KIRBY & HOLMES

[2013] FamCA 752

FAMILY COURT OF AUSTRALIA

KIRBY & HOLMES [2013] FamCA 752

FAMILY LAW – CHILD ABUSE – Allegation mother unacceptable risk to child – standard of satisfaction required under s.140 of the Evidence Act (Cth).

FAMILY LAW – EVIDENCE – Effect of failure of mother to put allegations of sexual misconduct to witnesses during cross-examination.

FAMILY LAW – CHILDREN – Parenting orders – assessment of child’s best interests – whether final order in best interests at this stage – interim orders made.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA, 65DAA, 65DAC

Evidence Act (Cth) s 140

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 Fam LR 592
Re W [2004] FamCA 768
LC v TC (1998) FLC 92-803
N & S & The Separate Representative (1996) FLC 92-655
Harridge & Harridge [2010] FamCA 445

APPLICANT: Mr Kirby

RESPONDENT: Ms Holmes

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 106 of 2012

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 31 July 2013, 1, 2, 5, 6, 7 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: Ms Lehmann

COUNSEL FOR THE RESPONDENT: Ms Neil

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Honey

Ms Lawrence

Susan Gray

IT IS ORDERED UNTIL FURTHER ORDER THAT:  

1. All previous parenting Orders be discharged.

2. The child J Kirby born …  2005 (“the child”) live with the mother.

3. The mother have sole parental responsibility for the child.

4. The child continue his enrolment at S Primary School and attend in accordance with the enrolment agreement.

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

   (a)commencing Saturday 5 October 2013 each Saturday and Sunday from 9:00am to 5:00pm for 3 consecutive weekends;

   (b)commencing Friday 25 October 2013 each alternate weekend from after school on Friday until Sunday at 5:00pm for 3 weekends;

   (c)commencing Friday 22 November 2013 from after school Friday until commencement of school on Monday each alternate weekend.

   (d)during the 2013/14 school holiday period each alternate week commencing Friday 6 December 2013 after school (or 3:00pm on a Friday that is not a school day) until Friday 13 December 2013, at 5:00pm and each alternate week thereafter;

   (e)the father will communicate with the child by telephone or Skype each Tuesday and Thursday between 6:00pm and 7:00pm when the child is not in his care.  The mother is to ensure the child is able to take the call in a quiet and private area.

6. Save for changeovers at the child’s school, all changeovers will take place at Hungry Jacks, …

7. The mother will communicate with the child by telephone or Skype each Tuesday and Thursday between 6:00pm and 7:00pm when the child is not in her care.  The father is to ensure the child is able to take the call in a quiet and private area.

8. The mother is to attend upon and engage in treatment with Mr C in relation to her anxieties / unresolved issues arising from the breakdown of her relationship with the father and to attend upon him for the period as he recommends.  For this purpose, the mother must:

   (a)provide to that Mr C the psychiatric report of Dr Y and each of the Family Reports prepared by Mr P in this matter, as well as a copy of the Orders of this Court together with the Reasons of Judgment;

   (b)provide her written authority to the Independent Children’s Lawyer to contact Mr C discuss the mother’s progress and to provide such information or material thereby obtained to Dr Y and Ms T.

   Any such treatment of the mother shall be reportable to this Court, and provided funding is available to do so, Mr C is to discuss the mother’s progress with the Independent Children’s Lawyer at least every 2 months.

9. After the expiration of six months, the matter shall be relisted for continued hearing after:

   (a)a review of the mother’s attendance upon Mr C as referred to in these Orders, by Dr Y and Ms T;

   (b)a review of the time being spent between the child and father by the Independent Children’s Lawyer, or such other professional as she may deem appropriate to conduct that review;

   (c)an updated Family Report has been prepared by Dr P.

1. The mother shall be restrained from providing details of the past sexual abuse allegations against the father or others as referred to in her affidavit material and in oral evidence during the trial held in the Family Court of Australia in Cairns over 31 July, 1, 2, 5, 6 and 7 August to the child’s school or any other carer of the child or parents of the child’s friends.

2. The mother shall be restrained from taking the child for any medical assessment or examination, counselling or treatment, or interview of whatsoever kind relating to allegations of sexual or physical abuse without first providing written notification to the father and the Independent Children’s Lawyer, stating the basis of her request for such assessment or interview, and obtaining their written agreement.  Each party is granted liberty to apply in this regard, on 24 hours’ notice, in the event of disagreement between the parties.

3. The mother is restrained from discussing with the child any of the past sexual abuse allegations made by her against the father or his family.

4. Each of the mother and the father are restrained from denigrating the other party in the presence or hearing of the child.

5. Each of the parties shall do all acts and things and sign all documents necessary to enable the child to attend upon Ms B after the Independent Children’s Lawyer has explained to her the orders made and provided to her copies of these Orders and the reasons for them. 

6. Ms B is to determine the need or otherwise for the child to continue to attend upon her.

7. The Independent Children’s Lawyer is granted leave to provide a copy of these Orders and Reasons of Judgment to the school attended by the child.

8. The Legal Aid Office Queensland be requested to continue the appointment of the Independent Children’s Lawyer.

9. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 106 of 2012

Applicant      Mr Kirby

And

Respondent   Ms Holmes

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Amended Initiating Application filed 2 November 2012, the father sought final orders that he have sole parental responsibility for the only child of the parties’ relationship, J Kirby born in 2005 (“the child” or “J”) and that the child live with him and spend time with the mother on each alternate weekend during school terms, and one half of school holidays.  By her Amended Response filed 3 December 2012, the mother sought sole parental responsibility for the child, together with orders that he live with her and spend supervised time with the father each alternate Saturday from 10:00am until 4:00pm. 

2. Although this remained the mother’s primary position at the conclusion of the hearing of the trial before me, the father’s position changed substantially.  His final primary position was that there should be a regime of interim orders lasting for twelve months under which he would have sole parental responsibility for the child, who would live with him and spend supervised time with the mother on one occasion per fortnight at the A Contact Centre.  In broad terms, the Independent Children’s Lawyer supported the final primary position of the father.

THE ISSUES

1. At trial, the principal issue upon which the parties joined was whether either of the parents presented an unacceptable risk in relation to the child, such that, either permanently or on an interim basis, any time that the other parent was to spend with him should be supervised.  A further issue was, in the event that neither parent was found to present an unacceptable risk to the child, what regime of orders would be in the child’s best interests.

2. In this respect, the difference between the parties was less marked.  The father sought interim orders for sole parental responsibility, and that the child live with him, with the mother spending initially two periods of supervised time with the child, but thereafter, upon the satisfaction of certain conditions, each party would spend equal time with the child on a week about basis, with the matter coming back to the Court within the vicinity of six months.  The Independent Children’s Lawyer sought interim orders that the mother have sole parental responsibility for the child and that he live with her, with the father spending time with the child each alternate weekend during the school term, and each alternate week during school holidays.  The mother indicated that in the event that it was found that neither parent presented an unacceptable risk to the child, she would be in broad agreement with the alternative orders proposed by the Independent Children’s Lawyer, albeit with some modifications.

3. It can therefore be seen that, in the event that it was found that neither party presented an unacceptable risk, all parties agreed that final orders should not be made, but rather that a period of interim orders was required.  I will explain the reasons for that later in this judgment.

4. In addition to these questions of fact, two legal issues arose.  The first of those was the degree of satisfaction which the Court needed to reach before it could make a finding that the mother presented an unacceptable risk.  The second was the extent to which the mother was obliged to cross-examine the father’s witnesses by reference to allegations which the mother had made against them in her material, and the consequences of her failure to so cross-examine.  It is convenient to deal with those questions of law at the outset.

THE STANDARD OF SATISFACTION REQUIRED

1. In order to properly understand the context in which this issue arises, it is necessary to set out some factual background.

2. In these proceedings, the mother relied upon numerous alleged disclosures made to her by the child to the effect that the father had sexually abused him, together with many alleged instances of sexualised behaviour by the child, to support her case that the father presented an unacceptable risk of harm to the child.  The parties were agreed that, pursuant to s 140 of the Evidence Act, given the gravity of those allegations and the consequences that would flow from a finding to that effect, the Court would need to exercise caution and carefully examine the whole of the evidence before it could find that the allegation had been proved on the balance of probabilities.  Such an approach plainly is consistent with the authorities. 

3. On the other hand the case of the father was to the effect that the child was at risk of emotional or psychological harm comprising, at least, the destruction of his relationship with his father, arising out of the mother’s intractable belief that the father had sexually abused him.  In her submissions, Ms Wilson, who appeared as Counsel for the father, asserted that the so-called “Briginshaw” standard was not invoked by such an allegation, which only needed to be approached on the same basis of any other controversial fact in dispute between the parties.

4. Section 140 provides as follows:

   140     (1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

5. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

6. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent is not, of itself and without more, necessarily fraudulent or criminal.  Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases.   It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.  In my view, the allegation made by the father is of some gravity.

7. Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave.  As is demonstrated by this case itself, based upon such a fact being established, a father could seek to use it to found an argument that the mother’s time with the child should either be supervised for some period of time, or even permanently.  Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.

8. Therefore consistent with s 140(2), in taking into account the gravity of the father’s allegations against the mother, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 Fam LR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

CONSEQUENCES OF THE FAILURE OF THE MOTHER TO CROSS-EXAMINE ABOUT ALLEGATIONS

1. In her affidavit filed 30 March 2012, the mother did not restrict her allegations of sexual misconduct only to the father, but extended them to a number of his family members.  It is unnecessary to set them out in any detail by reference to the actual contents of the mother’s affidavit, as the headings deployed in that document give a sufficient flavour of the character of what was alleged.  Those headings include items such as “applicant simulates sex act with his mother,” “applicant’s father was suspended from school duties for inappropriate behaviour with a child,” “applicant’s mother’s sexualised play with [the child]” and “applicant’s family’s constant sexual innuendo”. 

