad behaviour, get into trouble, or upset his parents.  That is, E’s characteristic of “rigidity and determination” are important in understanding future risk. [8]  He noted that E is reportedly generally well behaved.  Impulse control is not the issue for E.  Against this, Dr O noted that: [9]

   In a child who has a history of concerning sexual behaviour, rigidity and insistence raises a question about how much the child can be trusted to do as they are told if they want something else.

   [8] Dr O transcript 50.13.

   [9] Dr O report at page 8.

4. That is, although E’s rigidity is protective, it can tend in two directions in respect of risk.

5. E told Ms B that he was aware that his mother and the father had been crying because they miss the child.  He understood this to be his fault.  Ms B further explained the low risk of reoffending for children who are on the autism spectrum because of their ability to learn social rules.[10]

   [10] Transcript 64.10.

6. Ms B noted that no instrument was available to assess a child E’s age.  The best approach, she indicated, was to base judgment against known risk factors, which she took from The Estimate of Risk of Adolescent Sexual Offence Recidivism.[11]  Administering this test, along with an experimental test, the Desistence for Adolescents who Sexually Harm,[12] led to scores suggestive of low risk on the part of E.  Given that these tests were not adapted to a child E’s age, it is unclear what reliability attaches to these assessments.

   [11] ERASOR version 2.0 Worling and Curwen 2001.

   [12] DASH-13 Worling 2013.

7. There are therefore limitations in the assessment of the risk that E might pose, both in the administration of tests (which are not directly adapted to a child E’s age), and in the reasoning that E’s rigidity is protective (noting that in itself this can constitute a risk factor).  Noting these limitations, the reasoning of Ms B and Dr O tends toward a qualified conclusion that E presents a low risk of further sexual contact with the child.

8. The qualified nature of this conclusion can be seen in the further recommendation by Dr O that it is “of utmost importance that contact be monitored at all times.”[13]  That is, E’s rigidity should not be considered the single protection.[14]  Similarly, Ms B noted the importance of a safety plan and the involvement of the father and Ms F in establishing safety for the child.

   [13] Dr O transcript 50.31.

   [14] Dr O transcript 50.29.

9. On the basis of the evidence of the Single Expert and Dr O, I am satisfied that the risk of further sexual contact by E is low, but requires protective measures other than a mere reliance upon E.  I accept Dr O’s view that it is necessary that the contact between the child and E, if it is to occur, be monitored at all times. 

Benefits of reintroduction to E

1. Ms B explained that sibling relationships are usually the most enduring relationships of a person’s life.  According to her, this means, if possible, that there should be the resumption of the relationship.  Her view is that, without that:

   [The child] would be psychologically and emotionally harmed through separation from either of her parents, half-siblings, step siblings and extended family with whom she has positive relationships[15]

   [15] Ms B report page 17.

2. Ms B thought that the “major advantage is the opportunity to – for [the child] and [E] to grow through that behaviour, for the opportunity for [E] to take responsibility…(t)hat is a huge part of the healing process for [the child] who has been abused.  It also goes very much to the re-establish (sic) of the relationship of- and the trust and the friendship and all of the good things that were there before.”[16]

   [16] Ms B transcript 80.17.

3. An important factor supporting reintroduction was that:

   Having someone apologise for what they did, acknowledging that they did the wrong thing and that they harmed you, is a very big part of healing and not feeling that somehow you are damaged, somehow that you are the victim and this is part of the label of you now[17]

   [17] Ms B transcript 63.35.

4. It is important to note here that while, according to Dr O, E accepts that he has done the wrong thing, he does not accept that he has harmed the child. This potentially limits the benefits spoken of by Ms B.

5. A failure to re-establish the relationship with E could mean that “[The child] continues to be a victim in her family, right through her adolescence which is a very vulnerable time to have a label like ‘victim’ associated with you.”[18]  It further leaves the child open to blame being carried by her for the changes wrought in the family.[19]

   [18] Ms B transcript 80.31.

   [19] Ms B transcript 80.38.

6. According to Ms B, whether or not the child spends time with E, she risks taking on the blame for the changes that have occurred in the family since she reported the sexual contact from E.  If she remains not seeing E, she risks feeling responsibility for the impact on the father’s side of the family.  If she commences seeing E, she risks feeling the responsibility for the impact upon her mother.  In either situation there is a risk that the child will self blame.[20]

   [20] Transcript 63.30.

