L and W - [2004] FMCAfam 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & W

[2004] FMCAfam 577

FAMILY LAW – Child aged three – contact – allegations of sexual abuse – unacceptable risk – grounds for belief of allegations – effect on child of mother’s anxiety – best interests of child.

Family Law Act 1975 (Cth), ss.60B; 65E; 68F

M v M (1988) 166 CLR 69
Re Andrew (1996) 20 Fam LR 538
In the Marriage of Sedgley (1995) 19 Fam LR 363
In the Marriage of Russell & Close- 25/06/1993 FamCt Unreported
B v B (1993) 16 Fam LR 353
Marra and Marra Appeal SA 44 of 1992, 8 September 1993, Unreported
N and S (1995) 19 FLR 1837
In the Marriage of Sampson (1997) FLC 90-253

Applicant:

Respondent:

File No:

PAM 5167 of 2003

Delivered on:

28 October 2004

Delivered at:

Parramatta

Hearing dates:

9 September & 8 October 2004

Judgment of:

Emmett FM

REPRESENTATION

Counsel for the Applicant:

Mr Cairns

Counsel for the Respondent:

Ms Druitt

Solicitors for the Respondent:

Ms Grew, Harman & Co

Child’s Representative:

Ms Escobar, Legal Aid Commission

ORDERS

That the child, LL (“the Child”), reside with the Respondent mother.
That each party have the day to day responsibility for the welfare, care and development of the Child when the Child is in their care.
That the parties have joint responsibility for the long term care, welfare and development of the Child.
That the Applicant father have contact with the Child as follows:
(a)Unless otherwise agreed, for 12 months from the date of these Orders, each Saturday or Sunday, as agreed between the parties between the hours of 10am and 6pm to be supervised either by Ms R, FE, PL, or such other persons as agreed by the parties. In the event that there is no agreement as to which day of the weekend contact is to occur then it will occur on Sunday.
(b)One weekend four times a year commencing during the next school holiday period from 10am Saturday to 4pm Sunday to take place at the home of PL and on condition PL undertake that she will be present and supervise the contact between the Applicant father and the Child at all times and will ensure that the Child is safe and protected whilst under her supervision. Failing agreement between the parties as to which weekends, PL shall nominate the weekends after a reasonable opportunity to the parties to provide her with their preferred dates.
(c)From the first weekend after 12 months from the date of these Orders, or such lesser period as the parties may agree, contact to be each alternate weekend from 10am Saturday to 6pm Sunday.
(d)From 5pm on the Thursday prior to the Easter weekend until 9pm on the following Tuesday in 2006 and in each even numbered year thereafter.
(e)From 5pm Christmas Eve until 6pm New Years Day in 2005 and in each odd numbered year thereafter.
(f)For 2 hours on Christmas Day 2004 between 9am and 11am unless otherwise agreed to be supervised in accordance with Order 4(a).
(g)Unless otherwise agreed for 2 hours on the Child’s birthday being Friday 10 June 2005 between 4pm and 6pm and to be supervised in accordance with Order 4(a).
(h)From 2006, 1 week in each of the school holiday periods as agreed between the parties, otherwise the 1^st week of each school holiday period from 10am the day following the last school day of term to 6pm 7 days thereafter.
(i)Telephone contact each Tuesday and Thursday between 5.45pm and 6.15pm, unless otherwise agreed.
(j)Such other contact as agreed by the parties.
For the purposes of contact the Applicant father is to collect the Child from the Respondent mother’s residence at the commencement of contact and the Respondent mother shall collect the Child at the end of contact unless Mrs R is supervising contact in which case she will transport the Child to and from contact.
Unless otherwise agreed, in respect of Order 3(b), the Respondent mother will deliver the Child to the home of PL by 10am on Saturday and will collect the Child from the home of PL at 4pm on Sunday.
In respect of Order 3(c), (d), (e), (f), (g) and (h) the Applicant father will collect the Child from the residence of the Respondent mother at the commencement of contact and deliver the Child back to the Respondent mother’s residence at the end of contact, unless otherwise agreed.
The Respondent mother shall ensure that the Child attends upon a child and family therapist as recommended by Dr Quadrio or the Katoomba Community Health Service and shall ensure that the Child completes any course of treatment recommended by that therapist and bear the costs equally of any such treatment.
That the Respondent mother and the Applicant father shall attend upon the Child’s psychiatrist or therapist referred to above as directed by that therapist and shall comply with any direction, advice or recommendations of such treatment therapist in respect of the Child.
That the Respondent mother shall attend for counselling as directed by Dr Quadrio or the Katoomba Community Health Service in seeking to address dealing with her anxieties to ensure that any detrimental impact upon the Child is minimised to the greatest extent possible.
Each party will notify the other forthwith in the event of any illness or medical condition or emergency suffered by the Child whilst in their care with the name and details of any medical practitioner consulted in respect of the Child.
That the Respondent mother shall provide to the Applicant father no less than 30 days prior notice of any decision to relocate the Child in writing. Such notice shall include the Child’s address and telephone contact number.
The parties will consult and endeavour to agree on any pre school or school to be attended by the Child or any extra curricular activity to be undertaken by the Child and have regard to any wishes expressed by the Child in respect of particular interests he may wish to pursue.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5167 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The issue for determination between the parties is whether the son of the relationship, LL (“the Child”), should have unsupervised access with his Applicant father, and otherwise what amount of contact is appropriate.