2. At para 102(x) of that affidavit the applicant seemed to draw some of her allegations to a head as follows:

   The applicant’s parent’s (sic), one of his three siblings, and three of the siblings’ children, also show a perverse sexuality:

   ·The paternal grandfather, [Mr K], constantly speaks with crude sexual innuendo, regardless of the occasion or to whom he is speaking;

   ·The paternal grandmother sexualises games with [the child] and the applicant;

   ·The applicant’s brother- in-law, [Mr X], said nothing about his 9 year old daughter, withdrawing her mouth from his 4 year old son’s penis; and

   ·[The child’s] cousin, [M], inserted sticks into [the child’s] anus and kept doing it, despite [the child] pleading with him to stop.

3. Additionally the mother said that a room which the paternal grandmother had, on occasion, used for remedial massage, and which it appears the child sometimes referred to as the “rubbing room,” “is to my mind, a pseudonym for sex play.”  It appears as though there was an inference, if not positively intended by the mother, nonetheless available from that evidence, that somehow or other the paternal grandmother was associated with that alleged sex play.

4. Most, if not all, of the allegations made by the mother were emphatically refuted in affidavits filed by the persons against whom such allegations were levelled.  Not only were many of those witnesses not required by the mother for cross-examination, but in relation to the one witness who was required, her cross-examination did not touch upon any of the relevant allegations made by the mother.  Ms Wilson contended that the consequence of that was that the allegations must be taken to be abandoned, and the Court was thus precluded from determining them, or at least determining that the allegations had a factual foundation or other merit. 

5. In my view, such a contention is unsustainable.  All that a party is required to do is to give notice of their version of events sufficient to enable the other party to address them, and should they wish, put evidence before the Court contrary to that version: see LC v TC (1998) FLC 92-803 at [38]-[39]. However that is not to say that in such a case a Court would be particularly assisted by a trial being conducted in such a manner: far from it. In an extreme case it could be that a Court was simply left with conflicting affidavits with neither deponent being called to give evidence. In such a situation, a Court would be at a great disadvantage in determining which of the competing versions ought be accepted. Perhaps an appropriate response in such a case would be to decline to find anything relevant to the allegation established on the balance of probabilities, but that no doubt will be a matter for any Court which is confronted with such a situation.

6. Fortunately here, in the course of submissions, it became plain that counsel for the mother was not asking for any findings to be made in relation to the allegations made against the father’s family contained in the mother’s affidavit, and conceded that the truth or otherwise of the allegations was wholly irrelevant to the determination of any issue in this case.  In those circumstances, perhaps a better approach would have been to not read or rely upon the aspects of the mother’s affidavit which contained those allegations, in consequence of which it would not have been necessary for the father to read the affidavits of the witnesses against whom the allegations were made.  However ultimately I agree that the additional allegations raised by the mother are irrelevant per se, although as I indicated during the course of argument, the fact that she made them, and more importantly the fact that she was prepared to make such serious allegations on the basis of the facts set out in the affidavit which she apparently thought justified making them, may itself be significant.  Particularly, it may support a conclusion that the mother readily infers a sexual aspect to events which others may see as wholly benign, and may be prepared to ascribe sinister motives to what may have been intended as wholly innocent conduct.

THE STATUTORY REGIME

1. A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

4. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.

DOES THE S 60DA(1) PRESUMPTION APPLY, OR IS IT REBUTTED?

1. Here it is suffice to say that, even if I were persuaded that there were no reasonable grounds to believe abuse or family violence had occurred, I would be satisfied that is not in the best interests of the child for the parents to have equal shared responsibility for him: indeed that was common ground between all parties at the bar table.  No doubt that was in view of s 65DAC.

2. Here there has been a long history of acrimony between the parties such that their communication is exceptionally poor, and at a level that would preclude any realistic prospect of amicable consultation between them, and make it nigh impossible for any joint decision to be made.  It was common ground therefore, that this is a case where, at least for the immediate future, one parent ought exercise parental responsibility solely, to the exclusion of the other, as otherwise the situation would be wholly unworkable.  In those circumstances, it is not necessary to traverse the s 60CC factors specifically in determining what is in the child’s best interests.  It simply cannot be in the child’s best interests to be the subject of a wholly unworkable order in relation to parental responsibility.

CONSIDERATION OF S 60CC FACTORS  

S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. There can be no doubt that both the mother and the father have much to offer the child.  Neither party contends to the contrary.  That is therefore not an issue in this case: the issue in this case is the extent to which other considerations either individually or collectively outweigh this factor.

S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Overview

1. This was by far and away the largest battleground between the parties, and to a large extent, seen by each as the principal determinative issue in the case.  In saying that, I do not ignore that, even if I were to conclude that neither parent presents an unacceptable risk to the child, the father still presses arguments dealing with the mother’s capacity to parent based upon her conceded narcotic dependence, and the child’s extensive absenteeism from school.  However neither of these issues have the magnitude of the allegation of the risk of emotional and psychological harm to the child while in the mother’s care.

Is the father an unacceptable risk?

1. The first occasion that the mother made any report to a third person about the father having potentially abused the child appears to have been in February 2010, when she spoke to the Child Protection Investigation Unit of Queensland Police to make a complaint that the applicant had inappropriately touched the child on his penis.  The background to this complaint is set out in paras 79 to 82 of the mother’s affidavit filed 30 March 2012.  In substance, she said that after spending time with the father, the child would show “disturbing behaviour” including wanting to pull her pants down.  She said “he would try and play with my breasts, straddle me and touch me in my private parts.”  Further, the child disclosed to the mother that his father slept naked with him in the same bed.  At the same time the child began to talk about “the rubbing room” but refused to disclose anything further “because he was afraid.”

2. As part of making her complaint, the respondent also told police about earlier behaviours of the father and/or the child which she asserted were troubling.  These are recited in a relevant police report[2] and included:

   ·On 23 August 2009, the child, whilst wearing underpants, put his groin in the father’s face and said “Daddy kiss my wee wee, kiss my doodle” whilst holding his groin area;

   ·An occasion when, although the mother and father were separated under the one roof, the father had climbed into her bed and was laying beside the child.  The police report said “[the father] was circling [the child’s] groin with his hand.  [The mother] admitted that she was not sure whether she had dreamt this or not;”

   ·In October 2009 the child returned from visits with the father and “always talks about bums and doodles;”

   ·On one occasion the child walked into the mother’s room, and while wearing underpants, tried to place his penis and testicles into her mouth, advising that it was a game taught to him by the father;

   ·On dates unspecified, the child pulled the mother’s pants down and attempted to kiss her on the bottom, which was something that the father would do to her when they were in a relationship;

   ·On occasions unspecified, the child had also tried to open the mother’s mouth and kiss her, and when doing so, tried to place his tongue in her mouth identifying that this was an idea which he had got from the father;

   ·The child referred to the “rubbing room” at the father’s house;

   ·On occasions unspecified, the child licked the mother’s face, and when she said that was inappropriate, and asked if anybody licked him on the face, he said “Daddy does.”

   [2] Tender bundle p.36.

3. The police interviewed the child on 20 February 2010.  Despite the solicitors’ best efforts, by the time of the conclusion of the trial before me, the recording of that interview was unable to be obtained.  Some evidence of it before the Court is contained in the police report contained in the Tender Bundle.[3]  Relevantly it provides as follows:

   Victim child has had great difficulties on staying on topic and was quite scattered in his conversations.  Victim child did not make any disclosures during the free narrative stage and did not answer most direct questions put to him towards the conclusion of the interview.  However, when asked directly about the rubbing room the victim child stated “my rubbing room is very special and I love it.”  Victim child would not provide any further information about what the rubbing room was even under direct questioning.  Protective behaviours were discussed and victim child displayed basic knowledge of his body and parts that shouldn’t be touched.  He referred to the parts that shouldn’t be touched as his special wee and his special bottom.  Victim child did not make any disclosures to ever being touched in these area (sic) but admitted that a friend from pre-school had punched him in his special wee and it hurt.

   [3] At pp.37-8.

4. The relevant police officers also interviewed the father on 20 February 2010.  He denied any abuse and was unable to offer an explanation for most of the behaviours allegedly portrayed by the child.  Relevantly the Police report[4] recorded “[s]uspect admitted that his son has done some of the behaviour in his presence such as try to kiss him on the bottom and kiss him on his face however had never tried to kiss him using his tongue, had never tried to place his penis and testicles into the suspect’s mouth or requested that the suspect kiss him on the wee or doodle as alleged by the informant.”

   [4] Tender Bundle p.46.

5. The Police report concluded “investigations indicate that it is highly doubtful any offences have occurred against the victim child and the matter is to be unfounded.”

6. It is pertinent to note at this point that although it appears as though in February 2010 the mother attempted to give the police a comprehensive history of disturbing behaviours on the part of either the child or the father, subsequently she has raised further matters arising from the time of cohabitation.  These include:

   ·That the father would encourage the child to “kiss mummy on the lips” and watch that occur.  He would then instruct the child to “now kiss mummy’s boobies” and “now kiss mummy on the tummy.”  She said that at the time the applicant would lie on the end of the bed and “was obviously enjoying watching us with a very unsettling gaze upon [his] face;[5]”

   ·A few days later the father “walked into the lounge room where the child and I were playing, completely naked, and then sat on the couch in front of us.  [The father] had his legs spread wide open and started to flick and tug on his own penis in full view of us, not saying a word.  Not a word was said, the applicant just had a vacant stare upon his face;”[6]

   ·The father would come up behind the mother, pull her pants down all the way to the floor and encourage the child to smack her bare bottom while laughing;[7]

   ·The father would pull down his own underpants to reveal his naked bottom and push the cheeks of them up against a sliding glass door in full view of the child, whilst the father was laughing.[8] 

   [5] Mother’s affidavit filed 3 December 2012 para.13

   [6] ibid paras.10 and 13.

   [7] ibid para.12.

