Lagarde & Courbet
[2022] FedCFamC1F 596
Federal Circuit and Family Court of Australia (Division 1)
first instance
Lagarde & Courbet [2022] FedCFamC1F 596
File number(s): BRC13849 of 2021 Judgment of: CAREW J Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – Where the mother alleges the father sexually abused the child – Where the father denies the allegation – Where the Court finds the father does not pose an unacceptable risk of harm to the child – Where the mother has a long history of mental health issues – Where the Court finds the mother does pose an unacceptable risk of emotional and psychological harm to the child.
FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where the Court finds the child was exposed to family violence on at least one occasion – Where the child is not at risk of family violence or exposure to family violence.
FAMILY LAW – PARENTING – PARENTAL RESPONSIBILTY – Where the presumption of equal shared parental responsibility does not apply – Where the Court orders the child live with the father and he have sole parental responsibility.
Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1936) 60 CLR 336
Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
M v M (1998) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 202 Date of hearing: 1- 5 August 2022 Place: Brisbane Counsel for the Applicant: Mr C. Duplock Solicitor for the Applicant: O’Sullivan’s Law Firm Counsel for the Respondent: Ms S. Downes Solicitor for the Respondent: Pullos Lawyers Counsel for Independent Children’s Lawyer: Mr S. Cooper Independent Children’s Lawyer: N R Barbi Solicitors ORDER
BRC 13849 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LAGARDE
Applicant
AND: MR COURBET
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
23 september 2022
THE COURT ORDERS THAT:
1.All previous Parenting Orders are discharged.
Parental Responsibility
2.Mr Courbet (“the father”) shall have sole parental responsibility for major long term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) for the child, X born 2015 (“the child”), but in the exercise of his sole parental responsibility the father shall:
(a)Advise the mother of the decision that is required to be made concerning the child (except in the case of an emergency where the father is to notify the mother of the decision that he has made as soon as possible and in any event, within 24 hours);
(b)Seek the mother’s input into that decision and for this purpose the mother is to advise her response within 7 days, or such earlier time as the father advises in the event that the required decision is urgent;
(c)Genuinely consider the input of the mother; and
(d)Inform the mother of the decision that has been made.
Living Arrangements
3.The child shall live with the father.
4.The child shall spend time with Ms Lagarde (“the mother”) at all such times as may be agreed in writing between the parents and failing agreement as follows:
(a)Pending the mother complying with paragraph 5 herein, as follows:
(i)For the maximum time available at a Contact Centre nominated by the father on one occasion each week, with the costs of supervision at the Contact Centre to be borne by the mother;
(ii)In the alternative to sub-paragraph (i) herein, and upon the parents reaching agreement in writing, for up to four hours on one day each week, supervised by a person agreed to by the parents, with the costs of supervision to be borne by the mother;
(iii)In the event that supervised time continues for more than six months, the weekly time spent by the mother with the child shall be suspended for half of each school holiday period;
(b)Upon the mother complying with paragraph 5 herein, as follows:
(i)From 9:00am to 1:00pm each Saturday unsupervised for six months (save that the mother’s time shall be suspended during the first half of any school holiday period);
(ii)After six months, from 9:00am to 5:00pm each Saturday unsupervised for a further 12 months (save that the mother’s time shall be suspended during the first half of any school holiday period);
(iii)After 12 months, from 3.00pm or after school on Friday until 9.00am or before school on Monday (or Tuesday if Monday is a public holiday) each alternate weekend unsupervised;
(iv)Upon the commencement of alternate weekends pursuant to sub-paragraph (iii) herein, the mother shall also spend one half of each school holiday period with the child and Mothers’ Day and alternating Christmas Days.
Mother to seek ongoing therapy
5.Within 30 days from the date of this Order, the mother shall engage with a psychologist and a psychiatrist (“the mother’s mental health care providers”) on an ongoing basis, for not less than one (hour) session per week with a psychologist and not less than one session per month with a psychiatrist, to address the mother’s mental health and/or personality issues as identified in the Reasons for Judgment dated 23 September 2022 and the report by Dr B dated 28 January 2022, and to give effect to this Order:
(a)The mother shall provide a copy of this Order, the Reasons for Judgment, the family report by Dr C dated 9 February 2022, and the report by Dr B dated 28 January 2022 to the mother’s mental health care providers within 7 days of their engagement;
(b)Within 7 days of providing the reports, Order, and Reasons for Judgment to the mother’s treating mental health care providers, the mother shall provide written confirmation of same to the father;
(c)The mother shall continue her attendance upon the mother’s mental health care providers as recommended by them and take such medication as may be prescribed from time to time in the dosage prescribed; and
(d)Upon completing at least six months of intensive therapy, the mother shall provide to the father a report from her mental health care providers:
(i)Confirming that the mother is addressing the mental health and/or personality issues identified in the Reasons for Judgment (in particular at [194]) and Dr B’s report (and in particular at [171] – [178] of the Reasons for Judgment);
(ii)Confirming that the mother is complying with the treatment plan/s; and
(iii)Recommending a course of continuing treatment.
Communication by telephone / video
6.The mother shall be at liberty to communicate with the child at all such times as may be agreed in writing between the parents and, failing agreement, by telephone or video call commencing between 6:00pm and 6:30pm on one day each week as nominated by the father.
Counselling for the child
7.At the discretion of the father, the child may continue to engage with Ms D for the purpose of therapeutic counselling, with the father to be responsible for payment of appointments for himself and the child jointly and individually, and the mother to be responsible for payment of any appointments she attends with the child or individually, and the father is at liberty provide a copy of the Reasons for Judgment to Ms D at the first appointment following the making of this Order.
Attendance at the child’s school by the mother
8.The mother shall be at liberty (during any period of time that the child is spending unsupervised time with the mother) to attend all educational and extra-curricular functions, events and activities the child may be involved in or to which parents are normally invited, subject always to the discretion of the school or organising authority.
Information provided by the child’s school
9.If either parent is informed by the child’s school of a social, behavioural or educational concern in relation to the child, the receiving parent shall notify the other parent of all details of the concern within 48 hours.