Relevant facts

The parties cohabited from about October/November 2000 and separated in December 2001.
The Child LL resides with the Respondent mother and the Applicant father has always paid Child support.
The Applicant father concedes that it is in the best interests of the Child to continue to reside with the Respondent mother and the Respondent mother concedes that it is in the best interests of the Child to have a relationship with the Applicant father.
However, the Respondent mother asserts that until he is 5 years old that contact should be supervised due to her belief that there has been inappropriate sexual behaviour by the Applicant father when in the company of the Child, thereby placing the Child at risk.
The inappropriate sexual behaviour is essentially alleged by the Respondent mother to have occurred in three incidents, which I shall describe separately as “the Braidwood Incident”, “the Toilet Training Incident” and “the Oval Incident”. The Respondent mother alleges that these incidents together with the history of her relationship with Applicant father lead her to be concerned that other inappropriate sexual conduct by the Applicant father may have occurred with the Child and that the Child is therefore at risk with the Applicant father if the Applicant father was to have unsupervised contact.

The Braidwood Incident

In March 2002 when the parties and the Child were staying at the home of the paternal grandfather, the Respondent mother heard a noise at about 5am. When she entered the room she saw the Child being held by the Applicant father on the Applicant father’s groin and the Applicant father was naked. The Applicant father refutes that allegation saying he was holding the Child on his lap and that the Child was clothed. He agrees that when the Respondent mother came into the room she said, “What are you doing” and took the Child from his arms and back into her room. The Applicant father said that he was feeding the baby with the bottle whereas the Respondent mother said that he reached over to get the bottle when she entered the room.

The Toilet Training Incident

In November 2002 the Respondent mother alleges that the Applicant father told her that he took his penis out and showed it to the Child and let him touch it. The Applicant father denies that version and says that on one occasion in the context of toilet training he was demonstrating to the Child how to urinate and the Child touched his penis through the urine stream.
The Applicant father said that he told the Respondent mother of this incident about a week later when the Applicant father was sitting down and the Child ran to the Applicant father and took his hands to the Applicant father’s fly area. The Applicant father said that when the Respondent mother asked what that was about that he then told her of the Toilet Training Incident.
Both parties agree that the Respondent mother then told him that he was not to display his penis to the Child and the Applicant father answered in an offhand fashion, “Why not? You get your breasts out.”
Both parties also agree that they had discussed and decided prior to the Toilet Training Incident that the Applicant father would assist in the Child’s toilet training although there was no evidence as to how this was to occur.