   [8] ibid

7. Before leaving this aspect of the matter it is also useful to note that although in para13 of her affidavit of 3 December 2012 the mother attributed the above “shocking incident involving [the father] flaunting his naked body and toying with his penis” as “the last straw which broke the camel’s back,” - by which I infer she means it was the reason for her permanently separating from the father - quite a different explanation was given by her to her treating psychologist on 29 March 2012, recorded in her notes as follows:

   ... In 2009 [the mother] separated after she had discovered that [the father] was seeing his ex-girlfriend behind her back.  This was based on her discovered online discussions between them.  …She also discovered that around this time, [the father] was hiding a $20K debt from her.

8. The mother’s evidence was that she accepted the conclusion of the 2010 police investigation, and moved on.  Some support for that proposition can be gathered from the agreement which the parties concluded on 1 July 2010 in relation to the future parenting of the child.[9]  In substance it provided that the child would live with the mother, but spend substantial and significant time with the father.  Initially it appeared to work well, however the mother became concerned that the child was unsettled upon returning from his father’s care, and on that basis began to restrict the time which the father spent with the child.  It does not seem as though she had any concerns in relation to the father’s conduct, but rather that the child’s time with the father was simply unsettling him. 

   [9] Exhibit F1.

9. On 6 June 2011, the mother’s then general medical practitioner, Dr H, referred her to a psychologist, Dr T, upon whom she first attended on that date.  She returned on 5 July 2011 for what appears to have been her second visit.  Dr T’s notes of that consultation[10] in part record as follows:-

   Ongoing issues from past relationship.  Sleep is still a problem.  Pre-occupied with some comments from [the child] eg [the child] rocking himself and when she asked him what was wrong, he said “I can’t say to you what daddy said … it’s naughty, but it makes me feel naughty.”  She reported that [the child] and his dad share a bed together, which concerns her because of [the father’s] sexual comments towards people in the past.  [The father] is currently living with his parents and [the mother] is concerned that [the father] and his parents are trying to buy [the child] with toys.  She also states that [the child] is singing inappropriate songs (no examples given).  She reports a close relationship between [the father] and [the child] and his grandfather .. despite this.  She states that she has suspected some sexual abuse concerns in the past and this why she contacted child safety in the past, but it went no further due to a lack of substantial evidence.

   [10] Tender Bundle p.135.

10. Two days later, on 7 July 2011, the mother wrote to Dr H.  It is not necessary to recite in detail the six page letter,[11] however the following are the pertinent aspects of it:

    ·“Dr [H], I am at the end of my tether, and clinging on to each moment that passes on throughout every hour out of what seems a very long 24 hours.”

    ·“I am without exaggeration not coping with my day-to-day tasks.”

    ·“Now, on top of all of this, I am feeling extremely overwhelmed with anxiety about your reaction towards my choice…”

    ·“Also filled with immense anxiety that I am running out of options.”

    ·“[Dr H] I need to stabilise my anxiety levels, contain my medication…”

    [11] Tender Bundle pp.94-99

11. The mother returned to Dr T on 5 August 2011.  Dr T’s notes relevantly record:

    [The mother] reported a de-compensation in her mood since last visit.  She reports that she decided to stop her pain medication as she felt that it was not working anyway.  Also she reports that she has been trying to reduce her pain medication anyway to build up her pain tolerance, and she does not want to be on medication for the rest of her life.  She stated that she (sic) mother has been very supportive during this process and has been helping with [the child’s] care.  She states that the anxiety came back and that she found herself pre-occupied with the vague sexual comments made by [the child] towards his father.  She is confused about what to do this situation as she feels as a mother that she needs to protect him, particularly if these comments are true.

12. Later in those notes under the heading “issues discussed with client” Dr T recorded “today’s sessions appeared to be focused on this a lot.”

13. Pursuant to the agreement between the parties, on 15 August 2011 the child spent time with his father.  In para 85 of her affidavit filed 30 March 2012, the mother said this about the child’s return from that time:-

    This was the last time I let [the child] spend time in the [father’s] care.  When [the child] came home, getting ready for bed, [the child] went to kiss me that night, he stuck his tongue straight into my mouth and began flicking his tongue, like an adult full French kiss.  I had to pull him away.  He later started licking my ear in a sexualised way.  I told him not to do those things.  [The child] then talked about his father’s magic white water, “…that shoots out of daddy’s doodle.”  I later asked, “where did the magic white water go?” and [the child] pointed to his cheek. 

14. The following day, Tuesday 16 August 2011, the mother took the child to Dr H.  In a GP Mental Health Care Plan[12] prepared for the child by Dr H that day, she relevantly recorded:

    Parents separated, lives with mum but has overnight access visits with father.  Mother suffers from chronic headaches resulting in narcotic dependency.  She has a life-long history of emotional instability and what has frequently been assessed as histrionic behaviour by medical profession.

    [12] Tender Bundle p.105.

15. Later she continued:

    Mum reports [the child’s] behaviour can be difficult – refusing to follow instructions.  She has noted exacerbation of this following visits to father.  Mother reports that [the child] has disclosed sexual abuse in the last couple of days.  I have not seen [the child] nor [the mother] since this but understand that an appointment has been made for [the child] with [the mother’s] psychologist today.  I would suggest caution in assessing [the mother’s] interpretation of events and that [the child’s] statement be given priority and of course the appropriate authorities be notified if appropriate.

16. The Mental Health Care Plan recommended psychological assistance for the child.  On that same day, the mother took the child to Dr T.  Dr T’s notes[13] record as follows:-

    [13] Tender Bundle p.138.

    INTITIAL PRESENTING ISSUES:

    Appt  with [the child] today upon request from mother.  Counselling started off with [the child] and [the mother].  [The child] appeared hesitant at first, but finally disclosed that he was worried that daddy was in trouble because he has been talking to people about him because of what he (dad) did to me.  [The mother] explained to [the child] that today’s session was about talking to … about things that dad did, like rude or naughty games, like the licking game and the magic water.  [The child] seemed uncomfortable with this (fidgeting).  [The child] started off brief responses initially and it was noted that while [the child] was talking to me in the early stages of the session, he seemed concerned about his mother being there.  He was looking at his mother from time to time as if he was looking for validation.  [The mother] elected to leave the session at this stage and [the child] and I continued on.  I asked [the child] what other things worried him about your dad.  [The child] replied the licking game.  When I asked his what the licking game was about because I have never played that game before.  He said, I have to lick things in daddy’s room like the door and things.  I enquired what other things .. what dad tells me.  I asked if sometimes dad asked him to lick him, he replied, sometimes on the face.

    I asked [the child] if he knew what inappropriate touching was.  He said, when someone touches you on the private parts.  I asked do you think licking dad on the face inappropriate, [the child] replied no.  I gave [the child] a doll so that he could show me where he thought the private parts were.  He identified these areas correctly.  I asked [the child] if anyone has touched him on the private part.  He started to rub the doll between the legs and said “daddy was touching me in the private part.”  When I asked which private part, he said “the doodle”.  He said that this happened in the pool and the shower and sometimes in bed, cause I sleep with daddy.  I asked [the child] if anyone else saw daddy touching him on the doodle, he said no one else, just when I’m with daddy.

    Asked [the child] if he could tell me more about dad’s ‘magic water’.  He said once that daddy sprayed magic water on his chest while he was sitting on the toilet.  He said that the magic water came from his doodle.  I asked [the child] if he has seen daddy’s magic water before, he said no, only one time.  I asked [the child] if talking about this makes him feel uncomfortable, he said no.  I asked [the child] to show me on the doll where dad put the magic water, which he did then [the child] put his face in his hands, saying sometimes I forget things … Ah I don’t want to do this anymore.

    [The child] started to show signs of disengagement and session was terminated.

1. Dr T referred the child on to a child psychologist, Ms R.  It appears as though the child first saw Ms R on the same day as he saw Dr T, ie 16 August 2011.  Her notes of consultation with the child for that day[14] relevantly provides as follows:

   [14] Tender Bundle p.130-131.

   Background information from mum

   ·...

   ·…

   ·Mum informed has previously notified CPIU re: [the child’s] dad ([Mr Kirby]) exposing himself to her and [the child] – mum unsure of date. Mum also stated she has previously witnessed [the child’s] dad touching [the child] on his genitals through his nappy when [the child] was younger …

   ·Mum informed that she feels threatened and bullied by [the child’s] father and his family.

   ·…

   ·Mum stated that that many members of [the child’s] fathers family exhibit sexualised behaviours including grabbing each others bottoms.  Mum also stated that the grandfather had been suspended from his job as a teacher previously re: sexualised behaviours with a student.

   ·This is of concern to [the child’s] mother as [the child] has ongoing contact with this grandfather when in the care of his father.

   ·Mum also concerned by [the child’s] father increase in buying presents for [the child] at every visit and she stated that she thought the dad was “grooming” [the child].

   ·…

   ·Mums current concerns – [the child] sleeps in same bed as his dad when he stays at that house.

   ·Mum informed that [the child] has been exhibiting increasing sexualised behaviours including trying to pull his mums pant’s down, touching her breasts, rubbing genitals up against his mother, trying to sit on mothers mouth and attempting to poke her vagina.

   ·Mum also stated she has noticed an increase in restlessness when she puts [the child] to bed at night and at this time [the child] rubs his penis.

   ·Mum also stated [the child] has also been licking and kissing objects including the TV and attempting to lick and suck on mums face.

   ·Mum informed that she had asked [the child] what else he licks as she had thought it was some sort of game and [the child] stated that he licks daddy.  Mum stated she had asked [the child] where he licks daddy and [the child] had said on the belly button and the doodle (mum said this is [the child’s] word for penis).

   ·Mum further stated that [the child] had informed her that the doodle was slippery and soft and it sometimes gets angry.  Mum said when she asked [the child] what got angry he said the doodle gets angry and when it gets angry it stinks and goes up his nostrils.

   ·Mum stated that she had noticed that upon return from contact with his dad [the child] sometimes has a certain smell on his breath.  Mum stated it smells like semen.

   ·Mum also stated that [the child] has previously disclosed to her that “daddy makes me feel dirty”.

   ·Mum stated that [the child] has previously disclosed that he had a stick put up his bottom when in his fathers care – [the child] informed his mum this was done by his cousin (who Mum informs is of a similar age to [the child]).