7. I am satisfied that an appropriate reintroduction to E carries the possibility of therapeutic and other benefits for the child in her development.  The possibility of healing, and of not carrying the label of ‘victim’ would, if realised, be of strong benefit to the child.  The restoration of relationship, rather than the continued loss of relationship would benefit the child.  Such results, however, are not guaranteed by a reintroduction.

The mother’s anxiety

1. A further layer of impact upon the child flows from the anxiety likely to be experienced by the mother at the prospect of the child coming into contact with E.  According to Ms B, this anxiety “would have a very big impact on ([the child’s]) anxiety”.[21]  A parent’s not coping is “quite detrimental to children’s development, both socially, emotionally and cognitively.  The risk is that the child will take responsibility for her mother’s anxiety, attempting to fix it.  This phenomenon ‘is quite harmful for children.’”[22]

   [21] Transcript 66.11.

   [22] Transcript 74.6.

2. Ms B expressed the opinion, from her interviews with the child, that the mother speaks to the child of her own fears for the child’s safety and that the mother would like contact between the child and the father’s family to be decreased.  She quotes[23] the child as saying the following:

   f)        “Mum and me think it would be better to do every second Saturday”;

   g)        “Mummy says I’m more relaxed at home”;

   h)        Mummy is “scared about [E] being at dads”;

   i)Mummy said she is “really scared that if [E] is at the house and he comes out and sees you it’s really scary”.

   [23] Page 8 – report.

3. The mother denied that these discussions occurred.  She accepted that she had cried at the time that the child had disclosed the primary incident to her (which is a reasonable and natural reaction).  She denied that she had ever said to or in front of the child that she wanted the time to be reduced.  The mother believes that wanting a reduction in time was the child’s reaction to frustrations about not being able to undertake activities at the father’s household.  The mother said she sympathised with the child’s frustration. 

4. The mother’s response to the “more relaxed at home” quote was that it was not her that had said something along these lines but that it was the child who had asserted that “I want to relax” in relation to a complaint about her father.  The mother had again sympathised by saying “I know it’s hard sweetie”. 

5. In relation to the statement about it being “scary” in respect of E, the mother indicated that there had been no such conversation.  The child had commented to her that E had been at the father’s house (in breach of orders).  The mother had said “Oh geez that’s a bit awkward” and had cringed.  That response, and the child’s concerns about having to tell people that her father had done the wrong thing, was suggested by the mother to lead to the child’s comments about being “scary”.

6. I find that whether the conversations between the child and the mother occurred as reported by the child, or as reported by the mother, the child has expressed an understanding that her mother is concerned.

7. The mother has an abiding mistrust of Ms F and the father.  A current example is seen in the mother’s evidence regarding whether she is prepared to enter into discussions with the father and Ms F about E.  She indicated that she would only be prepared to do so in what she described as an extremely prolonged and therapeutic framework, and if convinced that the father and his partner were not lying or faking.  She believes that the father and Ms F would cover up anything that E might do as they would be worried that E would be held responsible.

8. The mistrust is emphasised in the mother’s assessment of the interaction between the father and the child while with Ms B.  The mother asserted that the interaction as described by the single expert was different to what the usual interaction might be between the father and the child.  In particular, she asserted that the father cuddling the child was different to how he would usually behave, as would be the father saying to the child that he loved her, as would the father’s engagement with the child in board games.  Given there has been virtually no communication between the father and the mother for some years, the assertions that the father, in behaving in such a manner, was behaving differently to the way that he would normally behave appear to be the product of a severe mistrust on the part of the mother in relation to the father. 

9. Ms B thought that the relationship between the parents is “severely damaged” and “there is no simple way for them to rebuild any trust.”[24]  Ms B also thought that the nature of the relationship between the adults is such that it would not be improved by use of counselling together[25].

   [24] Transcript 71.45.

   [25] Transcript 62.6.

10. The mother believes that E will do something in the future which will be of a more severe degree given that he is now older than at the time of the caravan incident.  Her belief is that, in such a circumstance, it will be E who will be protected by the father and Ms F rather than the child.

11. The product of this belief and mistrust would be that orders that allow the child to come into contact with E would heavily impact on the mother.  Given the history of how the father and Ms F dealt with E’s admission to sexual contact, there is little to effectively reassure the mother that the child will be all right when with the father if she is brought in to contact with E.  The mother regards herself as being unable to cope with such a prospect.  It appears inevitable that the mother will experience anxiety if the child spends time with E.