The Oval Incident

On 13 November 2003 when the Child was nearly 2½ years old, the Respondent mother alleges that the Child said to her “We went to the clubhouse and had a yucky bath with my penis and Dada held the pole.” The Respondent mother said that she asked the Child who was there and he answered “Just Dada,” that she said “Who’s penis” and he said, “N” (the name by which the Child refers to himself), the Respondent mother asked, “how did it feel” and the Child grimaced and said, “It didn’t feel.” Thereafter the Respondent mother asked no further questions.
The Applicant father denies this incident and claims that contact on that day occurred in the usual way under the supervision of TA. The Applicant father said that they had all gone to the oval where the Applicant father works and that the Child had helped the Applicant father hose the lawn. A photograph was tendered by the Applicant father taken that day showing LL holding the hose and watering the lawn.
FE was also a contact supervisor at the request of the Respondent mother. FE deposed in her Affidavit sworn 31 August 2004, that on 18 December 2002 the Respondent mother telephoned her. To the best of FE recollection the Respondent mother asked if she had observed any inappropriate behaviour from the Applicant father towards the Child during any contact she had supervised. FE said the Respondent mother then told her that the Child had told the Respondent mother that he had held Dada’s big hose. FE said that she confirmed with the Respondent mother that during her periods of supervision she had never observed inappropriate behaviour by the Applicant father towards the Child and that she had never had cause for concern about the Child’s welfare.
In respect of the evidence of FE as to what the Respondent mother told her was said by the Child about dada’s big hose, I note the effluxion of time between that incident and the date of FE affidavit together with the fact that FE was not the supervisor on that day.
Mr TA who was the supervisor on that day gave evidence that he was with the Applicant father the whole time, that there was no pole at the oval nor did the Child have a bath but that the Child did hose the turf at the oval. In cross-examination by the Child’s Representative when the allegation of what the Child told the Respondent mother was put to Mr TA, he responded that the Respondent mother’s version was the latest story he had heard and when asked what he had heard before he said “We went to Dada’s work and played with Dada’s big hose.”
There was no further exploration how he became aware of the allegations. However I note that Mr TA volunteered the allegation of the Child in the terms we went to Dada’s work and we played with Dada’s big hose, those words being almost identical to those used by FE in her affidavit. Both FE and TA gave evidence on behalf of the Applicant father.
The Respondent mother in evidence claimed that TA was an unsuitable supervisor having regard to her belief that some incident involving a yucky bath and the Child’s penis took place on that day and that Mr TA was either an inadequate supervisor or a knowing participant. The latter was not put to Mr TA in cross-examination and accordingly I reject that implication completely. There was nothing in Mr TA’s evidence either in chief or in cross-examination that leads me to find he was anything other than endeavouring to provide his evidence accurately and to the best of his recollection.
In paragraph 9 of her Affidavit the Respondent mother deposes to a further incident when she telephoned the Applicant father and said that when she was changing the Child he grabbed her pants and said “pepee”, which is the term he uses for his penis. She said she asked the Applicant father if he knew why the Child would act that way and whether he was alone with the Child in the change room during supervised contact to which she said the Applicant father said “yes.”

I note this language by the Child is not as sophisticated as the allegation by the Respondent mother as to what was said by the Child after the Oval Incident.
These incidents occurred in the background of an application in December 2002 by the Respondent mother for apprehended violence orders against the Applicant father. That application was subsequently dismissed on 18 February 2003 by Katoomba Local Court.
That application arose out of an incident alleged by the Respondent mother to have occurred on 18 December 2002. She claimed the Applicant father pushed her with the side of his body. The Respondent mother in her statement to police dated 17 December 2004 said the argument related to a phone bill.
The Respondent mother further complains in the statement of an earlier incident, in which she was pushed by the Applicant father whilst holding the Child and the Applicant father was yelling at her. She further states that there were a number of times, when the relationship was very poor, that the Applicant father would talk down to her, tell her what to do and raise his voice sometimes in front of the Child. She said that she felt the Applicant father did this on purpose to intimidate her because he knows that she does not believe that sort of behaviour is appropriate behaviour in front of the Child.
Between March 2003 and October 2003 the Applicant father had contact with the Child although the Respondent mother claims that the Child was extremely distressed before contact and didn’t want to separate from the Respondent mother. The Respondent mother states in paragraph 48 of her Affidavit sworn 23 August 2004 that the Child would sob on each occasion she left him with the Applicant father and the supervisor.
The Applicant father did acknowledge in cross-examination that he had hit his wife in May 2003 first with an open hand then with a pillow and that he was ashamed.
The Applicant father also agreed there was an incident in February 2002 after a garage sale where he yelled and waved his arms around at the Respondent mother in the presence of the maternal grandmother. The Applicant father agreed that the Respondent mother would have been fearful and intimidated by his behaviour on that day.
The Applicant father also agreed that about 13 December 2001 that he had pushed his way past the Respondent mother to make his way to the Child’s bedroom. The Applicant father also agreed that he pushed the Respondent mother into the chair twice on 13 December 2001. The Applicant father denied in evidence that the Child was in his arms although he conceded that a transcript of the AVO proceedings showed that at that time he gave evidence that he pushed the Respondent mother whilst the Child was in his arms.
The Applicant father agreed that on each of these occasions he had consumed some alcohol although he says that his regular drinking habits are simply a beer or so most days after work. The Applicant father denied, however, that he ever shouted or yelled at the baby.
In November 2003 the Respondent mother stopped all contact and the parties entered into an agreement in January 2004 that the contact would be supervised.