10.This Order shall, without more, act as authority to the child’s school to provide each parent (at that parent’s expense) information about the child’s education progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child, and other school communications ordinarily provided to parents.
Communication
11.Each parent shall keep the other advised, at all times, of their current residential address, email address, landline telephone number (if any) and/or mobile telephone number and notify the other within 7 days of changes to any of these.
12.The mother and father shall:
(a)Keep the other parent informed of the names and addresses of any medical or other health practitioners who treat the child and this Order shall, without more, act as authority to authorise those practitioners to provide to the other parent the information they are lawfully able to provide about the child;
(b)Inform the other parent as soon as reasonably practicable of any significant medical condition or significant health issue suffered by the child, including advising of any follow up doctor’s appointments;
(c)Advise the other parent of any specialist, counselling, or allied health appointment for the child within 3 days of any appointment being made, other than in cases of a genuine emergency in which case the parent having the child in their care at the time must inform the other parent as soon as practicable.
Injunctions
13.The parents shall each be restrained from:
(a)Attending upon the child’s school or extra-curricular activities during any period the child is living with or spending time with the other parent unless the parents expressly agree in writing;
(b)Arranging for the child to participate in any extra-curricular activity which takes place during time the child is spending with the other parent unless the parents expressly agree in writing;
(c)Abusing, insulting, belittling or otherwise denigrating the other to, or in the presence of, or within earshot of, the child or allowing the child to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
(d)Discussing these proceedings, and/or negotiations about parenting, with, or in the presence of, or within earshot of, the child or allowing the child to remain in the presence of, or within earshot of, any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to this Order or as agreed;
(e)Showing to, or leaving accessible to, the child any document connected with these proceedings;
(f)Publishing or displaying images, video footage, or information or otherwise naming the child on any internet based website which is accessible by the public, save for a secure “group” comprised only of immediate family and close friends, including but not limited to Facebook, YouTube, and Twitter, or otherwise discussing these proceedings with any third party (unless authorised at law), and in the event that there are any publicly available images of the child on social media, the parents shall take all reasonable steps to ensure that such images be removed within 24 hours of the date of this Order;
(g)Showing to, or leaving accessible to, the child SMS text messages, emails or other written communications between the parents.
14.Pursuant to s 65L of the Family Law Act 1975 (Cth), at 10.00am on Monday, 26 September 2022, the father shall bring the child to a meeting with a Court Child Expert of the Federal Circuit and Family Court of Australia Division 1 so that this parenting Order may be explained to the child.
15.Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lagarde & Courbet has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X is seven years of age and has been embroiled in her parents’ conflict for most of her short life. After her parents separated in or about July 2017, the child lived with her parents in a shared care arrangement, initially spending nine nights with her mother and five nights with her father in each fortnight. The living arrangements for the child changed in April 2020 when she commenced to live week about with each parent.
On 11 September 2021, the child’s life took a turn for the worse as a result of her allegedly saying to her mother something like – “Daddy touched my vagina and it hurts”. While one can readily understand the concern that such a statement might provoke in the absence of any context, it is common ground in this case that the child suffered from vulvovaginitis (or ‘vaginitis’ - a common genital irritation experienced particularly by little girls) and the mother had instructed the father to apply a soothing cream around the outside of the child’s vagina.
The mother immediately involved police without providing any context. The child was interviewed three times by police in September 2021. The child was subjected to a vaginal medical examination on 16 September 2021 involving a swab being taken which, according to the mother, caused the child to scream out in pain. The mother commenced the child in counselling as a victim of suspected child abuse in November 2021. The child was interviewed in January 2022 by child safety officers from the Department of Children, Youth Justice and Multicultural Affairs (“Child Safety”). Further, and notwithstanding the father denying inappropriately touching the child and offering to submit to supervision of his time with the child, the mother withheld the child from the father for six months.
Further to the father’s denial in these proceedings of inappropriately touching the child, he provides this very relevant account:
49. In early September 2021 [the child] again complained to me of a ‘sore vagina’. I inspected it and found it was inflamed. I applied Sudocream to the skin around her vagina (as requested by [the mother]). On one occasion, [the child] flinched as I applied the cream as I think the cream may have stung her sore and inflamed skin.
The fact that the child had vulvovaginitis was confirmed by a doctor on 16 September 2021.
Unsurprisingly, the father was not charged with any criminal offence and Child Safety concluded, in January 2022, that the child was not in need of protection from the father, but expressed concern that the child may have been coached by the mother.
For the reasons which follow, I find that the allegations of sexual abuse made by the mother against the father are groundless. Given the escalation in the views expressed by the mother during the trial, including that the father and his mother are paedophiles, I find that the risk of psychological harm to the child if she remains in the mother’s care is an unacceptable risk.
Accordingly, I propose to order that the child live with her father and initially spend supervised time with her mother, until the mother undertakes therapy with a psychologist and psychiatrist and a report is produced by her treating psychologist and psychiatrist confirming that the mother has undertaken at least six months of therapy to address the issues identified in these reasons and in the report of Dr B, psychiatrist, dated 28 January 2022. Thereafter, and conditional upon compliance with the requirement for therapy and the production of a report, the child will commence to spend unsupervised daytime with the mother and, ultimately, alternate weekends and half school holidays. This will of necessity be a fairly slow process to ensure, as far as possible, that the risk posed by the mother is sufficiently ameliorated.
Despite the risk posed by the mother, the child has a close and loving relationship with her, and all reasonable steps should be taken to ensure that the child’s time with her mother occurs regularly. Any costs associated with supervision of the mother’s time with the child should be borne by the mother.
Before setting out the background, I note that the father has privately funded his legal costs in these proceedings in the sum of about $171,000. The mother has been provided legal aid for the trial under the Commonwealth Family Violence and Cross-Examination of Parties Scheme because of the mandatory ban on cross-examination where a protection order is in place.[1] A protection order was granted against the father in favour of the mother, without admissions by the father, on late 2021 and is not due to expire until late 2026.
[1] See s 102NA of the Family Law Act 1975 (Cth).