12. In order to assist the child to deal with her own anxiety in spending time with E, Ms B stated that “she needs to be reassured that she is safe.”[26]  Anxiety for a child such as the child “can be quite detrimental…(i)t can certainly have physical symptoms, it can have emotional, psychological symptoms…there has already been a manifestation of tics at various times which may be related to anxiety.”[27]  It is certainly not clear that the mother will be in a position to alleviate the child’s anxiety.  It would be difficult for her to assure the child that she is safe when she does not believe it to be the case.[28]  Ms B thought that counselling, conducted by someone who “understands the situation of having your child sexually assaulted and what that may do to her emotional state and her mental health and her thought processes” would be of assistance to the mother .[29]

    [26] Ms B Transcript 75.12.

    [27] Ms B Transcript 75.20.

    [28] Transcript 82.2.

    [29] Transcript 71.41.

1. The child faces the prospect of not only dealing with her own anxiety, but also that of her mother.  This is potentially harmful to the child.

Practical difficulties if no contact with E

1. The father has struggled with the practicalities of spending time with the child when E cannot be present.  He was unsure who would be available to assist if the care arrangement meant that E could not be present.  Nor was he clear about what could be done if he could find no-one to care for E at a time that he was due to be with the child.

2. If E could not be present he accepted that a period during the day in the order of 9am to 5pm would be an appropriate time for him to spend with the child, although his preference would be for more than that.

3. It can readily be accepted that an arrangement without E present would be both difficult to manage, and would result in the child having a restricted experience of the father and his family, both as to how much time and the breadth of experiences within the family.

Potential for re-traumatisation

1. Ms B assessed that the child thinks of E as her step brother and she wants to see him.[30]  The child misses E, wants to see him when his behaviour changes and does not appear traumatised about either what has happened nor about what she wishes to happen in the future.[31]

   [30] Ms B report page 19.

   [31] Ms B report page 18.

2. However, according to Ms B, one of the risks faced by the child is that of re-traumatisation “in a sense of being in the environment where abuse happened.”[32]  While the trauma might not be “massive and catastrophic”[33] and not cause “permanent damage” it is a therapeutic issue that requires counselling. [34]

   [32] Ms B transcript 77.13.

   [33] Ms B transcript 77.32.

   [34] Ms B transcript 77.35.

3. Ms B’s view was that absent further sexual dealing the most significant of the detriments faced by the child of spending time with E are of not being believed, re-traumatisation and the possible re-emergence of anxiety.[35]

   [35] Ms B transcript 78.28.

4. Dr O thought that at this stage it is not possible to predict how the child might deal with reintroduction and what adjustments might need to be made to progress it, or even if progression can take place. 

5. Ms J saw the child and the mother on eight occasions between October 2015 and July 2016.  Ms J thought that the child was doing well enough to end the counselling relationship.  However, seeing E again was not a matter that had been covered in the counselling.  In Ms J’s view, in the event that the child was to see E, there was an issue as to the type and severity of concerns and behaviours that may arise, which would be connected to how the child felt about seeing E again.  In such a case, she thought it would be imperative that the counselling with Ms J continue, and that it increase in frequency to weekly sessions.

What is necessary for reintroduction

1. What would be necessary for a reintroduction of E to the child falls into two categories.  The first relates to what degree of supervision, or what form of safety plan is required for the child to be in contact with E.  The second relates to what needs to be in place to control any reintroduction to ensure that it is promoting the child’s best interest and, if necessary to bring it to an end if it is not.

Safety plan and potential reintroduction

1. The mother’s position was ultimately set out in a revised minute of order that became Exhibit M9.  This contained a restraint from bringing E into contact with the child, but also contained provisions to progress the reintroduction between E and the child.  There was no provision in the orders to allow the reintroduction to take place, however, the mother conceded that it was appropriate that there be a therapeutic reintroduction, contingent upon therapy taking place.

2. The mother sought that final orders be made, rather than an adjournment of the proceedings.  Underlying this was the concession made by the mother that if there was later evidence available from a therapist (noting that on her orders as sought, therapy is mandated) that indicated that reintroduction ought to take place, then the change in circumstance could found a further application in any event.