   ·…

   Initial discussion with [the child]

   ·…

   ·I asked [the child] how he had been feeling lately and asked him if he had been happy or sad and he said happy.  I asked him if he ever feels angry and he stated that he doesn’t feel angry but remembers when he was 5 years old that he felt frustrated.  I asked what had made him feel frustrated and he said that he didn’t want to have a shower at daddy’s house once and that he had made him feel frustrated.  When I attempted to ask him further about this he stated “that is it”.  At this time the session was stopped as [the child] concentration level was reducing and he was exhibiting signs of feeling uncomfortable – less eye contact, no further talking. [Errors as in original]  

2. It appears as though the child next attended Ms R on the following day, 17 August 2011.  Her notes of that are as follows:

   ·Briefly spoke with mum who informed that [the child] had spoken about a new game that he has been playing at his dad’s house called the licking game.  Mum stated that [the child] had informed her that the game involved licking daddy on the nipples and the doodle (Mum informed that doodle is [the child’s] word for penis).

   ·Mum advised she had contacted Child Safety anonymously for advice re: [the child] – but didn’t elaborate on the advice she had received.

   ·During this session I continued to build rapport with [the child] – we talked more about his family; his favourite foods and the things that make him feel happy.  [The child] again talked about the different games/activities that he likes to play at his mum and dad’s house that makes him feel happy.

   ·[The child] began talking about a game called the “licking game” that he plays at his dads.  I asked if he could tell me a bit about the game and how it is played.  I provided [the child] with some butchers paper and informed that he could draw the game to explain if he wished.  [The child] drew a picture of the butcher’s paper – initially writing the word licking and then writing down the numbers one to seven and – drawing/writing something next to each of the numbers.  Once [the child] had finished drawing I asked him if he could tell me about each step he had drawn and he informed the following:

   1.Lick

   2.Try to lick something

   3.Lick Door

   4.Lick Bed

   5.Lick the Shelf

   6.Lick the handle on the door

   7.Lick someone (a man)

   8.Lick daddy’s cheek

   I asked [the child] who had taught him to play the game and he said daddy.  [The child] stated “that is it” advising he did not want to talk about the matter any further – at this time the session was ceased. [Errors as in original]

3. Ms R reported to the mother’s solicitors in a letter dated 9 April 2012 about her sessions with the child in the following terms:

   Allegations

   During sessions [the child’s] mother ([Ms Holmes]) disclosed an escalation in [the child] exhibiting sexualised behaviours towards her and reported that he kissed her inappropriately on the mouth, attempts to touch her genitals and gyrates towards her genitals.  [The mother] also reported that [the child] had disclosed to her that he plays a “Licking game” with his father which involved licking objects and then licking “daddy’s doodle” and stated that [the child] has bad breath (smelling like semen) when he returns from visits with his father.

   During an individual session [the child] made some brief disclosures relating to the “licking game” and drew the steps of the game of a large piece of butcher’s paper.  [The child] briefly described each step involved (seven steps in total) with the steps involving licking different objects and then “licking daddy”.  When questioned further where he licks daddy he stated the cheek.  When question regarding how he had learnt to play this game he stated that “my daddy taught it”.  [The child] appeared to be uncomfortable regarding the disclosure and stated “that’s it” and it was at this time that this discussion was terminated.

   Due to [the child’s] young age and the brief disclosures it was unknown as to the authenticity of such accounts, however given the serious nature of the allegations made by [the child], and his mother I was required to notify the Department of  Child Safety and did so on the 18 August 2011.

   …

4. The Department of Child Safety received notification on 18 August.  The Departmental file was subpoenaed and admitted into evidence.  It records, in part, the following:[15]

   [15] Tender Bundle p.65.

   …

   ·[The mother] has regarded [the father] as a potential sex risk to the child ever since they separated. …

   …

   ·[The mother] reports that [the father] and [the child] would share a bed – [the child] is having more overnight stays with father, [the child’s] sexualised behaviours have become worse.

   ·On the evening of 16 August 2011 [the mother] advised that she was staying at her parents for the night and sleeping in the same bed as [the child].  [The child] offered to ‘lick her genitals’.  (Notifier indicated that this was [obliterated] own words).

   ·Since then [the mother] has withheld overnight contact between [the child] and the father.

   …

   ·Notifier is aware that [the mother] withheld overnight contact between [the child] and [the father] last night.  [The father] happens to reside with his parents and [the mother] sees the paternal grandmother as a protective factor.  Because the grandmother was in hospital last night she withheld contact.

   …

   ·[The mother] presents as dramatic.

   …

5. The child was interviewed by Child Safety Officers at 11:00am on that day ie 18 August 2011.  As I have previously indicated, unfortunately the recordings of the s 93A interviews were not available during the trial.  However there is a summary of it in the Departmental records as follows:[16]  

   [Ms E] reported that [the child] stated:

   He mainly lives with mum but sometimes on weekends stays with his dad (the suspect).  He stated that he plays a licking game with his dad and starts with him licking the bed, and dad licks a door handle.  Each person takes turn licking something.  During the game his dad licks his cheek (face) and his belly button.  These are the only places on his body that have been licked in the licking game.  The licking game has happened three times.  Other games he plays at dad’s are tiggy and playing with … the dog.  Games he plays at mum’s are Wii and playing with the dog ….  He readily identified his ‘doodle’ as a private part where special water comes out when you go to the toilet.  Initially he said that no one had ever touched him on his doodle, and he had never touched anyone else’s doodle.  Under direct questioning he stated that his dad licks his doodle during the licking game.  He clarified this as dad licking his doodle on the outside of his clothes as his clothes stay on during the licking game.  He then stated that there had been no times that anyone had touched his doodle.  His version at this stage became confused with him stating that he gets licked on the outside of his clothes by the suspect during the licking game, but then he would say that no one had ever touched his doodle.  The conversation was unable to be further clarified as the child became restless and the ICARE was concluded.

   This disclosure was very muddled, with disclosures being only under direct questioning and then him changing his statements when asked different questions.  His version is not particularised well enough to put before a court.

   [16] Tender Bundle p.65.

6. That report then continued:

   A meeting was arranged on 9/9/11 for [the mother] to bring [the child] into the … CSSC of 2pm 12/9/11.  [The mother] arrived at 2.30pm without [the child] and stated that she did not want him to be interviewed and end up with systems abuse by being reinterviewed.

   On 16/9/11 CSO [W] spoke to [the mother] who told her that she would not be bringing [the child] in to be interviewed when she comes into the office as she does not feel that he needs to be interviewed.

   On 23/9/11 [the mother] arrived at the office for her interview without [the child] again stating that she did not feel he should be interviewed.

7. The Child Safety Officers interviewed the father on 16 September 2011.  He denied sexually abusing the child, or ever crossing boundaries with him.  The most that he has ever done that could be misconstrued was to “only blow raspberries on his tummy.”[17]  He admitted that the child had come up to him and licked him but explained that “he is a normal kid”.  Interestingly the Departmental records state that “[The father] stated that [the mother] is a good mum and that she would not harm [the child] unless she has gone right off.  Her behaviour is erratic.”

   [17] Tender Bundle p.68.

8. The Departmental records relating to the investigating officer’s interview with the mother on 23 September 2011 relevantly state:[18]

   [18] Tender Bundle pp.66-7

   [The mother] stated:

   ·I came here today because basically [the child] has been sexually abused by his father [Mr Kirby].

   …

   ·[The father] has anger issues he has threatened to punch me in the past, which caused me a lot of stress.

   …

   ·There was an incident I recall when [the child] and I were watching a children’s program on TV.  We were jumping, laughing and singing.  [The father] was in the bedroom.  [The father] then came in to the lounge completely nude and sat sprawled out on the couch.  [The father] started flicking his penis and playing with his penis and looking at us.  I started crying, picked up [the child] and left the room.  [The child] would have been around 3 years old.

   ·I went away to a conference for the weekend in Aug 2009.

   ·[The child] was alone with [the father] for the weekend.

   ·After I came home [the father] was lying down, and I was in the same room with [the child].  [The child] started saying to [the father], “kiss me on the pee pee”.  I didn’t say anything and left the room with [the child].  Once we were outside the room I asked [the child] what he had said [the child] stated, “daddy kissed me on my pee pee.”  [The father] heard this from the other room, and got angry because he didn’t think that I had heard [the child] say anything.

   ·[The child] would have been around 2 years old.  No I didn’t report this because I went into protection, family mothering mode.  Took [the child] away.  (Becomes emotional)  I was being medicated by [the father].  He would give me way too much and then he would have sex with me.  This would have happened maybe 4 or 5 times.

   …

   ·I have been exposed to perverted sexual behaviour even before [the child] was born.

   ·There was an incident when I picked [the child] up on a Monday from [the father].  I can’t remember when exactly, its in my journal.

   ·Straight away after I picked him up I noticed that his behaviour was strange, he was trying to put my hands on his penis.  [The child] was trying to French kiss me, like a passionate lover might kiss their partner.  I was lying on the bed and [the child] ran up over the top of me like he was trying to put his penis in my mouth.

   ·When we were sitting in the lounge [the child] was kissing everything in sight.  He was licking everything including licking me on the face.  I told him that it was not a good thing to do that it would make him sick if he licked dirty things.  [The child] was very innocent like he was playing a game.  I asked [the child], “what else have you been licking?”

   ·[The child] stated, “Daddy.”

   ·I didn’t press him on it because I didn’t want him to feel uncomfortable like he had done something wrong.  I asked him again later, “what else have you been licking?”

   ·[The child] stated “daddy on the doodle, and on the face.”

   ·[The child] was in a game state when he was telling me these things, he thought that licking everything was a game.

   ·All that strange behaviour that [the father] had shown over the years made sense to me.

   ·After that [the child] opened up more to me, he stated that daddy slept with him with no clothes on.

   …

   ·CPIU investigated in 2010, and again this year.

   …

   [The mother] espressed (sic) concerns in relation to Child Safety’s processes and actions, continually asking what we would do about this?  [The mother] expressed concern in relation to [the child] being interviewed.