BACKGROUND
The mother, Ms Lagarde, was born in 1984. The father, Mr Courbet, was born in 1981. They commenced cohabitation in early 2014 and married in late 2014. The parties separated in or about July 2017 and divorced in late 2020. There is one child of the relationship, X born 2015, who is the subject of these proceedings.
The mother has two other children from a previous relationship, namely, Y aged 15 years, and Z aged 13 years. The mother has re-partnered with Mr E (“Mr E”), born 1977. Their relationship commenced in early 2019. Mr E has two children, namely, V aged 12 years, and W aged 10 years. Mr E does not currently live on a permanent basis with the mother. Mr E is a tradesman.
The mother lives in Suburb F and contends that she works in social services on a permanent part-time basis. At times, the mother is required to work overnight shifts (once or twice per month). During these shifts, the child is cared for by either Mr E or the maternal grandmother.
The father has re-partnered with Ms G (“Ms G”), born in 1986. Their relationship commenced in mid 2019. Ms G has two children, namely, T aged 11 years, and U aged 4 years. Ms G and her two children live with the father at Suburb H. Ms G is a public servant and works part-time as an educator.
The father is currently unemployed having been made redundant by J Company in early 2021, where he had worked as a technician for six years. The father receives a military pension as a result of injuries sustained while a member of the Australian Defence Force where he served for 14 years as a technician. The father suffers chronic back pain and provides a history of Post-Traumatic Stress Disorder (“PTSD”) as a result of his service. The father attends regular counselling but there is no suggestion that any condition from which he suffers detrimentally impacts his parenting capacity, although Dr B recommends that he continue with psychological counselling. The father expresses an intention to return to part-time employment in the future. The father volunteers his time at local organisations. In the event the child were to be in his primary care, the father does not intend to return to employment until the child is settled.
As already noted, since the parties separated in 2017 (and up until September 2021), the child lived with the mother and the father in a shared care arrangement, originally in a nine/five fortnightly arrangement as well as half school holidays, before changing to an equal time arrangement in April 2020. The child additionally lived with the father for two weeks in December 2018 while the mother travelled overseas, and from late October 2019 to early November 2019 while the mother recovered from surgery.
The equal time living arrangement continued from April 2020 until 11 September 2021 when the mother withheld the child from the father and the child did not see her father again until 27 March 2022 (apart from the Family Report interviews on 27 January 2022).
A temporary protection order was made in late 2021, on the mother’s application, naming the father as the respondent and the mother as the aggrieved. A final protection order was made shortly after in 2021 by consent but without admission by the father. The protection order is due to expire in late 2026.
On 18 October 2021, the mother filed her Initiating Application seeking only a final property order i.e. no parenting order was sought. On 15 November 2021, the father filed his Response seeking the mother’s property application be dismissed and cross-applied for interim and final parenting orders. On 17 December 2021, the mother discontinued her property proceedings.
On 25 February 2022, the mother consented to an Order that the child spend time with the father supervised by Ms G (the father’s partner). The parents also consented to engage in family therapy, individual counselling, and to complete parenting programs. Each parent contends that they have complied with that Order.
The child has spent gradually increasing daytime with the father each week since 27 March 2022, pursuant to the 25 February 2022 Order, and commenced fortnightly overnight stays with him on 18 June 2022.
PROPOSALS OF EACH PARTY
The mother’s primary position is that the father poses an unacceptable risk of harm to the child and accordingly, the child should continue to live with her and spend supervised time with the father. The terms of the order sought by the mother, including in the alternative if the father is found not to present an unacceptable risk of harm to the child, are set out in the Minute of Order annexed to her Case Outline filed 27 July 2022, save that during submissions the mother made a significant concession i.e. the mother withdrew her objection to Ms G being the supervisor[2] (and save that subsequent to the conclusion of the trial, a Minute of Order was forwarded to Chambers, with the consent of all parties, setting out certain provisions agreed to by all parties with certain exceptions as indicated on the face of the Minute).[3]
[2] The mother’s primary position was for the child to spend two hours per fortnight with the father supervised at a contact centre but after making the concession that Ms G could be the supervisor it is unclear whether the mother’s proposal as to the duration of time was intended to increase.
[3] The Minute will remain with the Court papers.
The father’s primary position is that the child should live with him and spend initially supervised time with the mother while she undertakes therapy, and thereafter alternate weekends and gradually increasing time during school holidays. The terms of the order sought by the father are set out in the Minute of Order annexed to his Case Outline filed 27 July 2022, save as already noted in the preceding paragraph.
The Independent Children’s Lawyer (“ICL”) recommends that the child spend, at a minimum, equal time with the father, save that if the mother is found to pose an unacceptable risk of harm, the child should live with the father and spend time with the mother (although such time is not particularised). The ICL supports the father’s submission that the allegations of sexual abuse against him should be rejected as groundless.
ISSUES
The parties identified the following issues for determination:
(1)Did the father sexually abuse the child?
(2)If a positive finding of sexual abuse is not made, but the Court cannot reject the allegations as groundless, does the father pose an unacceptable risk of harm to the child by reason of alleged sexual abuse, family violence, or exposure to family violence?
(3)Does the mother pose an unacceptable risk of harm to the child by reason of her alleged intentional misinterpretation of a statement she says the child made on 11 September 2021, allegedly encouraging the child to make statements indicating sexual abuse or allegedly fabricating such allegations, family violence or exposure to family violence, or the impact of any psychiatric illness on her parenting capacity?
(4)Will the mother support the child’s relationship with the father in the event he is found not to pose an unacceptable risk of harm?
(5)Should the parent with whom the child lives primarily have sole parental responsibility?
Somewhat unusually, the parties were given leave to relist the matter if any document was to be tendered from documents produced subsequent to the hearing by a General Medical Practitioner, Dr K. This arose in circumstances where the mother’s trial affidavit contained evidence about her having found a “significant amount of blood” on the child’s underwear on an undisclosed date but likely to be prior to the parents separation in 2017, and having taken the child to Dr K who, according to the mother, had examined the child on the “outside of the vagina but stated looking internally might be too traumatic for a child”. The mother contended in her affidavit that she had placed the child’s underwear in a zip lock bag, the impression being that she had shown the doctor in circumstances where the mother said she had also attended at the child’s then child care centre and shown them the underwear (there was no evidence from the child care centre). The parties jointly informed the Court that, although a bundle of documents had been produced from Dr K, it was not proposed to tender any document.