3. The father’s position was ultimately set out in his amended response that became Exhibit F2.  In essence this provided for a 3 month period where the child would not be brought into contact with E.  Following this, and subject to a safety plan that would become a part of the orders he sought, there would be an increasing time for the child to spend with the father, under circumstances where she would also come into contact with E.

4. There is no scope in the father’s terms to accommodate difficulties faced by the child in the reintroduction process.  The orders were not contingent on views that might be expressed by their parties such as counsellors and so lacked the uncertainty of those proposed by the mother and the ICL.  The father sought finalisation of the proceedings.

5. The ICL’s position was set out in a minute that became Exhibit ICL3.  Although unclear, the minute provided for a restraint upon E being brought in to contact with the child.  Should there be agreement between the parties, then the child may be brought into contact with E subject to a safety plan.  Orders were also to be made to facilitate therapy for the child, E and the mother.  Despite the uncertainty in the effect of these terms, the ICL sought that the proceedings be finalised, rather than further adjourned.

6. The father sets out the basic framework of the safety plan in his affidavit.[36]  The safety plan was developed with the assistance of Dr O, whose view, as expressed earlier, was that interactions between E and the child need to be monitored at all times. 

   [36] Mr Kendrick 4 July 2016 [23].

7. The plan means that either the father or Ms F would need to be within ear shot, and have visual contact with E and the child whenever they were together.  There would be other house rules relating to what E and the child could do (eg restricting access to their bedrooms and governing the manner of the use of the toilet).

8. The father accepted that this supervision could not operate 24 hours per day.  For example, E has trouble sleeping and could approach the child during the night while the household sleeps.  The father accepted that it was possible that E could approach the child and want to perform sex acts.  However, the plan complied with the degree of supervision that Dr O believed necessary when considered in the light of the other protective factor that he identified as coming from E’s personal characteristics.

9. As to the sufficiency of the safety plan, Ms J’s view was that such a plan needed to be developed collaboratively, between the various supporting practitioners.  This has not occurred.  While Ms J could make some suggestions regarding the plan, she would need to be able to discuss the plan with the child to be able to properly provide input into the content of the plan.  Ms J thought that the plan would require, initially, a complete prohibition on the children going into each other’s bedrooms.  Further, it would require provision for the child to be able to speak to the mother, the father or Ms F should she be uncomfortable.  It would also require the monitoring of E in relation to his general behaviour toward the child.

10. Ms J further thought that a safety plan requires open communication between the parents.

11. Ms B considered that a precursor to the operation of a safety plan to allow interaction between E and the child is the ability of the parents to work together.[37]  Although this was not said to require “absolute trust,”[38]  where the adults are not able to “talk to each other in a way that is helpful” it becomes “very, very difficult to provide an arrangement where the children are safe and feel safe and feel they can talk to everybody”.[39]

    [37] Transcript 59.46.

    [38] Transcript 71.38.

    [39] Transcript 61.25.

12. Open communication is not available in this case, although this does not appear to diminish the capacity of the plan to prevent sexual contact occurring.

13. Critically, Ms B’s view was that a further necessary feature of a safety plan is that, in the event that the child communicates a sexual incident involving E, that she is thanked, told that she is believed and that the matter is taken up with her counsellor, with the consequence that the matter may then come to the attention of FaCS and the police.[40]

    [40] Transcript 61.5.

14. Given the previous reluctance on the part of the father and Ms F to report matters that might be detrimental to E, I cannot be confident that the child would be dealt with in this manner.  The safety plan is deficient in the event that an incident does occur.

15. Noting a strong motive on the part of the father and Ms F to be protective of E as well as to be protective of the child, there is good reason to conclude that it would be reasonably implemented.  It ought to be acknowledged that it would be a difficult regime to implement over the long term.

16. The assessment of the plan at this point relates to its ability to answer the risk that might be posed of further sexual contact.  It is a protection that is to be added to the protection derived from E’s determination not to do the wrong thing and get into trouble.  The plan, although weakened overnight, and deficient in the event an incident does occur, provides an added layer of protection against an incident of sexual contact occurring, rendering it unlikely that there would be a further incident.

Reintroduction

1. In developing the safety plan, Dr O qualified his view on the basis that he has had no contact with and made no assessment of the child.  That is, while he considered how the reintroduction process and use of the safety plan might impact upon the child, this was without an assessment of the child.

2. He was, however, of the view that the process should not commence until the child is ready for it to commence, so that the contact might be part of a healing process.[41]  The risk in rushing it is that it could compromise the child’s mental health.