   …    

9. Also in the course of their investigation in 2011 the Department contacted the child’s school principal.  The Departmental records record that the principal said “classroom teacher stated that [the child] has not been displaying any sexualised behaviours or any behaviours that are out of the ordinary or of concern.”[19]

   [19] Tender Bundle p.70.

10. On 30 September 2011 the Department wrote to the mother advising that its investigation was concluded with an outcome “unsubstantiated harm: child not in need of protection.”  It continued:

    There was insufficient evidence gathered throughout the assessment period to suggest that [the child] .. has suffered emotional harm due to sexual abuse,

    …

    It has been determined that [the child] is a child not in need of protection and there will be no intervention by the Department at this time.

    …

11. Notwithstanding that conclusion the mother has since then at all times remained adamant that the father had sexually abused the child.  On that basis, she continued to withhold the child from the father and insisted that any time he spent with him be supervised.  She was also extremely circumspect about the identity of appropriate supervisors, objecting to most of the father’s family, ostensibly on the grounds of their own sexualised conduct, or seeming acceptance of what she believed was sexually aberrant behaviour. 

12. Even in relation to time that the child has spent with the father under such supervision, she has been, and remains, convinced that such supervision was deficient.  For instance at para 3 of her affidavit filed 6 November 2012, the mother swore to perceived deficiencies in supervision by the father’s brother.  Moreover in her affidavit filed 2 July 2013, the mother swore to the child disclosing, after spending time with the father on 27 April 2013, that he had been playing alone with his father on an iPad in the back play room at the father’s parents’ home.  She asserted that the child said that the relevant supervisor was not present.  Later that evening the mother says that the child commenced to watch x-rated pornography on her computer.  In an ensuing conversation, the mother said that the child disclosed that he had seen his father masturbating to pornographic videos on the father’s computer, and that the father would kiss the child.  The mother says that she asked him “when did this last happen?” to which the child replied “Oh ..2009, and 2010 and 2011.”

13. It is not clear as to whether or not the mother says that the occasion which the child asserts that he saw his father masturbating was on the 27 April or not: however the relevant supervisor for that day, Ms U, in her affidavit filed 1 July 2013, said that during the times that she has supervised the child’s time with the father, she has never been out of sight or hearing of the child when he was with the father.  Further she said that she had never witnessed any inappropriate behaviours during her supervision.  Based on that evidence, and particularly the mother’s failure to cross-examine Ms U, I accept her evidence and find that on the occasion of 27 April there was proper supervision by her and no untoward conduct by the father towards the child.

14. The mother’s evidence is that the child regularly makes reference to the father’s sexual abuse of him in the past.  In some respects this is supported by evidence of her mother, Mrs Holmes, in her affidavit of 18 October 2012 where at para 47 she said that since the last involvement of the police and DOCS in 2011 “[The child] has said things about what his “Daddy” does with him, being of a sexual nature, in front of me and other family members.”  Also in that affidavit the maternal grandmother referred to conversations in which the child has declared that “Daddy has to apologise for what he has done” and “Daddy has done some naughty things.”  Later at para 54 she said in relation to the child “he has at varying times and places, out of the blue, made shocking statements about the applicant’s behaviour with him, leaving those of us who heard him in shock.”

15. The Court has the benefit of two Family Reports prepared by Mr P.  He was briefed with material relating to the background of the matter, and conducted interviews with the mother, the father, the child and also the paternal grandparents.  The child made no disclosures to Mr P during his interview with him.  At para 60 of his report filed 28 June 2012 Mr P recorded as follows:

    In subsequent discussions concerning his day-to-day experiences, the writer noted that [the child] freely reported “I live with mum but I haven’t seen dad for a long time” and later added “he (his father) had a fight with mum but I don’t remember why.  But I really miss him.

1. He continued:

   [61] Further, [the child] stated “I would like to see him again and I told mum but she says we might be seeing a man like you (pause) to try to help”  and added “they (his parents) don’t like each other and it makes me feel sad.  And I think about my dad every single day.

   [62] In subsequent discussions concerning his experiences of his parents, [the child] stated “Dad is kind and he can be a bit mean if I don’t behave.  But he wouldn’t hurt me.  He can cook fish and chips and spaghetti and that’s all I think” and proactively added “I am very pleased to see him today and I thought I might see him and I was thinking that I would see him today. 

2. In that report Mr P noted that the child demonstrated a capacity for suggestibility.

3. Mr P further interviewed the child on 30 May 2013.  During that interview the child disclosed “I am happy with seeing Dad.”  In para 56 of his second Family Report Mr P reported “[at] this juncture, the writer asked [the child] whether his Mum was happy with him visiting his Dad, and noted he responded “no; I think, she is nervous” and when queried why he though his mother was nervous, [the child] responded “because she asks me a lot of questions.”

4. At para 57 Mr P said:

   When queried concerning whether he would like the arrangements to stay the same, [the child] responded “I used to have sleepovers for one night in 2009, I think (pause) so I would like to go back to that now.

5. In his report of 30 May 2013, Mr P addressed potential explanations for the mother’s reporting of the child’s disclosures.  At paras 81 to 84 he said as follows:

   81. Further, the writer notes that [the child] reported awareness of his mother’s “nervousness” concerning contact; and as being related to her post-contact questioning; and further highlights that the mother’s explanation of the emergence of [the child’s] reports of concern, informed poor insight on her part regarding the processes she utilises to obtain such information.

   82. The writer notes that formal, psychometric testing of the mother on the previous report occasion raised specific issues concerning her functioning; and which provided diagnostic outcomes likely related to the mother’s allegations.

   83. Specifically, in the writer’s opinion, such results continue to corroborate clinical impressions of the [mother] as an individual who does struggle with a number of functional challenges; but particularly in respect of anxiety and processing of uncomfortable emotional states (for example, fear).

   84. In the writer’s professional experience, and clinical judgment, the allegations being made by the mother more likely relate to her own functional (e.g., anxiety) challenges; and as a more parsimonious explanation, rather than actual risks to [the child] from his father and/or members of his father’s family. 

6. Also in evidence before the Court were two reports of a psychiatrist, Dr Y, who separately interviewed the mother and father.  He reported that the father “does not give evidence of significant, continuing, relevant psychiatric disturbance.”  He later said “there is nothing in his history or presentation that would lead me to consider that he is someone who is likely to sexually abuse his own children – or anybody else for that matter.”  He concluded:

   The problem with claims of sexual abuse especially in separation is that while the claims can rarely be substantiated, they cannot effectively be completely disproven.  I have to say that having seen this man now and read all the documentation, I have difficulty accepting the mother’s view that he has sexually abused the child and believe that he would be perfectly adequate and competent parent and has a lot to offer the child.

7. In his report in relation to the mother (which concluded with “general comments about the [Kirby/Holmes] matter”) he said as follows:

   The problem we have with her is this belief that she has or claims to have – that the father has been sexually abusing the child.

   From the way she describes it and from the documentation I read, I have to say in my opinion it is most unlikely that the father has been sexually abusing the child and especially in the way that she believes he has.  I note for example she made the comment that when the child came back to her his breath smelled of semen.  

   I noted, too, that somehow or other she has generalised the abuse of the child by the father to his family – except for one older brother.  My view is that this is all most unlikely and I am of the view that it is likely that all of this is destructive to the relationship of the child with the father and the father’s family and that the child is the one who misses out here.

8. The mother presented in the witness box as having a fervent conviction that the child had been sexually abused by his father.  She simply could not contemplate that it may not have occurred.  Even the suggestion that it may not have occurred caused her to become extremely emotionally distraught.  I formed the impression that she thought that by emphasising the fervour of her conviction to me, she could persuade me to adopt her belief.  I had a similar impression of her mother. 

9. However an objective analysis of the available evidence does not support that belief.  Particularly:

   (a)The only person to whom persistent disclosures have been made by the child is the mother, and in that regard, I accept the evidence of Mr P that the fact that she makes the allegations most likely arises her own anxiety, or at least are strongly influenced by it.  It is telling that the disclosures of 15 August 2011 were preceded by at least five weeks in which the mother was “pre-occupied” with her concerns that the child was being usually abused by the father. 

   (b)It is plain that even from the child’s perspective, he identifies intensive questioning by the mother upon his return from any time with the father.  The mother is clearly anxious to investigate the prospect of any abuse having occurred.  Worryingly, it appears to be a regular topic of conversation, which she does not discourage.  Whilst I cannot make any finding that she intentionally, rather than unwittingly, encourages such disclosures to be made, it is plain that she seeks to generate or promote opportunities in which the child can tell her of the events that he has experienced, which behaviour is partly caused by her own high anxiety. 

   (c)To the extent that the child has made disclosures to others, they have been either in the mother’s presence, or when she has set the scene for the conversation with that other person.  For instance, the mother explained to the child in the presence of Dr T on 16 August 2011 what he was to talk to her about, and significantly, that Dr T had the view that the child was looking for validation from his mother.  This is consistent with the mother having been intimately – albeit not necessarily malevolently – involved in the development of the narrative which the child thereafter gave to Dr T.  This is also consistent with the sequence of events which preceded what might otherwise have been a significant disclosure by the child to Ms R about the “licking game.”  It is plain that the mother had spoken to the child about the game prior to the child telling Ms R about it, as the mother is recorded as having told Ms R of the game prior to her speaking with the child on 17 August. 

   (d)As I have already noted, in her letter of 2 April 2012 to the mother’s solicitors, Dr T herself noted that the child’s disclosures were “vague and the authenticity of such accounts are questionable due to [the child’s] age and [the mother’s] high anxiety levels at this time.”  This, of course, largely is Mr P’s view.

   (e)In 2011 when interviewed by Queensland Police, the child specifically said that no one had ever touched him on his doodle and that he had never touched anyone else’s doodle.