Before considering the issues in this case, I set out the legal principles applicable to the determination of what parenting order is in the child’s best interests.
WHAT LAW GOVERNS THE DETERMINATION OF A PARENTING DISPUTE?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]
[4] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined by s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility;
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[5] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[6] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[7] Where it is not possible to reject an allegation as groundless, the Court is nevertheless required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[8]
[5] Evidence Act 1995 (Cth) s 140.
[6] M v M (1998) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1936) 60 CLR 336 at 362 (Dixon J).
[7] Ibid.
[8] M v M (fn 6); N and S and the Separate Representative (1996) FLC 92-655.
In the recent decision of Isles & Nelissen[9] (“Isles”) a five member bench of the Full Court of this Court reviewed the jurisprudence relating to the assessment of risk in parenting matters, but particularly in relation to the standard of proof required when assessing the future risk of harm. The Full Court said from [1]:
[9] [2022] FedCFamC1A 97 (“Isles”).
Long ago, in parenting proceedings characterised by one parent’s allegation that the other had sexually abused their child, the High Court of Australia (“the High Court”) emphasised the distinction between two very different things: on the one hand, proving alleged sexual abuse according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future: (M v M).
In respect of the first issue, the High Court said (at 76):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(Footnote omitted)
The reference to Briginshaw v Briginshaw was the endorsement of an earlier enunciation of the common law principle of the civil standard of proof, now enshrined within s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
In relation to the second question pertaining to risk, the High Court said (at 77–78):
... [T]he court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. ... [T]he test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
But the High Court did not elaborate how the alleged risk of abuse would be established on the evidence before the Court.
In the years which have since elapsed, this Court has on occasions posited that the risk of such abuse (and hence the risk of consequent harm to the child) must be proven on the balance of probabilities according to the civil standard of proof, in just the same way as facts are proven. We consider that statement of principle to be incorrect and now state it to be so, fully recognising the caution which should attend any departure from earlier authoritative decisions.
(Citations omitted)
The Full Court went on to state at [85]:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
(Citations omitted) (Emphasis added)
The Full Court in Isles differentiated between the standard of proof required for making findings of fact and the standard of proof required to assess a risk as unacceptable and concluded that it is only the former that is required to be proved on the balance of probabilities. To that extent, Isles represents a departure (as acknowledged in the judgment) from some earlier Full Court decisions[10] in which it was suggested that the assessment of risk was also required to be proved on the balance of probabilities. However, the Full Court in Isles also states that “[t]he finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not”. This comment was made in the context of whether or not such a determination is discretionary but for present purposes, if the phrase “known facts and circumstances” means ‘findings of fact’ i.e. a finding based on the balance of probabilities, it would also represent a departure from previous decisions of the Full Court.
[10] See, eg, Johnson & Page (2007) FLC 93-344 (“Johnson & Page”).
For example, in Johnson & Page[11] the Full Court held, among other things, that the “components” informing a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[12] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[13]
[11] Ibid.
[12] Ibid at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM).
[13] Johnson & Page (fn 10) at 81,891, [71].
Johnson & Page was overturned by Isles but only to the extent it held that the determination of whether or not a risk is unacceptable needs to be proved on the balance of probabilities.[14]
[14] Isles (fn 9) at [46]-[47].
There have various terms used to describe what it is the Court has regard to, when assessing the magnitude of risk. For example, Johnson & Page refers to the “components” or “factors” and Isles refers to the “known facts and circumstances”. The High Court in M v M said that “[i]n resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk” (emphasis added). The High Court immediately thereafter likened the task to be undertaken in assessing the magnitude of risk, with the primary focus in parenting disputes of determining what is in the child’s best interests, when it said:
After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.
(Emphasis added)
The High Court’s reference to the assessment of the ‘possibility’ of events or occurrences can only mean something other than findings of fact proved on the balance of probabilities, given that the focus is on events or occurrences that have not yet occurred.
In Bant & Clayton[15] the Full Court said from [38]:
[15] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
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.
The Full Court in Bant & Clayton[16] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[16] Ibid.
Bant & Clayton was also overturned by Isles but only to the extent that it held the determination of whether or not a risk is unacceptable was discretionary.
The Full Court in Eastley & Eastley,[17] (“Eastley”) (decided subsequent to Isles), said (by inference) that when assessing whether or not a risk is unacceptable, Johnson & Page remains good law to the extent that it held that not all (or even any) “components” or “factors” need to be proved on the balance of probabilities before a risk can be found to be unacceptable. The Full Court in Eastley said at [31]:
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred as … alleged. However, the primary judge’s enduring suspicion the incident might have occurred as … alleged was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
[17] [2022] FedCFamC1A 101.
In summary, if the allegations about sexual abuse and violence in the present case are unable to be rejected as groundless, I must consider all relevant evidence as part of the “matrix of evidence” to determine whether or not the possible risk of future harm is unacceptable and, in making that determination, I do not necessarily have to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although I would need to be very cautious in concluding that a risk is unacceptable if no such findings are made. Isles has confirmed that when assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.
When considering the parenting dispute more broadly, I am not required to make findings of fact on every factual dispute raised by the parties.[18] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[19] on each and every factual dispute.
[18] Baghti & Baghti and Ors [2015] FamCAFC 71.
[19] M v M (fn 6) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[20]
[20] Banks & Banks (2015) FLC93-637.
I turn now to consider the issues in this matter.
Did the father sexually abuse the child?
The mother seeks a positive finding that the father sexually abused the child by penetrating her vagina with his finger. The father seeks a finding that the allegations of sexual abuse made by the mother against him are groundless. While it is not included as a separate issue in dispute between the parties to be determined at trial (the issues are set out at [25]), the father also seeks a finding that allegations made by the mother that the father’s mother has sexually abused the child are groundless.