Expert’s Report

Associate Professor Carolyn Quadrio, consultant psychiatrist, prepared an expert’s report dated 7 September 2004. Neither party sought to cross-examine Dr Quadrio. Dr Quadrio sought to address the following in accordance with her instructions:
a)Nature of the relationship of LL with each of his parents and all other relevant persons. Dr Quadrio found that LL had strong attachments to each of his parents and his maternal grandmother.
b)Capacity of each parent to provide for the needs of LL including emotional and intellectual. Dr Quadrio stated that both parents and the maternal grandmother are capable of providing well for LL in terms of physical and intellectual needs. However, she noted that the Respondent mother and to some extent the maternal grandmother conveyed to the Child a sense of danger that creates anxiety and to this extent they do not provide as well for his emotional stability. However, Dr Quadrio stated it is clear that these attitudes of the Respondent mother and maternal grandmother arise from their sincere belief that the Child is at risk. Dr Quadrio said that the Applicant father was very focused on the Child, attentive and responsive to him and that the Child was happy to be with him and inconsolable when it came time for him to say goodbye.
c)The need to protect the Child from psychological or physical harm that may be caused by or through the exercise of contact with the Applicant father and any other person and any risk posed to the Child by contact with the Applicant father. Dr Quadrio stated that if the Respondent mother’s account of events is accepted then the Child needs protection from his Applicant father because there is some level of sexual risk. Dr Quadrio stated that the Respondent mother requires some professional assistance to deal with her anxious and overprotective style of parenting as that attitude promotes an anxious attachment in the Child. The doctor goes on to state:
“… it is impossible for me to exclude a risk of sexual harm. The incidents of specific concern that are reported by the Respondent mother, if they are taken as valid, must be regarded as indicating some risk. There is no clinical evidence to support an experience of sexual abuse but there is certainly good evidence that the Child is quite disturbed. This could be accounted for also by an anxious attachment.”
d)The attitude to the Child and to the responsibilities of parenthood demonstrated by each parent. Dr Quadrio states that each parent is responsible and devoted.
e)Whether either parent has any psychological impairment or psychiatric condition that will affect their ability or capacity to parent the Child and the relevance of same on the issue as to whether contact is to be exercised and if so what structures or constraints relate to such contact. Dr Quadrio opines that both the Respondent mother and the maternal grandmother are extremely sensitive to any behaviour that can be construed in a negative way and they regard the Applicant father as a dangerous person. The doctor notes, however, that the examples provided by the Respondent mother and the maternal grandmother giving rise to this attitude do not substantiate difficulties that seem serious enough to account for the difficulties they have developed nor for the severity of the Child’s disturbance. The doctor concludes that the Respondent mother requires some professional assistance to deal with her anxious and overprotective style of parenting which promotes an anxious attachment in the Child. However, the doctor does not exclude the possibility that the Respondent mother has some grounds for concern.
f)The need to protect the Child from psychological harm if any by the imposition of supervised contact. The doctor concludes that the Respondent mother is not appropriate to supervise contact given her high level of anxiety as this would only convey to the Child a sense of danger.
g)Any other matter. The doctor concludes that it is impossible to exclude the risk of sexual harm and for that reason recommends that contact should continue on a regular basis for daytime only with supervision until the Child is aged five. Thereafter contact and supervision would be graduated to provide that, by the time the Child is seven, he be able to spend a weekend and have overnight contact with his Applicant father. The doctor further recommends that the Child needs further assessment and management and should be referred to a Child or family psychiatrist. She noted that it would be necessary for the parents to participate in his treatment although not necessarily attending at the same time.