   (f)The mother’s reporting of events shows some inconsistency.  For instance, as noted in para 34 of these Reasons, the mother’s list of aberrant conduct by the father reported to Police in February 2010 has since been added to by at least four significant further allegations.  Further, on some occasions different reports are made of the same event.  For instance on 23 September the mother told Police that on 15 September 2011, the child had tried to put her hand on his penis, however this is not contained in any of her other accounts of the events of that day.  Likewise the mother’s evidence in the witness box, to the effect that the disclosures by the child on the evening of 15 September 2011 took place over a period of one and a half hours, was a detail that had never previously been volunteered by her.

   (g)When pressed in cross-examination as to why, on occasion, detail of events which she first gave in the witness box had been omitted from her affidavits, her explanation, namely that she thought that was “too much detail to go into,” was, at best, unconvincing.  The most telling instance of this related to an allegation first made under cross-examination that, in relation to the occasion when the father was in the mother’s bed “circling” the child’s penis with his hand, the father was getting sexual gratification from it, was holding his own penis through his clothes and had a glazed expression on his face.  To my mind, those would all have been critical matters to have not only told Police, but also this Court in her affidavit.

   (h)Likewise the mother’s oral evidence that she only told the Police in 2010 that the above event may have been a dream, because she was concerned that the father might otherwise have become violent, is unconvincing.  It is consistent with her being anxious to seek to paint the father and his family in the worst possible light.  In similar vein is her attributing the cause of their final separation to the father masturbating in front of her and the child.  Her explanation for separation given to Dr T, namely the father’s infidelity and debt, makes no mention of the alleged masturbation.

   (i)The mother appears to have both a low threshold beyond which she interprets conduct as sexually inappropriate, together with a capacity to overstate things and jump to conclusions.  An example of the former are her several allegations of sexually inappropriate conduct by members of the father’s family.  An example of the latter is her persistence in asserting that the child’s cousin had inserted a stick in the child’s anus.  When confronted with the unlikelihood – or impossibility – of that, she conceded that the stick had been pressed against the child’s bottom, through his clothing.  A further example is her concern about the child’s reference to the “rubbing room” which, rather than being construed as a benign reference to the maternal grandmother’s massage area, was instead construed as a place where sexual rubbing occurred.  Likewise her report that the child’s breath smelt of semen on occasions when he returned from time with the father, was another example.     

10. The allegation that a parent represents an unacceptable risk of sexual abuse to their own child is an extremely serious one.  In accordance with s 140 and the authorities relevant to it, I would need to be persuaded to the requisite degree, on the balance of probabilities, given the gravity of those allegations.  For the reasons identified in para 68 hereof, I am not so persuaded in relation to the father.

Does the mother present an unacceptable risk to the child?

1. The precise nature of the harm which it is said the mother presents a risk of to the child is not easy to identify.  In para 35 of his counsel’s written submissions, the father said that “the child is at risk of emotional and psychological harm in the mother’s care.”  It might have been thought that that was intending to refer to the prospect of the destruction of the relationship between the child and the father and the father’s broader family, however that paragraph went on to refer to “the mother’s psychological challenges or drug dependence and the risk they pose to the child.”

2. Further, it appears that the risk of harm is said to at least partly arise by virtue of events which have not yet happened, and indeed may not happen.  In that regard the evidence of both Mr P and Dr Y was that, in the event that the Court were to permit the child to spend unsupervised time with the father, the mother would likely have a strongly adverse reaction – given her vehement conviction that the father has abused the child – and would find it very difficult to cope in the short term and perhaps the medium term.  Their view was shared by the mother’s psychologist, Dr T.  However beyond generalisations as to the difficulties which the mother may face, there was a lack of specificity as to the nature of her reaction and the likely duration of it.  There was also a general consensus of opinion that the mother would need professional assistance to cope, but the nature and intensity of that professional assistance could not be predicted, save to say that it was likely that the need for such assistance would be greater in the event that the orders of the Court were to have the child live with the father, and spend only supervised time with the mother.  Presumably the reasoning behind the prediction for a greater intensity of response in that scenario was because the mother would know that the child was spending virtually all of his time, unsupervised, with the person who she believes has been a serial sexual abuser of him.

3. There are perhaps other aspects of the evidence which feed into the allegation that the mother presents as an unacceptable risk to the child.  The first is the mother’s undoubted narcotic dependence.  This dependence arises out of her need for pain relief.  It did not seem to be suggested by any party during the trial that the mother does not genuinely suffer from pain.  Whilst Mr P was of the view that perhaps the pain was itself the product of a conversion disorder, in which psychological issues are transformed into physical problems, even if that be true, it does not mean that the mother is not genuinely experiencing those physical symptoms, or that she is exaggerating them.

4. It is possible that on occasions the mother’s dependence has impacted upon her capacity to provide care to the child.  For instance in her letter of 7 July 2011[20] to her then GP, the mother admitted to not coping with day-to-day tasks, but it does not appear to be asserted by any party that that was to the point where the child was at risk of some form of physical or emotional harm.

   [20] Tender Bundle pp.94-9.

5. A further factual matter which may be relevant to the finding of unacceptable risk is the degree to which the child has failed to maintain adequate attendance at school.  The evidence disclosed that his attendance at school could be fairly be described as abysmal.  However on occasion there have been legitimate excuses for his non-attendance, and further, some of the many absences were half day only, which appears mainly to be due to him being frequently late for school.  Indeed the child described himself when speaking to Dr T on 23 November 2012 as “late for school all the time”.[21]

   [21] Tender Bundle p.165.

6. It has to be said that the mother’s attitude to the absences from school, and particularly her somewhat blasé response to the school’s recent correspondence[22] to her expressing concerns about the child’s non-attendance, to the effect that “it was only a computer generated letter” was less than satisfactory.  However it is difficult to conjecture such a concern, whether in isolation or in conjunction with the other matters raised, into an unacceptable risk of emotional or psychological harm.

   [22] Tender Bundle p.161A.

7. There is no evidence that the child presently has, or previously has had, any psychological or psychiatric disorder or disease.  Moreover, to the extent that it might be said that he has experienced emotional harm to date by virtue of the mother’s insistence that any time he spends with the father be supervised, in consequence of which either he has been unable to see the father at all, or has been very restricted in that time, I am particularly mindful of Mr P’s opinion which he appears to have held since June 2012, that the child has demonstrated robustness, in that notwithstanding the lack or reduction of time with the father, he nonetheless reported that he thought about him every day.

8. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

9. In Harridge & Harridge [2010] FamCA 445 Murphy J, having recited the above passage, proceeded to adopt the following list of inquiries in relation to risk assessment:[23]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [23] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

10. I gratefully also adopt that passage as helpful in cases such as these in analysing the asserted risk. 

11. Here the harmful outcome that is potentially present is the risk to the child that he may suffer emotional and/or psychological harm by the mother’s future conduct arising from her fervent belief that the father has sexually abused him.  In the past it is clear that this belief has caused her to closely question the child upon his return from spending time with the father, to the point where the child himself identified that the mother was “nervous” with him spending time with the father.  It is thought that this may continue, particularly if unsupervised time commences, or if it does not continue, the mother may resort to what Mr P referred to as “more subversive” approaches to diminish the child’s relationship with his father, with a similar risk of harm attending them.

12. As to the second question, the probability of harm eventuating depends upon the potential orders that might be made.  As stated above, the expressed concerns of Mr P were that if the child were to spend unsupervised time with the father, the mother’s reaction might include further questioning, but also might extend to subversive activities designed to impact upon the significance of the relationship between the father and the child.  However there is no evidentiary link other than inference between the possibility or probability that the mother will react adversely on the one hand, with the probability that her conduct will impact upon the child in such an adverse way that it effects harm to him on the other.  As I have already observed, Mr P himself noted the robustness of the relationship between the child and his father.  It cannot seriously be doubted that an increase in the time that the child spends with the father, including unsupervised time, stands to enhance and strengthen that relationship.  I therefore conclude that if the father spends unsupervised time with the childand yet the child continues to live with the mother, the probability of there being actual emotional harm suffered by the child is not great.

1. Turning to the third question, the most probable risk in the short term is that the mother will have difficulty – perhaps even extreme difficulty – in coping with the child spending unsupervised time with the father.  However she has been in receipt of psychological counselling in the past, and I heard evidence from her current psychologist.  Other than saying that she may have difficulty in coping, no one went so far as to say that difficulty was insurmountable.

2. Towards the conclusion of her oral evidence, I asked the mother some questions directed specifically to how she believed she would cope in the event that the child commenced to spend unsupervised time with the father.  Although plainly she did not enjoy contemplating that outcome, to her credit she had nonetheless done so.  In fact interestingly, to an extent, she came prepared to Court to answer that question.  Her evidence was that the night before she had been reading her Bible and had stumbled across a text.  The relevant aspect of her evidence proceeded as follows:

   Tree J: I will approach it this way.  I can’t remember if it was Dr [Y] or Mr [P] or both, but the suggestion is that if there were to be unsupervised time between [the child] and his Father, to put it bluntly, every time he came back you would be badgering him.

   The mother:No

   Tree J:You would be badgering [the child] with a view to trying to satisfy yourself whether or not there has been any abuse perpetrated on him.

   You understand that’s what is being said about you?

   The mother:May I answer?

   Tree J:   Yes by all means

   The mother:With this.

   In helping me to have clarity in life whatever situation it may be is the Bible OK

   Just by chance I have been reading it.  It has been reassuring me that.
   Do you not know that a little leaven, leaven is the whole love therefore purge out the old leaven then you may be a new love.  Since you truly aren’t leaven for indeed Christ our Passover will sacrifice for us therefore let us feast not with the old leaven nor with the new leaven of malice and wickedness and whatever is occurring.  We have to forgive and move on.

   Ok I have no intentions of re-hashing and re-hashing and I haven’t been re-hashing.  I am just going through the motions of this.