Evidence relied upon by the mother
No doubt mindful of the High Court’s statement of principle set out at [35] above, counsel for the mother submitted that the evidence of “penetration” comprises “at its highest” the following:
(a)The mother’s trial affidavit at [79]:
On Thursday, 16 September 2021 at 3pm, I took [the child] to see [Dr L] at [M Medical Centre] to have her genital region examined. [Dr L] took two swabs. During the procedure [the child] screamed. [The child] also had to give a urine specimen for the doctor. When I took [the child] to the bathroom to collect this she told me that the 'swab really hurt but not as much as daddy putting a finger inside my vagina'.
(Emphasis added)
(b)The Family Report by [Dr C] at [89]:
When asked if anyone had helped her understand what today would be about, [the child] nodded positively and told me, ‘I have to tell you things and I have to be brave and I don’t know what else’. She indicated that her mother had provided her with this information as, ‘she wanted me to be brave’. We discussed whether she had been brave on other occasions, and she told me, ‘yes I have. I had to tell police about things again and again’. When asked what that was like, she told me, 'I don’t know. I don’t have to go any more, do I?’ I responded that I wasn’t sure and added that usually this only happens when there is a ‘really good reason and asked her if she thought there was any good reason’. [The child] paused and then said, ‘my dad touched my vagina’ and ‘he put his finger in my vagina’. I asked if he was putting cream on her and she responded, ‘I don’t know. He put his finger in my vagina’. It seemed these statements were given because [the child] assumed this may be a display of bravery and/or that she felt I expected her to provide that information. I did not pursue this in any forensic manner as at this stage, and with the level of questioning she has already participated in, it served very little purpose.
(Emphasis added to indicate the focus of the submission)
(c)The third police interview with the child on 21 September 2021 during which the child said:
“Daddy touched my vagina”
…[21]
“it was in the inside” [long pause] “and I telled him to stop but he didn’t”
(Emphasis added to indicate the focus of the submission)
(d)A note purportedly written by the child and given to her teacher in the last few or couple of weeks before the trial (Exhibit 14):
And [scribble] dad [scribble] Poot his finger in side of my vigiana 5 time’s
(Emphasis added to indicate the focus of the submission)
(e)A diary/notebook entry purportedly written by the child on an unknown date and given to Ms D, a counsellor providing family therapy, by the mother on 14 April 2022:
Dad tuchtd my vujiner and it hout vey much and we wour in my bedroom and [T] and [U] dawn the stes plaing and M wos making brecfist. dad tuchs in side my vujiner and I didn’t lic it. I sed stop but he didn’t stop he alsow tucht awside. I alsow felt sced and I felt roryd and he sed to not tell eny body.
(Emphasis added to indicate the focus of the submission)
[21] There are further questions and answers not referred to by Counsel for the mother but which are set out later in these reasons.
Counsel for the mother submitted that “it is the collective amount of times that a reference has been made to a finger, penetration and vagina” that would leave open a finding that the father had sexually penetrated the child’s vagina.
Other relevant evidence
It is of course necessary to forensically examine all relevant evidence and not just the parts cherry-picked on behalf of the mother.
Bloodied underwear prior to July 2017
In her trial affidavit the mother deposes as follows:
33.[The child] had been at [N Childcare Centre] throughout this time (having done so from 2015 to 2019). I recall one afternoon, though I do not recall the date, where [the father] had picked [the child] up and taken her home. In the evening when I went to bath [the child] I noticed a significant amount of blood on [the child’s] underwear. I showed [the father] straight away and he said it looks like faeces. I told [the father], no, that is blood I'm calling the child care centre to talk to them. [The father] told me I was overreacting and not to call them. I felt uneasy about this as it was very unusual to see blood on a child's underwear. It was a significant amount in the groin area. I put the underwear in a zip lock back and put them in my handbag.
34.The following day I went to the childcare centre and asked to speak to the woman in charge. [Ms DD] was her name but unsure of her last name. I showed her the underwear and she spoke to all members of staff who had been looking after [the child] the previous day but there was no explanation. She suggested it could be from something at home but I was horrified and denied that to be possible. I ended up taking [the child] to a doctor ([Dr K] and [O Medical Centre], [Suburb P]). [Dr K] had a look at the outside of the vagina but stated looking internally might be too traumatic for a child so young, so I agreed not to worry.
While not immediately apparent what the mother intended to convey by this evidence, it seems the intention was to add weight to her allegations of sexual abuse against the father, although how that might be so is unclear. The father contends that he has no recollection of such an event. If there had been such an event, it is unlikely that the father would not have remembered it. Despite being given every opportunity, the mother failed to produce any evidence to corroborate this event. It seems doubtful that the child had blood in her underwear as alleged.
Use of anatomically incorrect language
Matters involving allegations of sexual abuse are often very difficult to determine because the allegations often rely upon an adult’s interpretation of what a very young child may have said. In this case, a number of the mother’s allegations refer to the “vagina” but, as the case progressed, it became apparent that where the mother used the word ‘vagina’ in her evidence she most often did not mean ‘vagina’ but rather ‘vulva’ or ‘labia’.
It is common ground that the child uses the term ‘vagina’ to refer to her genitalia in a general sense.
Child’s history of vulvovaginitis
It is also common ground that the child was first diagnosed with vulvovaginitis by Dr L in April 2021 and she recommended to the mother to avoid soaps and to apply a barrier cream around the outside of the child’s vagina, and that the mother passed on this recommendation to the father.
Statement allegedly made by the child on 11 September 2021
In the mother’s trial affidavit at [63] she states that on 11 September 2021, the child said to her – (quote) “Daddy touched my vagina, and it hurts.”
In a diary entry made by the mother on or about 11 September 2021 the mother does not purport to quote the child verbatim, but rather the entry is as follows:
8.30 made pancakes with [the child]. [The child] was touching groin area and I asked if she needed to go to the toilet. [The child] said her vagina is sore because daddy touched it and it hurt. …
(Emphasis added)
In the mother’s application for a protection order dated 15 September 2021, the mother attaches a document handwritten by the mother, which includes the following:
… On returning from [the father’s] house on Friday the 10th of September 2021 [the child] disclosed the following. On Saturday the 11th of September 2021 while cooking with me she stated ‘Daddy touched my vagina and it hurt!