Submissions

The Respondent mother demonstrated some insight into the level of her anxiety and conceded that she may well be overprotective but that it springs from her belief that the Child is at risk were the Child to have unsupervised contact with the Applicant father.
The Respondent mother claims particularly that she has a current concern of a serious risk of sexual harm to the Child, that the Applicant father has demonstrated an inability in the past to control his temper and that this would be frightening for a 3 year old, that the Applicant father when he drinks becomes more difficult and that the Respondent mother does not believe the Applicant father always puts the Child’s best interests first.
The Respondent mother gives 2 examples of a failure by the Applicant father to put the Child’s interests before his own. The first is the insistence of the Applicant father that the Child continue with swimming lessons despite the fact that the Child does not enjoy them and sobs for some time prior to each lesson. The second is that the Applicant father insisted on telephone contact despite the fact that she would tell the Applicant father that the Child did not want to speak and would run to his bedroom crying.
Her concern is that the Child may develop a negative association with the Applicant father and she is conscious of that not being ultimately in the Child’s best interests. However, she is very concerned to ensure his safety until he is old enough to make informed judgements as to his own welfare.
The Child’s Representative submitted that the authorities demonstrate that it is not necessary for a court to find that sexual abuse occurred in order for there to be some element of risk or potential harm to the Child.
In M v M (1988) 166 CLR 69, the High Court concluded that, if an allegation of sexual abuse has not been made out, it does not follow that that conclusion determines the wider issue of what is in the Child’s best interests. In resolving the wider issue, the court must determine whether, on the evidence there is a risk of sexual abuse occurring if contact occurred and the magnitude of that risk.
It is important to bear in mind that in the present case that the Respondent mother is not submitting that there be no contact at all but that contact be supervised and be during the day only.
The Court in M v M (supra) upheld the Trial Judge’s conclusion that an unacceptable risk existed where his honour was unable to exclude the possibility that the Applicant father had abused the Child as alleged.
The Child’s Representative submitted that the court cannot discount that sexual abuse may have occurred in this particular case in that inappropriate sexual touching may have occurred.
The Child’s Representative submitted that the Respondent mother’s level of anxiety was genuinely held even though the evidence itself may not support a finding of sexual abuse.
The Child Representative referred to the context of the Child’s anxiety in respect of the Applicant father’s conduct as involving an inability of the Applicant father to control his temper, his drinking and his inability to put the Child’s best interests above his own.
The Child’s Representative submitted that the Respondent mother’s anxiety was genuine, that the Child was at risk at this age in the care of the Applicant father.
The Child’s Representative submitted that, in accordance with the authorities, if the Court finds that the Respondent mother’s anxiety is genuine and not irrational or groundless, then it is a factor that must be taken into account in assessing what is in the best interests of the Child.
The Full Court in Re Andrew cited with approval an earlier unreported decision of the Full Court of the Family Court in In the Marriage of Russell and Close 25/06/1993 FamCt, unreported, that case stated that a subjective test is to be employed in taking into account the belief of the primary caregiver of abuse by the contact parent and the effect of that belief in the primary caregiver and the consequent harm of that belief to the Child. However, the Court identified that it must be shown that such belief on the part of the primary caregiver is genuinely held unless on the whole of the evidence that belief is entirely irrational and baseless. The Court referred to B v B (1993) 16 Fam LR 353 as further supporting the notion that anxiety about a Child’s exposure to potential harm by the primary caregiver is likely to impact adversely on that parent’s ability to care for the Child.
The Child’s Representative referred to the case of Re Andrew (1996) 20 Fam LR 538, in which the Full Court held that in considering what is in the best interests of the Child regard must be had to the effect of contact not only on the Child but also on the primary caregiver, in this case the Respondent mother.
In the case of in the Marriage of Sedgley (1995) 19 Fam LR 363 the Full Court of the Family Court stated at page 371:
“whilst the welfare of the Child might requires some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the Child”
That Court went on to say that a decision to cut the relationship between a parent and Child is one which ordinarily a court would only take with considerable hesitation.
Again, as stated earlier, I note that the Respondent mother does not suggest that all contact be severed with the Applicant father and readily recognises the importance to the Child of a relationship with the Applicant father.
In Marra v Marra Appeal SA 44 of 1992, 8 September 1993, (unreported) the Full Court of the Family Court referred to Russell v Close and the now well-established principle that genuinely well held beliefs or concerns of the custodial parents as to access and the circumstances of access are relevant consideration in deciding what access to order. The Full Court went on to say,
“however the relevance of that is not that it gives to the custodian a veto. The relevance is to the extent that it may have an adverse effect on the welfare of the Child. That is, its relevance is that the concerns of the custodian may affect his or her capacity as a custodian, and thus have an effect on the welfare of the Child. Those concerns, although they should be acknowledged, may have little weight where the parent’s caregiving capacity will not be discernibly impaired.”
In N and S (1995) 19 FLR 1837 Kaye and Hilton JJ cited with approval the judgment of Fogarty J in the case of In the Marriage of Sampson (1997) FLC 90-253 where His Honour stated:
“that the fact that the custodial parent is opposed to access or does not desire the other party to have access to the Child is in itself irrelevant. The matter has to be determined having regard to the best interests of the Child, not the wishes as such of the custodial parent. That is, her wishes are irrelevant but her reasons must be given proper weight…the matter is to be determined having regard to the welfare of the Child not by considerations of sympathy for the innocent non-custodial parent or feelings of frustration or annoyance with the custodial parent. In such case the question of the future custody of the Child again must be determined only upon a test of the welfare of the Child. It ought not be determined by unconscious feelings of punishing a custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party. In cases where the welfare of the Child dictates that the Child should remain in the custody of the former custodian that must be the result even though the consequence may be that the non-custodial party, innocent of any wrongdoing, is severed for at least the time from continued connection with his or her Child. In cases where the attitude of the custodial parent is genuinely but unreasonably held, the relevance, and in my view the only relevance of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the Child.”