   I can move on and forgive.  It is not good holding on to something whatever it may that something may be destroying joy in our lives in the good of my life with [the child] and seeing his father.  I have to trust that the process in God is he’s watching over OK.  He’s the judge – he’s watching over and I trust that God who created [the child] has got the best intentions for [the child].  Cause I have handed over to the Lord in my belief that God you’ve got [the child] you love him and he’s going to be OK. 
   In answer to your question [the child] spending a bit more time with his father unsupervised, God’s got it OK.  And I also accept that I have to accept that.  If that be the ruling and I want to continue enjoying my life and being a good mother, getting support I want to continue to enjoy and love and happiness and all of that I have no intention in being interested in malice or unforgiveness but my support …

   Tree J:So would you be able to let go of any pre-occupation that you may have had that he is at risk of being abused by his father, if there is unsupervised time with him?

   Could you let it go – is what I want to know?

   The mother:I have to let it go because [the child] is 8 years old he knows what is right, he knows what is wrong.  He can speak up for himself.  He can speak up for himself.

   I believe I can let it go.  In forgiveness I can.  I can let things go with the grace of God I can and have.

   Tree J: And do you think that [the child] spending time unsupervised time with the father – perhaps a weekend who knows – do you think that, assuming of course there is no abuse that’s been perpetrated upon him by the father, do you think that that would be a good thing for [the child]?

   The mother:Yes

   Tree J:Assuming that you can let go, do you think that there would be any adverse effect for you to parent [the child]?

   The mother:No.   

3. It seems to me that this is a potentially optimistic development.  Obviously the mother’s religious faith is particularly important to her.  She appears to believe that the Bible text has given her an insight as to what she needs to do.  Certainly she would do well to heed that advice.

4. I conclude that in the short term, the risk that the mother will react poorly to unsupervised time is high, but am unable to form any conclusion about the medium and long term at this stage.  

5. Turning then to the fourth question, the factors which could influence the probable risk are two-fold.  The first is that any risk that the mother’s behaviour may adversely impact upon the relationship between the child and the father can be reduced by increasing the time which the child spends with the father.  He will be able to experience firsthand the benefits of that relationship, uninfluenced by any negativity that may be brought to bear by the mother or the maternal grandmother.  The second factor is the extent to which the mother reacts adversely to the child spending unsupervised time with the father.  That is an unknown, although it is predicted in some generality.  As I have indicated above, there is also uncertainty as to the extent to which any adverse reaction can be effectively managed by counselling.

6. As to the fifth question there are several prospective measures available that could minimise the prospect of the adverse risk eventuating.  The most obvious is to require the mother to undergo reportable counselling, something supported by Mr P.  Next would be to monitor the mother’s behaviour, and her response to both any unsupervised time between the child and the father, and any counselling which she receives, with a view to determining whether either is so poor as to require a revised assessment of the risk which she presents.  Other appropriate orders may include non-denigration of the father by the mother, and to afford the father some “make-up” time with the child to reinvigorate the relationship between them. 

7. Viewed in this context, any risk that the mother may present to the child as effecting psychological or emotional harm upon him could not be presently said to be unacceptable.  However there remains the prospect that, depending upon her reaction to the child spending unsupervised time with the father, the degree to which she presents as a risk to the child may change, and the regime of orders in place may need to be revisited.

S 60CC(3)(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

1. The child J is eight years old.  He has consistently expressed a desire to spend more time with the father.  That is a view which I am prepared to give weight to.  On occasions he has expressed a desire to live with the mother, but on other occasions he has expressed a desire to live with both parents.  It is unclear whether he means on a share cared basis or whether he would prefer re-unification.  He does not appear to have ever expressed a view that he wishes to live solely with the father, however it is likely that the possibility of doing so has never been explored with him or perhaps even occurred to him.  I am therefore not inclined to give much weight to his statements about with whom he would like to live.

S 60CC(3)(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)       

1. It is plain that the child enjoys a close relationship with his mother; that clearly appears from both of the Family Reports.  However by the same token, and notwithstanding the substantial disruption to the time that he has been able to spend with him, it is equally plain that the child still enjoys a good relationship with his father.  It is remarkable, given the initial absence of, and later restriction in, time which he has been able to spend with his father, that greater damage to the relationship has not been done.

2. It is also clear that the child enjoys good relationships with both sets of grandparents.  To the extent that the mother may have raised suggestions that there was some unsatisfactory aspect of the paternal grandparents’ interaction with the child, I wholly reject that.

3. Finally it appears as though in the past the child has enjoyed good relations with the paternal family more broadly, for instance, with his cousins.  They appear to be normal, healthy relationships.

S 60CC(3)(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

1. In the last two years, the reason why the father has been substantially precluded from being involved in the child’s life, and from spending time and communicating with him, is because of the mother’s conduct in stopping the child from spending time with him, or alternatively, because the time he has been able to spend with the child has been supervised.  The fact that the father has not had input in that time into decisions in relation to the child’s life, or been able to spend much time with or communicate with him, should not be given much significance.

S 60CC(3)(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

1. In broad terms, this consideration is of little weight here.  Although the mother does make some criticism of the father failing to pay child support, that is substantially because the mother and father agreed that they would “opt out” of the collection process.   In any event I note that the father has voluntarily paid one half of the child’s school fees.

S 60CC(3)(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

1. This is a consideration which looms particularly large in this case in relation to the suite of orders which should be made.

2. The child has only ever lived in a household of which his mother was a part.  For some periods of time, the child has lived solely with his mother.  Other than on occasions when he was spending time with the father, he has never lived with the father solely.  On the material before me, I cannot detect any indication of a wish on the part of the child to do so.  Likewise, on the material before me, I cannot detect any articulation of a wish by the child not to live at all with his mother.

3. Mr P was strongly of the view that if the child were to move from living with the mother, to living with the father, and only see the mother on some limited and perhaps supervised basis, that the short term impact on him would be considerable.  There is nothing surprising in that evidence and I accept it.

4. As I raised with counsel for the father during her submissions, essentially it is the father’s case that at least over the last two years, the child has been without the benefit of any real involvement of his father in his life.  Given my finding that the father does not present an unacceptable risk of harm to the child, that is unfortunate.  However what the father now wishes to do is essentially precisely the same, except that he wishes to restrict the child from spending anything other than supervised time with the mother.  Therefore this is not a case where one is simply contemplating restricting the time which a child spends time with a parent in the context of having an otherwise undisturbed relationship with each of them: here the child has had a substantially impaired relationship with the father, which is sought to be repaired and/or protected by substantially impairing his relationship with the mother. 

5. I am troubled that here the Court is dealing with a child who has not, in recent years, enjoyed a good, in the sense of substantial, relationship with his father, and the father is asking me to require the child to be deprived of any meaningful involvement from his mother for some indefinite period going forward.  I would need strong persuasion before imposing such a regime of orders upon the child.  Absent a finding of unacceptable risk posed by the mother, it is difficult to see what justification there could be for it in this case.

6. Moreover, here the likely impact of the supervision order would be to deprive the child of any meaningful time with either of his maternal grandparents.  It is plain that that relationship is important to him.

7. I can therefore only conclude that the likely effect of separating the child from his mother, and therefore also the maternal grandparents, will be substantial and adverse.  The prediction is that it will not be long lived, no doubt informed by the general notion that children generally adapt well to new circumstances.  I have little reason to doubt that here, but that of itself cannot justify dislocation which is otherwise unnecessary.

S 60CC(3)(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

1. This is not relevant here, other than in the event that the mother’s time with the child is to be supervised, there is a practical restriction as to the availability of institutional supervision to the extent of about two hours per fortnight.

S 60CC(3)(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

1. Dr Y’s opinion of the father was that “he would perfectly adequate and competent parent and has a lot to offer the child.”  No contrary view was expressed by any other witness.  I therefore conclude that the father has the capacity to provide for the emotional, intellectual and other needs of the child.

2. There are some matters of concern in relation to the mother however.  Dr Y’s opinion was as follows:

   If she remains even now narcotic-dependent, I do think that reflects on parenting at least to some degree, and I do think for her to effectively parent she needs close support – for example from her parents with whom I understand she is currently living.

   I noted that the consensus in documentation would suggest that the boy, [J], is functioning well, which would suggest that her parenting has at been at least adequate.

3. I identify four areas of concern in relation to the mother.  The first is that of narcotic dependence, which she concedes.  It seems to me that the best answer to this is that I have identified made by Dr Y namely, that although it no doubt does impact on her parenting to some degree, she nonetheless seems to have made a reasonable fist of it thus far.

4. The second matter is her capacity to provide for the educational needs for the child, as evidenced by his poor school attendance.  As previously addressed in these reasons, it appears as though at least in part, a substantial explanation for his lack of attendance lies in him being late for school in the morning on many occasions.  That is not a complete answer however.  It remains a matter of some concern.

5. The third matter is the mother’s apparent lack of insight into what both Dr T and Mr P have identified as the likely cause for the generation of the disclosures by the child, namely that they are linked to the mother’s anxiety condition.  The mother’s vehement conviction that the father has abused the child does not seem to admit of any possibility that her anxiety has played some part in either the generation of the disclosures, or her interpretation of what she hears and the process by which that is transformed into her belief.

6. Given that her own psychologist, Dr T, was even at the time of the first disclosures by the child in August 2011, concerned that they may be unreliable because of the mother’s anxiety state, it is surprising that counselling has not been able to at least give the mother some insight into the way in which her anxiety works on a practical level.  Logically one would have thought that such an insight would be one of the priorities for any psychological counselling of someone such as the mother.  In the event that I were to order that the mother undergo reportable counselling, I would expect that that would be one of the matters upon which the counsellor would from time to time report.

7. Suffice to say that at the moment the extent to which the mother lacks that insight means that there must be a commensurate concern as to her capacity to provide for the emotional needs of the child, in that her own conduct may be impacting adversely upon him.

8. The fourth matter is the capacity of the mother to promote a meaningful relationship between the child and the father.  Counsel for the father, and to perhaps a lesser extent, counsel for the Independent Children’s Lawyer, submitted that I ought find that the mother will not, going forward, promote any such relationship.  That may prove to be correct, however, given my findings that neither party presents an unacceptable risk of harm to the child, no party asks me to make final orders.  The time for finally assessing the mother’s capacity in this regard will therefore be some months away.