(Emphasis added)
In the mother’s statement to police dated 21 September 2021, the mother provided the following account of this event:
19.On Sunday the 11th September 2021, I was making pancakes at home with [the child]. I noticed [the child] was touching the outside of tights around her groin area. I said to her Do you need to go to the toilet?" She said ''No, my vagina hurts cause, Daddy touched it.” I said "Oh, ok " I kind of didn't really know what to say.
20.I wrote down what she had said and then called a Police Officer, …
21.While the kids were eating, I spoke with a female officer …
(Emphasis added)
On 11 September 2021, the mother contacted police, and the child was interviewed on 12 September 2021 initially at about 9.30am (the child was interviewed again at approximately 11.00am).[22] The police records include the following about the information provided by the mother relating to 11 September 2021:
On 11th September 2021 the victim child disclosed to her mother … that the [father] had touched her vagina in her bedroom during a visit. …
… [The mother] stated that the conversation took place while making pancakes, the day after returning from visitation with the [father] who resides in [Suburb H]. The [mother] asked the [child] if the touch occurred while toileting and the victim child denied this and stated that it happened in the bedroom. The victim [child] then disengaged with the [mother] and refused to talk about incident, stating her dad [the father] would get really mad at her for saying something. …
(Emphasis added)
[22] Exhibit 3 is an agreed transcript of the first police interview.
The police record does not accord with the mother’s evidence in these proceedings, in that the mother’s trial affidavit and indeed her diary note for 11 September 2021[23] records that the child said nothing else to her before she called the police i.e. nothing other than - “Dad touched my vagina and it hurt” or “it hurts”. During cross-examination, the mother initially confirmed that the child said nothing else to her prior to her calling the police on 11 September 2021 and nothing further until the night of 12 September 2021 i.e. after the police interviews.
[23] Exhibit 16.
During cross-examination, the mother agreed that she had spoken to Mr E before she called the police and he had asked something like, “Could it be something other than foul play?” The mother then said – “neither of us wanted to jump to conclusions, but the way that [the child] said it – she had a sore vagina in the past and it was different, the way she – it was different. She has never said that before”.
The mother was then taken to Mr E’s trial affidavit which relevantly states:
31.In or about 11th of September 2021, [the mother] phoned me to alert me that [the child] had disclosed to her that her Dad had “Touched me on the vagina and it hurt.” I immediately asked if it was to apply cream, as I was aware of a recent irritation to the area. To which she answered, No I asked her that. We then discussed the next step, as it was just over handover, it seemed we had time to do the ‘right’ thing and report to the police.
(Emphasis added)
The mother then agreed that she had in fact asked the child whether the father had touched her to apply cream, although she added – “I did ask her but it was very informal”. This comment was not explained. Later during cross-examination the mother said the conversation with the child about cream was “very brief”. The mother conceded that no mention of such a conversation appears in her trial affidavit, her application for a protection order signed 15 September 2021, or her police statement dated 21 September 2021, yet she said that she “believe[s]” she had such a conversation.
While I can readily accept that exact words and the order of conversations may well be subject to the frailties of memory, it is the mother’s failure to tell police that the child had a recent irritation to her vaginal area for which it was usual to apply cream, that raises suspicion about the genuineness of the mother’s allegations and her motivation for contacting police. Such information was most certainly relevant and could explain the child’s statement that her father had touched her vagina and it hurt.
History of child’s behaviour
Later in her oral evidence, the mother said that the reason she thought the child was disclosing sexual abuse rather than the father applying cream for the treatment of vulvovaginitis was:
Just with [the child’s] recent behaviour of being – coming home quite distressed, asking how many sleeps she would be having at my house, and then how many at daddy’s … She was becoming more and more unsettled and [the child] – we were making pancakes and she was standing on a stool, and she was touching the outside of her tights, … and as a mum my go-to would be, “Do you need to go to the toilet?” And so when her response was, “No”, she – and she told me that, my gut said there’s more to this, and … “Daddy touched my vagina and it hurt”.
There is no evidence to corroborate the mother’s evidence about any deterioration or change in the child’s behaviour either in the mother’s trial affidavit, her application for a protection order signed 15 September 2021, or her statement to police on 21 September 2021. Mr E describes in his trial affidavit a very tense relationship between the mother and the father to which the child was exposed, at what he describes as the “early changeovers”. I note that Mr E and the mother commenced their relationship in early 2019. Accordingly, I infer that Mr E’s reference to “early changeovers” reflects his observations from about that time. Mr E deposes to there being a visible change in the mother’s demeanour at changeovers involving the parents. Mr E opines that the child was not eager to leave her mother and would act out upon being told that she was going to visit her father. On one occasion, Mr E says that the child said to the mother in his presence – “even if daddy says he hates you, do you still like my daddy?” The behaviours observed by Mr E do not seem to have deteriorated but rather, on his evidence, the child has always demonstrated reluctance to spend time with the father or to “…offer up highlights of her time with her father…”.[24]
[24] Affidavit of Mr E filed 4 July 2022 at [20].
In this context, I note the evidence from Ms G in her affidavit filed 11 July 2022 at [31] as to the child’s repeated comments dating back to 6 March 2020 including the following:
(a)6 March 2020 - “Mum said I am not allowed to love anyone else but her, not even dad” and appeared quite upset;
(b)5 February 2021 - “I hate you all, the only person that loves me is my mummy, she wants me to live with her all the time”;
(c)19 February 2021 – “My mum said you don’t care about me and you only care about [U] and [T]”;
(d)5 March 2021 - “Everyone hates me except my mum, my mum said you hate her, my mum said she wants me to live with her all the time because she misses me so much. My mum said you are not my mum and you have your own children”;
(e)12 July 2021 - “Mum said we are not going to live here forever because you are just another girlfriend. My mum said you don’t love me, only my mum loves me! My mum wants me to live with her because she is so lonely without me. My mum says it is not fair that I live here”;
(f)13 July 2021 - “Mum said that you don’t love me and you are not going to be around forever. Mum said you are just one of daddy’s many girlfriends and you are not my mum”.