   [41] Dr O transcript 51.30.

3. Dr O regarded the process of reintroduction as a dynamic process.  A rigid structure for reintroduction could not provide for the adaptability required.  He expressed that there is a need to be responsive as to what emerges which means that:

   a need to make a final determination and have it very crystal clear-it makes sense in the legal system and is helpful to people, generally, of course, to know what the rules are-but in terms of this process, it’s very problematic.[42]

   [42] Dr O transcript 51.20.

4. He accepted that an introduction would require close monitoring by the mother, the child’s school and her clinician.  If it turned out that reintroduction was not something that she could get through without harm, then it would be necessary to take instructions from the treating clinician as to what the next step should be.

5. Similarly, Ms B did not think that the process of reintroduction could be controlled by a court order that specified that it would occur on a particular date.  It should only occur when the child is ready and it is not possible to predict at this stage when that might be.[43]  To limit loss to the child it should occur before she completes her adolescence.  The longer it takes, the more likely it will be cemented in her mind that she has caused the problem.[44]

   [43] Ms B transcript 81.35.

   [44] Ms B transcript 86.3.

6. Her view was that the success of a reintroduction is heavily dependent upon there being mutual support for that course of action.  If there is not it is both difficult to commence and difficult to maintain the process.[45] 

   [45] Transcript 62.30.

7. Given the relative positions of the parties regarding E, it cannot be said that there is mutual support for the reintroduction.

8. Ms B thought that change to allow contact between the child and E would require good will as a starting point, and that it was unable to be predicted whether, or when an improvement in communication between the parents might occur.[46]  Additionally, according to Ms B, an order that provides for the child having time with E is likely to add to the acrimony between the parents.  There can be no realistic optimism that there will either be good will, or an improvement in communication between the parties.

   [46] Transcript 75.

9. Ms J told the Court that as yet she has not discussed with the child the prospect of seeing E.  Although she thought it inevitable that the child would again see E, as E is a part of the father’s family, it was not a matter she wished to raise until there was greater certainty about it.  Ms J thought it inevitable that the prospect would raise the child’s anxiety levels, which would need to be addressed at the time.

10. At present the evidence does not allow a conclusion that the child is ready for reintroduction to E.  She has not been prepared for reintroduction.  While in the preparation of Ms B’s report she expressed a view about the future and E, it has not been the subject of discussion between the child and Ms J.

11. The child’s reaction is critical to whether reintroduction should take place and how any reintroduction should unfold.  Her reaction determines whether it should continue, how it should be done and what sort of support should be given to her to allow it to happen.  As indicated above, it is a dynamic process that is not amenable to a rigid framework.  At each point the framework must be able to be reshaped in order to provide the proper support to the child.  By its nature, this requires ongoing assessment of the child and potential change, or even cessation of arrangements to spend time with E.

60CC factors

1. In assessing the evidence in this case, I am required to consider the matters set out in s 60CC of the Act, which are as follows:

   60CC  How a court determines what is in a child’s best interests

   Primary considerations

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

   Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

2. Of those factors, (3)(c), (ca), (h), and (k) either have no application or are insignificant in the circumstances of this case.

3. Considered in the light of s 60CC, the matters that have significance do not all point in the same direction.  The primary balance in this case relates to the need to protect the child from both a risk of abuse and from adverse consequences that may flow from reintroduction against the benefits she may experience from relationship with E, and the benefits of relationship with her father that she will lose if she is not able to be brought into contact with E (s 60CC(2)(a) and (b)).  Having assessed the evidence above, the s 60CC matters  may be summarised as follows: 

   a)The risk that E, without other safeguards, may engage in sexual conduct is assessed by the experts as low.  The assessment is based upon E’s personal characteristics of rigidity and determination, characteristics acknowledged by Dr O as potentially causing as well as ameliorating risk.  The evidence tends to a conclusion that E is a low risk of further sexual contact.  Absent other protective measures E still poses some risk of harm to the child (60CC(2)(b), (3)(j)).