9. The following give me some hope that she can promote the relationship:

   (a)she was able to amicably agree – and to an extent implement – a shared care arrangement in 2010, after the first complaint to Police was resolved;

   (b)she appears to genuinely believe the child loves his father dearly, and needs to have a relationship with him;

   (c)she has expressed, via her Bible reading, some realisation of the need to start afresh;

   (d)she ought now be under no doubt that a wholly independent determination – after six days of trial – is to the effect that the father does not present a risk of sexual abuse to the child;

   (e)she ought be under no doubt that the consequences of her not promoting a relationship between the child and the father could be – from her perspective – calamitous.

10. Upon balance, the mother’s capacity to provide for the child’s needs is a serious matter, in that considerable doubt hangs over that capacity.

S 60CC(3)(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

1. This matter does not appear to be relevant in any meaningful way here.

S 60CC(3)(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

1. This matter is not relevant here.

S 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Once the abuse allegation is taken out of the mix, there is nothing on the part of the father’s attitude to the child which is the subject of criticism. 

2. On the other hand, the child’s lack of attendance at school is a legitimate criticism of the mother, and one which is of some concern.  The best that can be said about it is that thus far it does not appear to have had any adverse educational effect.  Whilst it is a matter that I give some weight to, it is inevitably a matter which is more a prospective concern than a retrospective one.  Even to that extent, it is difficult to see precisely what inference should be drawn from the mother’s failure to ensure adequate attendance at school by the child.  It cannot be said that it necessarily shows that she does not think that his education is important: indeed the preponderance of the material would suggest that she is well aware of the importance of education to the child.  Upon balance, whilst it is a matter of some significance, it is not a matter of determinative weight.

S 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. Although the mother makes assertions of violence, or at least threats of violence, on the part of the father, there does not appear to be any independent corroborative evidence of them.

2. I am of the view that the mother does tend to be histrionic in presentation and is an unreliable historian when it comes to her own perception of events that are of significance in her life.  I therefore have considerable doubt as to the accuracy of her stories in this regard.

3. On the other hand I have had the opportunity of also seeing the father in the witness box.  He presented as a generally credible witness, although on occasions somewhat nervous.  It can be conceded that giving evidence in this proceeding would have been a nervous experience for him.  On the whole where there is conflict between his evidence and the mother’s on this issue, I prefer the father’s.

S 60CC(3)(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

1. No Family Violence Order is applicable here.

S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. When the parties came before me on the first day of the trial, they all anticipated final orders would ensue from the trial.  By the conclusion of the trial, only the mother was pressing final orders, on the basis that the father was an unacceptable risk of abuse and therefore should only spend supervised time with the child in the future.

2. At the end of the trial both the father and the Independent Children’s Lawyer primarily sought interim orders that the child live with the father and spend supervised time with the mother.  That was because, as I understood the argument, the mother presented as an unacceptable risk of harm to the child, and it was necessary to gauge whether she would ever be able to rid herself of her belief as to the abuse having occurred, or at least modify her behaviour so that that belief no longer represented a risk of harm to the child, before final orders should be made.  As has been seen, I have reached the view that the mother does not represent an unacceptable risk of harm at the moment, and therefore the primary position of both the father the Independent Children’s Lawyer will not be reflected in the orders I propose to make.

3. On the other hand, there is abundant evidence that the mother will have some form of an adverse reaction to, as I propose to order, the child spending time with the father on an unsupervised basis.

4. Whilst I am not yet convinced that the mother is incapable of modifying her behaviour so that she is able to foster and facilitate a relationship between the child and the father, it is impossible to predict what may transpire during the initial few months after the child first commences to spend unsupervised time with his father.  Therefore it seems to me that, in the same way as both the father and the Independent Children’s Lawyer perceived merit in monitoring the mother’s behaviour for some interim period on the primary set of orders for which they contended, that same merit attaches to there being a period after which the Court can review the mother’s reaction to the child spending unsupervised time with the father.

5. Inevitably that means that the trial of this matter will not finally conclude until some period of the operation of those interim orders can be had.  That is unfortunate in that it means there is the prospect of there being some further aspect to this litigation, however in my view that does not outweigh the benefit arising from the opportunity for the Court to receive reports of the mother’s behaviour in that interim period.

S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. I do not identify any other fact or circumstance that is relevant here.

THE CHILD’S BEST INTERESTS IN THE LONG TERM

1. Based on the material presently before me, I weigh the s 60CC(3) factors to which I have adverted above as indicating that, upon the ultimate conclusion of this trial, if it presents as reasonably practicable to so order, that it will likely be in the child’s best interests for him to have both parents involved in all aspects of his life, and to either spend equal time with them or alternatively live with one parent and spend substantial and significant time with the other.  The difficulty with equal shared parental responsibility is that it appears as though the parties have poor communication which may be beyond the point of repair.  Mr P is of the view that the parents present too stark a contrast in their lives for there to be joint parenting.  Perhaps that will prove to be the case, however, it remains to be seen what if any changes the parties can make in the period of the interim orders which I propose to make.

2. If that does prove impossible, then the regime of orders most likely to be in the child’s best interests will be one which sees him reside with one of the parents, who will retain sole parental responsibility, but spend substantial and significant time with the other.

3. I am setting this out in some detail because it seems to me given that all parties propose interim orders in the event that there was no finding that either parent presented as an unacceptable risk, that the interim orders here need to be directed towards maximising the likelihood of either of those commendable alternatives proving workable.  The “wildcard” in all of this is the extent to which the mother is able to modify her concerns and behaviours arising out of her belief that the father abused the child.  In a sense, the interim regime is intended to be rehabilitative, or at least intended to permit rehabilitation in a protective environment.  As the parties themselves identified, it is simply not possible, at the moment, to contemplate making final orders, as there are simply too many unpredictables and variables at play.

THE CHILD’S BEST INTEREST IN THE INTERIM

Who should the child live with?

1. The major short term concern is to facilitate the child’s relationship with his father.  The other concerns are firstly, to do so in a way which minimises the adverse reaction to that by the mother, but gives an opportunity for the Court to monitor the mother’s reaction to that process, and secondly, minimises the risk of any harm to the child.                

2. In my view, over the next six months, the minimisation of substantial dislocation in the child’s life substantially outweighs the risk that, by some undetectable means in that period, and notwithstanding spending unsupervised time with the father, the mother will further destroy the child’s relationship with his father.  It therefore follows that providing adequate monitoring can be had, it is in the child’s best interests to remain living with the mother on an interim basis.

Who should have parental responsibility?

1. The parties are not yet, and may never be at a stage where they could be expected to make joint decisions in relation to the child.  As has been seen, at this stage I do not propose to change primary care of the child from the mother to the father.  In those circumstances, the only feasible option is to vest sole parental responsibility with the mother.

What time should the childspend with the father?

1. There is no reason to maintain a requirement of supervision of the child’s time with the father.  The only question is how much time should he spend with him, and in what circumstances.

2. The father indicated great flexibility in this respect.  Understandably he wants to spend as much time as soon as possible with the child.  He even went so far as to propose the prospect of equal time within a matter of weeks (albeit, in fairness, from the perspective that the child would live with him).

3. Equal time is not yet feasible, and may never be.  The parties have recently concluded a bitter six day trial, in which each alleged the other had, in effect, forfeited the right to spend anything other than meagre, supervised time with their only child.  Even without that factor, their communication has been poor.  The child has never lived with the father, and has not spent overnights in his care for nearly two years.  Moreover, one of my concerns is to effect change at a rate that will enable the mother to cope, and not at a speed that could overwhelm her.

4. The Independent Children’s Lawyer proposed an alternative regime of orders, alternative in the sense that they were predicated on a factual basis not contended for by the Independent Children’s Lawyer, namely that the mother did not present an unacceptable risk to the child.  Those orders were, in substance, agreeable to the mother (albeit only if no unacceptable risk was found in the father).

5. The Independent Children’s Lawyer’s orders see:

   ·A period of “make up” day-time weekend time between the child and the father for three weeks; which progresses to

   ·Three alternate weekends of Friday to Sunday time (ie two overnight stays) with the father; which progresses to

   ·Alternate weekends from Friday to Monday, and alternate weeks of school holidays.

6. In my view such a regime balances the considerations in play here, and is in the child’s best interests, and I will so order.

Communication

1. This appears uncontroversial; the father should be able to Skype with the child two nights per week for an hour, and likewise for the mother in any week the child is not in her care.

Other matters

1. The mother’s reaction to, and coping with, the regime of these orders is a critical matter.  It is agreed she will need therapeutic psychological counselling – and that may need to be intensive.  It needs to be reportable, and in my view although not sought by the Independent Children’s Lawyer, some reporting needs to be undertaken during the period of the interim orders operation, to monitor any increase in risk which the mother may pose.  That reporting should be, in the first instance, to the Independent Children’s Lawyer.

2. The Independent Children’s Lawyer also seeks orders restraining the mother from providing the child’s school, carers, and friends’ parents, with any detail of her allegations of abuse.  She also seeks orders restraining the mother from taking the child to assessments, examinations, counselling, treatment on interviews of any kind relating to allegations of sexual or physical abuse of the child except on notice, with liberty to apply in that event.  A further restraint is directed to her discussing the allegations with the child.  These are all appropriate orders, as is the mutual non-denigration order.

3. Finally the Independent Children’s Lawyer seeks orders for the child’s counselling in relation to the transition effected by these orders, including publication of those orders and reasons to his school.  They are appropriate and will be made.

CONCLUSION

1. For these reasons there will be orders in terms of the Independent Children’s Lawyer’s alternative proposal, save that:

   (a)there will not be an order in terms of para 15;

   (b)the timetable in orders 4(a), (b) and (c) will commence on the next weekend after these order and reasons are published to the parties; and

   (c)order 7(a) will be supplemented with a notation to the effect that, provided sufficient funding is available to do so, the Court additionally requests to the Independent Children’s Lawyer to discuss the mother’s progress with her mental health practitioners at least every two months, during the currency of these orders.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 4 October 2013.

Associate: 

Date:  4 October 2013