The mother does not deny that she made such statements to the child, stating only that such matters are not within her knowledge.
The father contends that, prior to 11 September 2021, the child was repeatedly exposed to the mother’s statements that she missed the child when she was with the father, and that the mother repeatedly turned up at school to see the child during the time the child was living with him e.g. on 15 July 2021, the father says that when he delivered the child to school the mother was waiting and said to the child, “Dad doesn’t let me talk to you so I have to come to school”. The father says that he observed the child looking down at the ground and appearing upset so he gave her a cuddle and left without saying a word to the mother. The father deposes in his affidavit filed 11 July 2022 at [242] to an occasion on 5 February 2021 when the child said to him and Ms G:
I hate you all! My mum is the only person that loves me. She said she wants to live with me all the time. … Everyone hates me except my mum, my mum said that you hate her, my mum said that she wants me to live with her all the time because she misses me so much. My mum said that you are not my mum and that you have your own children.
After this outburst, the father contends that the child was very upset and said she wanted to go home because her mother was lonely. The father says he distracted the child by taking her swimming but that her emotions were “all over the place” that afternoon. The child eventually settled.
There is no record of the mother informing the police or Child Safety or indeed anyone about a deterioration in the child’s behaviour prior to the statement attributed to the child on 11 September 2021.
The first mention of the deterioration in the child’s behaviour was in the mother’s oral evidence under cross-examination, when trying to justify contacting police on 11 September 2021.
The child’s first police interview on 12 September 2021
During the first police interview on 12 September 2021, the child made no comment indicating possible sexual abuse and, in fact, when asked to identify people she could talk to if she felt unsafe, she said “My dad”. At the end of the interview the following exchange occurred:
Police Officer: Well, I’m going to talk to mum now and then I heard that you guys are off on a shopping adventure
Child: Going to toy world
Police Officer: Toy world, that will be fun. Well, you enjoy that I hope you find something for yourself if it’s for you or…
Child: For me
In her trial affidavit the mother states:
67.After the interview, [Detective Q] informed me that [the child] disclosed to officers that she was hurt on the vagina whilst at her dad’s house. …
The child said no such thing. I find it difficult to accept that the police officer would have told the mother something so demonstrably untrue, noting that the interview was recorded. The mother’s evidence is also inconsistent with the statement she provided to police on 21 September 2021 where she said:
25.I’m not sure what she said to the Officers, but they said she hadn’t really provided enough detail about what had happened. …
The child’s second police interview on 12 September 2021
At about 11.00 am on 12 September 2021, the mother returned to the police station with the child, claiming the child had more to say. The child was six years old at the time. A second police interview with the child took place.[25] It was noted that the child had a baby doll with her. The following exchange took place almost immediately after the commencement of the second interview:
[25] Exhibit 4 is an agreed transcript of the second police interview.
Police Officer: … Tell me what you’ve come back to talk to me about?
Child: About my dad
Police Officer: Tell me everything about your dad and start at the beginning?
Child: He touched… my…. [long pause] mm, he touched my …vagina and it hurt
Police Officer: And it hurt. Tell me everything about dad touching you on the vagina?
Child: I didn’t want him to do it and he just did it
Police Officer: Uh ha tell me how daddy did it?
Child: Uhm he just touched it with his hand
In response to further questions, including where it happened, the child stated a number of times that she could not remember. Then, when asked again where she was when the father touched her on the vagina the child initially said “at my house”, then “my dad’s” and then “in my room”. The police officer introduced the word “bedroom” and the child then agreed that it happened in her bedroom but added that it “did not hurt much” and “did not hurt”.
When asked what the child had told her mother the following exchange occurred:
Child: I just telled her that daddy touched my vagina
Police Officer: Uh ha, and what did mum say?
Child: She said can you tell me more about it, but I didn’t want to, so I didn’tAfter the police interviews on 12 September 2021
The mother deposes in her trial affidavit to further statements being made by the child to her on the evening of 12 September 2021:
70.On Sunday 12 September 2021, while settling [the child] for bed she said ‘I was in my room and daddy came in and touched me on my vagina’. I told him to stop but he got angry and smacked me on the bottom and left the room. ‘When I went out of my room daddy smacked me again and put me back in my room.’
71.[The child] then asked me if ‘Daddy’ would find out and said she was scared she would get into trouble.
72.I reassured her that as long as she was honest she wouldn’t get in trouble with anyone, [the child] then took her hand and motioned how her dad had touched and rubbed on the front part of her vagina near her clitoris. I told [the child] no one would ever hurt her again.
During cross-examination, the mother clarified that the three sentences in italics in paragraph [70] of her trial affidavit should all be in quotation marks and that those words were exactly what the child had said to her and that the three sentences had been said “all in one stream” and not in response to any question asked by the mother (although the mother seemed somewhat unclear about whether or not she had raised the topic of the father touching the child’s vagina). The mother later clarified that the three sentences may not be the exact words but rather the “essence” of what was said. The mother went on to say:
[The child] told me when she was at her dads, she was in her bedroom and her daddy went in and touched her on the vagina and she said, “Stop it,” and he didn’t, so he smacked her and then he left the room and he went back in again, and then she left the room and so he smacked her and put her back in her room again.
The mother’s diary entry for 12 September 2021 (the mother claims she recorded the diary note “probably within a week” of the statements by the child), the mother records the following:
9am – 12 noon – [The child] disclosed [the father] touched and hurt her vagina
[The child] further disclosed to me *
*[The child] said that Daddy touched her vagina and started to re-enact how. With two fingers along front of vagina. [The child] said stop it. [The father] smacked [the child] and shut her in her room. [The child] then went out of the room and so [the father] smacked her again and put her back in her room [Ms G’s] (sic) children [T] and [U] (sic) were at grandparents.