   b)This renders critical the effectiveness of safeguards in dealing with the risk from E.  If E is to be brought into contact with the child it is necessary that safeguards be in place that will address the risk of sexual contact.  The available safeguards are reliant upon the father and Ms F.  The proposed safety plan requires ongoing diligence, which they are likely to provide.  However, there is some weakness in relation to the safety plan where it relates to overnight time for the child.  Further, the safeguards indicate a reasonable requirement that if there is further sexual contact that a report be made.  Such a report may be harmful for E, placing the father and Ms F in a difficult position of conflict of loyalty.  When previously faced with this difficulty, neither disclosed information important to the child’s wellbeing, indicating a limitation on the capacity of the father and Ms F to protect and to provide emotionally for the child.  This particular requirement of a safety plan cannot be said to be assured.  When taken in combination with E’s characteristics as set out above, even considering the weaknesses in the safety plan, it is unlikely that any further sexual contact would occur between E and the child (s 60CC((2)(b), (3)(f)).

   c)If the child is brought into contact with E, she may be traumatised.  It was common between the experts that any reintroduction must be adapted to the child’s needs, and done in consultation with her counsellor.  The adaptability of the reintroduction is essential.  It was further common between the experts that reintroduction requires cooperation, support and communication between the parents.  This is not available.  The parents do not have the capacity to communicate with each other in accordance with the responsibilities of parenthood, nor to cooperate in a manner that will facilitate the child’s needs being met (s 60CC(2)(b), (3)(f), (g), (i)).

   d)If the child is brought into contact with E it is highly likely to cause the mother to be anxious.  This impacts upon the mother’s ability, as the child’s long term primary carer, to provide emotional care for the child in a manner that does not occur if the child is not brought into contact with E.  In turn, the child would be exposed to that anxiety which may have a harmful effect upon the child (s 60CC(3)(b), (f)).

   e)If the child is not reintroduced to E, she runs the risk of identifying herself as a victim in a manner that may be detrimental to her development.  She is further denied the positive benefit of resolution with E and the benefits of an ongoing brother and sister relationship.  She has expressed some limited views indicating a desire to spend time with E.  Each of the parties accepts that some form of reintroduction to E is in the child’s interest (s 60CC(3)(a), (b), (m)).

   f)Further, if the child is not to be brought into contact with E, her time with and experience of the father’s family, and with the father himself, is limited in a manner that means that she cannot derive full benefit from it (s 60CC(2)(a), (3)(b), (d), (e)).

Parental responsibility

1. The mother and the ICL sought orders providing for the mother to have sole parental responsibility.  The father sought equal shared parental responsibility.

2. In this case, the sexual conduct of E toward the child, where E is a person who lives with a parent of the child, means that the presumption in favour of equal shared parental responsibility provided for by s 61DA of the Act does not apply.  Even if it had applied, equal shared parental responsibility is not in the interest of the child.  The inability of the parents to cooperate or communicate, and in particular the mistrust the mother has of the father, is such as to indicate that the parents could not, in relation to major long-term issues for the child, either engage in consultation with the other, or make a genuine effort to agree, or take a joint decision.  They do not engage in face to face communication.  They were, when communicating, unable to agree regarding relatively simple matters concerning the child’s welfare.  Where the communication turned to a serious matter of welfare, being the sexual abuse of the child, the communication made by the father, both in what he represented and failed to disclose about the matter, was detrimental to the child.

3. On each party’s case the mother is to primarily have the child live with her.  The child’s interests in relation to parental responsibility are best met by the mother having sole parental responsibility.

E

1. While there are likely benefits to the child in a reintroduction to E, even absent risk of further sexual contact from E, the conditions that would enable orders to be made that would require the reintroduction to take place do not exist.  The orders sought by the father, while giving certainty, do not cater for the adaptability and flexibility that is necessary to ensure that a reintroduction benefits the child.  Given that it is not known whether the child is ready for, nor how she will respond to a reintroduction, nor whether the continuation of contact with E will benefit her, an order cannot be made to set in place a reintroduction.

2. The need to protect the child, in particular to foster her emotional well being in relation to E, means that it is necessary to make orders that will result in the child not being brought into contact with E at this stage.  Orders cannot be made that will set a timetable as to when the child may be brought into contact with E.

3. However, each of the parties supported reintroduction, on the basis that it would provide benefits to the child.  Each of the experts saw benefit to the child if a reintroduction was managed in order to cater for how the child dealt with it.  The basic components that would best allow for the child to benefit included:

   a)Further engagement between the child and Ms J;

   b)Engagement between the mother and a counsellor who was familiar with the issues facing a person whose child has been sexually dealt with;

   c)Engagement between the father and Ms F with a person who could provide appropriate education as to the issues facing the child regarding E;

   d)Further engagement between E and Dr O.