Findings

In this case both parents gave evidence and were cross-examined relatively extensively. Neither party was demonstrated to be wholly unreliable. Both attempted to give their evidence in a frank and forthright manner and both conceded conduct on the part of themselves that did not necessarily go to their credit.
Having observed the Respondent mother give evidence and be cross-examined I am satisfied that the Respondent mother is a highly anxious person but that she holds a genuine belief that the Child at this age is at risk of sexually inappropriate behaviour whilst in the company of the Applicant father.
The Respondent mother conceded that her anxiety is readily addressed by contact between the Child and the Applicant father being supervised and being for daytime only. The Respondent mother further concedes that there are appropriate members within the Applicant father’s family and other friends who would be acceptable supervisors in her view.
The Respondent mother also conceded her anxiety and over protectiveness but linked them to her genuine concern for the Child’s safety.
In respect of the Oval Incident, I accept that the Child said something to the Respondent mother that caused her some concern after the Oval Incident, albeit it may have been misunderstood and misinterpreted by the Respondent mother particularly where the Child may have referred to his Applicant father’s big hose, a yucky bath or the Child’s penis.
However, there is corroborative evidence of the Applicant father’s denial that anything untoward happened with the Child that day, being the photograph of the Child with a big hose and Mr Anderson’s evidence. There is also Ms Ellis’s evidence that she never observed any untoward behaviour by the Applicant father in respect of any contact she supervised.
I accept the evidence of Mr Anderson that he did not observe any untoward behaviour of the Applicant father to the Child and that his supervision was all but constant.
Accordingly, that episode of itself would not lead me to find that the Child would be enduring an unacceptable risk of being exposed to sexually inappropriate conduct by the Applicant father if unsupervised contact with the Applicant father was to occur.
In respect of the Braidwood Incident, I accept that the way in which the Applicant father was holding the Child caused the Respondent mother some concern, even if from the Applicant father’s perspective it was not sinister. It obviously would have added to the Respondent mother’s anxiety if it be the fact that the Applicant father was not at the time feeding the Child but holding him on his groin and only reached for the bottle when the Respondent mother came in. On the other hand, the Applicant father gave evidence that he was in fact feeding the Child and the Child was on his lap. I note that the Macquarie Dictionary definition of groin includes “lap.” Perhaps he had simply put the bottle down and briefly during the time he was feeding him. I do not know and cannot make a conclusive finding on the evidence before me save to the genuineness of the concern that I find the Respondent mother had about what she believed she saw. I do note however, that she made no complaint to the Applicant father at the time about how or where he was holding the Child.
However, again, that episode of itself would not lead me to find that the Child would be enduring an unacceptable risk of being exposed to sexually inappropriate conduct by the Applicant father if unsupervised contact with the Applicant father was to occur
In respect of the Toilet Training Incident, I accept the Respondent mother’s evidence as to her belief that the Applicant father volunteered to her that he had taken out his penis and let the Child touch it. However, in the context of the general agreement as to toilet training I accept the evidence of the Applicant father that he was demonstrating urination to the Child when the Child put his hand through the Applicant father’s urine stream and touched his Applicant father’s penis. Whilst the Child reaching for his Applicant father’s fly area is curious I do note that it was in the context of the time during which the Child was being toilet trained and was therefore probably very aware of his genitals and their use. I further note the Respondent mother’s agreement that the Applicant father be primarily responsible for toilet training the Child.
However, that episode of itself would not lead me to find that the Child would be enduring an unacceptable risk of being exposed to sexually inappropriate conduct by the Applicant father if unsupervised contact with the Applicant father was to occur.
The Respondent mother’s beliefs appear to have been garnered by her experience with the Applicant father, during their period of cohabitation, of violent episodes from time to time.
I place little weight on the Respondent mother’s examples of incidents said to support her allegation that the Applicant father does not put the Child’s best interest before his own because he insists on swimming lessons and on telephone contact. The Child is certainly of an age where one would think it critical for him to learn at least to be able to survive in the water and I accept it is common for many Children of that age not to enjoy the experience of swimming lessons.
In relation to the Applicant father’s insistence of telephone contact with the Child despite the Child’s lack of cooperation with telephone contact, I accept that there is an anxiety created in the Child from being with the Respondent mother in circumstances where she is interacting with the Applicant father. Accordingly, given her high level of anxiety and over protectiveness, it would not necessarily be unreasonable for the Applicant father to seek to insist on his right of telephone contact in the hope of ultimately being able to break down that level of anxiety in the Child and the Respondent mother.
However, whilst each of these incidents in isolation may be capable of innocent explanation, given the Respondent mother’s positive attitude to the Applicant father’s desirability to have a relationship with his son, as demonstrated by the contact and communication that has occurred between the parties since separation and her proposals for future contact (albeit to be supervised), I do give weight to the compilation of the Respondent mother’s concerns as being sufficiently justifiable as to be not groundless, baseless or irrational. Were the Respondent mother proposing no contact at all I would have little difficulty in finding on the evidence before me that her concerns were groundless.
The balancing exercise in a case such as this, as to what is in the best interests of the Child, involves considering:
a)whether there is any risk to the Child arising out of any inappropriate sexual conduct of the Applicant father and,
b)if so, whether that risk is unacceptable;
c)the detriment to the Child arising from the continued anxiety of the Respondent mother if unsupervised contact was to occur and the detriment to the Child if only supervised contact was to occur.

Is the child at risk

The Child’s Representative submitted that there is a risk to the Child, which the Court cannot discount in that inappropriate sexual touching may have occurred. Neither the Child’s Representative nor the Respondent mother elaborated on what this might mean beyond the specified allegations. I note that there was no medical evidence whatsoever to corroborate any interference with the Child.
In the circumstances, I have had regard to the very young age of the Child and the Child’s relatively limited vocabulary, communication ability and awareness of what may be appropriate behaviour and what may be inappropriate behaviour. However, whilst I am far from satisfied that any inappropriate conduct by the Applicant father in respect of the Child has occurred at all, I cannot find there is no risk at all to the Child.

Is the risk unacceptable

I must now consider, whether that risk is unacceptable.
Once again, I have regard to the very young age of the Child and the vulnerability of that age, which urges caution on the assessment of risk that may be somewhat diminished in an older, more mature and articulate Child. I also have regard to the findings of Dr Quadrio that the Child is somewhat disturbed and that leads me to find an even greater vulnerability in the Child.
It is very difficult to find any risk to a 3-year-old Child acceptable. However, I remain very conscious of the ease with which concerns such as those expressed by the Respondent mother can devolve into allegations that the Child is at an unacceptable level of risk. It is very sad that an Applicant father, who is in all other respects a devoted and loving parent and with whom, according to Dr Quadrio, the Child enjoys a loving and easy relationship, can have his freedom of parenthood curtailed by unproven but concerning allegations, the existence of which nevertheless makes it impossible for the Court to discount any risk at all.
Nevertheless, whilst one can never discount with certainty the risk that sexual abuse may have occurred by way of inappropriate sexual touching, on the evidence before me, for the reasons above, I am not satisfied that an unacceptable risk has been proved to exist.

The respondent mother’s anxiety

In relation to the Respondent mother’s anxiety, the authorities say that, having found the Respondent mother’s belief as to expressed concerns to be genuine, unless I was to be satisfied that the Respondent mother’s belief is entirely irrational and baseless (which I have found that I am not see paragraph 65) I must give some weight to the consequent emotional harm to the Child in considering what orders are in the best interests of the Child.
In relation to the Respondent mother’s anxiety, the Applicant father submits that there is no evidence as to how unsupervised contact would impact on her anxiety and therefore consequently upon the Child. However, Dr Quadrio concludes that the Respondent mother’s state of anxiety does cause some difficulty to the Child in terms of promoting in him an anxious attachment.
I have also had regard to the text of emails tendered sent by the Respondent mother in response to mild enquiries by the Applicant father. I accept the Applicant father’s submission that the Respondent mother’s response was tense and unconcilatory. I find such uncalled for response on the face of the emails corroborative of a nervous anxiety in the Respondent mother in her dealings with the Applicant father.
Whilst I accept that there is no evidence that unsupervised contact would result in a furthering in the Child of anxious attachment or such other manifestations, I accept the Respondent mother’s evidence that her anxiety would be somewhat alleviated if contact was to be supervised until the Child was 7 years old.
I have regard to the fact that the Respondent mother agrees to contact in the presence of FE, the Applicant father’s sister, PL and the maternal grandmother, with whom the Applicant father has had a reasonably good relationship to date.
The Respondent mother also agrees that contact may occur at a place at the discretion of the Applicant father, provided one of those three supervisors is present, which would provide relative normality for the Child in those potential environments in which contact with his Applicant father may occur.
I have also had regard to the fact that the Respondent mother agrees to contact at least one day of each weekend between 11am and 6pm and one weekend from 9am Saturday to 6pm Sunday in each of the school holidays in Canberra with the Applicant father’s extended family.