4. Orders could be made to facilitate, although not to compel all of these components.  It cannot be predicted what the end point, or result would be of the child, the parents and Ms F and E participating in each of these.

5. The only mechanisms by which the changes wrought by these steps could result in E being brought into contact with the child is an adjournment of the proceedings without finalisation, or for further litigation to be brought following the making of final orders as a result of a sufficient change in circumstances, or the parents reaching agreement that it is time for the child to be reintroduced to E.

6. Section 60CC(3)(l) requires a consideration of whether it would be preferable to make the order that would be least likely to lead to further proceedings.  An order adjourning the final proceedings ensures further litigation, although it potentially limits the scope of such.  Each of the parties resisted such an approach.  Keeping the parties in an ongoing state of litigation carries with it a difficult burden for the parties that is unlikely to improve their interaction.

7. Should the parties come to an agreement, further contested litigation would not be necessary.  While at this stage, given the matters earlier discussed in the context of parental responsibility, it appears unlikely that there could be agreement, one matter does provide limited grounds to consider this as a possibility.  That is, the parents agree that a therapeutic reintroduction is in the child’s best interest. 

8. According to Ms B, the success of reintroduction is heavily reliant upon the support of the parents for it to happen and to continue.  That is, it is a condition precedent to reintroduction working that the parents are able to come to some agreement.

9. A change in circumstances sufficient to allow further litigation appears most likely to occur where the parents have pursued and followed the components necessary for reintroduction as set out above.  These appear also to be the circumstances under which it is most likely that the parents might be able to agree on reintroduction, obviating the need for contested litigation.

10. In this case it is necessary to give greater weight to protecting the child from the consequences of a reintroduction if she is not ready for it and if it is not properly adapted to her needs.  In making the observation that the parties agree that there should be reintroduction, I do not consider that it is likely that the parents will come to an agreement sufficient to cause it to occur.  A failure to come to an agreement regarding reintroduction is likely to have poor consequences for the child. 

11. As reintroduction is supported by each of the parties, and as it is important for the child’s wellbeing, it is appropriate to make orders to support the possibility of it occurring.  Given the subject matter of the counselling for the child, the place of counselling for the mother as it impacts upon the child, and the role of education of the father for his capacity to care for the child, orders may be made pursuant to s 64B(2)(i) dealing with these matters.  It is not appropriate that the orders be open ended.  If the processes are bearing fruit in moving the parties toward a cooperative approach toward a reintroduction to E, then the need for orders to cause the parties to engage in the process becomes less pressing.  If they are not bearing fruit, there is little benefit in continuing them.

12. I do not have the authority, in these proceedings, where E is neither a child the subject of the proceedings, and Ms F is not a party to the proceedings, to make orders compelling them to follow the recommended steps.  Accordingly, whether they follow the components identified above will not be a matter for orders.

Time with the father

1. Protecting the child, in particular in relation to the effects of reintroduction, has practical consequences for the time that the child can spend with her father, to whom she is “securely attached” and with whom she has a “strong and positive relationship”.[47]  Necessarily this deprives the child of some, but not all of the benefits of meaningful relationship with him.  Acknowledging that this is a loss to the child, the previous assessment of the evidence means that the protective considerations have greater weight in determining the child’s best interest.

   [47] Exhibit C1 – report of Ms B at page 15.

2. In his evidence, the father agreed that, if the child could not be brought into contact with E then a daytime period of approximately 9am until 5pm is appropriate, although his preference would be for greater time.  The father and Ms F indicated that there would be significant difficulties in spending time with the child under circumstances where she could not be brought into contact with E, which is a matter to be taken into account in determining how often this might occur.

3. Given the conflict that has occurred previously between the parties as to what activities the child might engage in when with the father, it is important to note that although the mother will have sole parental responsibility, that father still has the capacity to make decisions that are not major long-term decisions about the child while she is in his care, pursuant to s 65DAE.  It will be a matter for him to determine what is in the child’s best interests to participate in while she is spending time with him.  Understandably, he will be practically limited as to what the child might participate in by the constrained nature of the time that he will spend with her.

4. I will make orders that allow some flexibility for the father to have more time with the child if he is able to make appropriate practical arrangements for E.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 December 2016.

Associate: 

Date:  7 December 2016.