Best interests of the child

I have had particular regard to ss.60B, 65E and 68F of the Family Law Act in considering what is in the best interests of the Child.

There is no direct evidence of the ways in which the Respondent mother’s anxiety manifests itself in her behaviour and interaction with the Child and the particular aspects of that interaction that may be harmful to the Child. However, there is some evidence in Dr Quadrio’s report and the Respondent mother’s own evidence that her high level of anxiety and over protectiveness, which she attributes to her concerns about the safety of the Child with the Applicant father were unsupervised contact to continue, may be detrimental to the Child.
In considering what orders are in the best interests of the Child I am satisfied it is appropriate to seek to minimise the effect on the Child of the Respondent mother’s anxiety. I am satisfied this can be addressed in part by providing a period of supervised contact whilst the Respondent mother is treated in accordance with Dr Quadrio’s recommendations. At the same time consideration must be given to the effect on the Child of not having regular unsupervised overnight contact with his Applicant father.
Unsupervised overnight contact is obviously ideal from the Applicant father’s point of view. However, I am satisfied that the absence of that contact in the Child’s early years constitutes very little, if any, risk to the ultimate relationship that may develop between the Child and his Applicant father as the Child matures. This is particularly so where the Child can enjoy contact with his father at places and with people which would not obviously cause the Child at his age to wonder why or even be conscious of the fact that he was not alone with his father. That level of risk I find to be less than the Child’s continued exposure to the untreated high level anxiety of the Respondent mother and the consequent impact on the Child of her overprotective and anxious style of parenting.
Accordingly, I am satisfied that the Child’s interests are best served by supervised day contact only with the Applicant father for some relatively short period to enable the Respondent mother to address professionally her anxieties and over protective parenting style and their detrimental effect on the Child.
Accordingly, I am satisfied that, having regard to all the evidence and submissions by all parties, the best interests of the Child lie in contact one day of each weekend between 10am and 6pm supervised by those identified above for the next 12 months, or such earlier period to which the Respondent mother may agree.
In the absence of any evidence or further assistance, I have arrived at a period of 12 months as being sufficient time to allow the Respondent mother to address her problems as comprehensively as possible with the comfort and reassurance that any risk she believes the Child to be at is addressed by supervised contact with the Applicant father over that period. Having regard to the findings I have made in respect of the lack of any unacceptable risk to the Child, in the circumstances, it is not appropriate to deny the Child for more than 12 months the opportunity otherwise to have full and unfettered contact with his Applicant father.
Further, I have regard to the evidence of the anxiety the Respondent mother would suffer if either unsupervised contact or contact with an inadequate supervisor was to occur. I have further considered the consequent detriment to the Child as a result of being exposed to that high level of anxiety in his Respondent mother.
Having regard to the Respondent mother’s concerns about what may have occurred in the Oval Incident during the supervision of TA I find that the Respondent mother’s anxiety will only be heightened where TA is a supervisor. It is not necessary that he be a supervisor in that there are other members of both the Respondent mother’s family and the Applicant father’s family and a friend in FE that are acceptable as supervisors to both parents. I therefore do not propose to order that Timothy Anderson be a supervisor.
Contact of this frequency and in the environments proposed would largely allow for the development and fostering of the relationship between the Child and his Applicant father, whilst ensuring minimum harm to the Child by containing the Respondent mother’s anxiety through supervised contact orders with which, but for duration, she has already largely agreed.
During that 12 month period the Respondent mother is to undergo therapy as advised by Dr Quadrio or K Health Services to assist her in addressing her over protective and anxious style of parenting in order to minimise any detrimental effect on the Child.
In accordance with Dr Quadrio’s recommendations the Child is also to receive treatment and therapy as directed by Dr Quadrio and with the full cooperation of both parties.
I am further satisfied that the Child should be able to enjoy overnight weekend contact at the home of PL and under her supervision 4 times during the next 12 months to be agreed between the parties and PL commencing during the next school holiday period. Failing any such agreement, PL is to nominate the weekends that are the most convenient to her following consultation with both parties as to their convenience.
Thereafter the Child should have unsupervised contact each alternate weekend from 10am Saturday to 6pm Sunday, and 1 week 4 times a year unless otherwise agreed.
Failing agreement, the Applicant father should have telephone contact with the Child each Tuesday and Thursday between 5.45pm and 6.15pm.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: G. Darcy

Date: 28 October 2004