Happened before camping
[The child] frightened [the father] will find out and hurt her
In the mother’s police statement signed on 21 September 2015, the mother provides the following account of this event:
29.Later that night I was laying (sic) on the bed with her trying to get her to sleep. [The child], out of nowhere said “Daddy touched my vagina like this”. At this stage she (sic) the light was off. I reached over and turned the lamp on. [The child] was wearing a night dress and a pair of undies. It was her grinch nightie and a pair of baby pink underpants with a white waist band and a unicorn on them. She lifted her night dress up, pulled her undies down at the front to just show the top of her vagina. I knew at this moment that something had really happened by the way she was demonstrating the action.
30.She had her index and middle finger on her right had (sic) together and did a rubbing motion down over her vagina. She then pulled them out quickly and her undies up. When she did this, she said it really hurt and that she told her dad to stop it. She said he was really angry and that he smacked her. I said, "Where were you?" she said she was in her bedroom. She said after he smacked her, he left the room. She went out after him, he smacked her again, put her back in her room and shut the door. I felt really bad for her and just gave her a big squishy hug. I did ask her where … (her dad’s partner) was. She said she was at … grandparent’s house. …
31.She asked me if her dad was going to find out what she had said. I told her that nothing was going to happen to her and that I would keep her safe, that she was not in trouble and that she could always tell me anything.
The mother returned to the police station again on 13 September 2021. The police records note the following:
On arrival [the mother] advised that she had further discussions with [the child] who disclosed that the incident took place in her bedroom. [The mother] stated that [the child] disclosed her father entered her room, touched her vagina and that it hurt, so he then smacked her on the bum, left the room, shut the door, before returning to the room and smacking her on the bum again.
[The mother] stated [the child] demonstrated the touching action as two fingers running down her vagina from starting at the top of the vagina.
This information was not supplied by [the child] during either [police interview] even under direct questioning.
The pre-text call on 13 September 2021
On 13 September 2021, in the presence of police, the mother made what is referred to as a “pre-text” phone call to the father.[26] The purpose of the telephone call was to challenge the father about the child’s alleged sexual abuse disclosure and hear his response. The father initially gave an incredulous laugh. In my view, this reaction must be seen in context, namely, this was not the first time such an allegation had been made by the mother. In 2017, the mother had accused the father’s mother of kissing the child’s vagina. The father’s initial reaction certainly could not be viewed as the father making light of the allegation, as the mother suggests. The police records in relation to the pre-text call include the following:
… During the call [the father] strongly denied allegation. When the [mother] would attempt to talk about other matters, [the father] did not hesitate to bring the conversation back to the allegation, seeking further information on the disclosures. [The father] requested to speak to his daughter, which [the mother] denied. [The father] did state during pre-text that approximately 1-2 months ago the victim child had a red/sore vagina and that either he or his partner rubbed bepanthen on her vagina as treatment.
[The mother] stated she is considering Private DV application.
[26] Exhibit 5.
On 15 September 2021, the mother was informed by police that the matter would go no further given the lack of evidence.
Child’s consultation with Dr L on 16 September 2021
On 16 September 2021, the mother took the child to Dr L, “because [the child] had made disclosures to me” and “her vagina was sore”. Dr L first diagnosed the child with vulvovaginitis in April 2021. At that time, the mother was advised to avoid the use of soap and to use a barrier cream around the outside of the child’s vagina. As already noted, it is common ground that the mother passed on this advice to the father. On 16 September 2021, Dr L’s notes indicate that the child had complained of an “itch/pain” and Dr L undertook a vaginal examination of the child including taking a swab from “introitus of vagina/hymen” and tested for sexually transmitted diseases (which were negative). Dr L’s notes include the following:
no fissures ulcers or other lesions of concern from a child safety perspective but also cannot rule out abuse.
Dr L also told the mother that the child’s hymen was intact.
Further, the mother’s trial affidavit states:
79.On Thursday, 16 September 2021 at 3pm, I took [the child] to see [Dr L] at [M Medical Centre] to have her genital region examined. [Dr L] took two swabs. During the procedure [the child] screamed. [The child] also had to give a urine specimen for the doctor. When I took [the child] to the bathroom to collect this she told me that the 'swab really hurt but not as much as daddy putting a finger inside my vagina'.
(Emphasis added)
Rather extraordinarily, the mother did not tell Dr L what the child had allegedly said. When cross-examined about her failure to do so, the mother said:
I didn’t feel like [Dr L] was as, maybe, experienced. When – when I asked her to, like, have a look at [the child’s] vagina, she didn’t actually examine it until I asked her. I said, “Would you mind just checking it externally as well as the swab to make sure it looks okay?”
And later:
I didn’t think that the doctor was actually as experienced and she seemed quite – I had to prompt her to do a physical examination of [the child’s] vagina, and I had to stop her from talking about this incident in front of [the child] because she wanted to ask questions, but I had been clear that I didn’t want [the child] to be grilled by a doctor because I didn’t want [the child] to be further traumatised, your Honour.
Despite the mother contending that she did not tell the doctor what the child had said in part because she did not want the child to be asked questions and further “traumatised”, the mother took the child back to the police on 21 September 2021 for a third interview. I further note that when the mother’s diary was produced during the trial (and after she gave the above evidence), her diary note does not record the child saying “swab really hurt but not as much as daddy putting a finger inside my vagina” but rather “told me swab didn’t hurt as much as daddy using his finger” (emphasis added). The mother’s statement to police signed on 21 September 2021 makes no mention of the child making any statement at all on 16 September 2021.
If the child did make a statement of the type alleged by the mother, I find it inconceivable that the mother would not have told the doctor.
The child’s third police interview on 21 September 2021
During the child’s third police interview on 21 September 2021, the following exchange occurred:[27]
[27] Exhibit 6 is an agreed transcript of the third police interview.
Police Officer: I heard you told mummy something. Did you tell mummy something?
Child: [nods]
Police Officer: Yip. Tell me everything about telling mummy something. Start at the beginning.
Child: It was about my dad
Police Officer: About your dad?
Child: Uhm…that [long pause]… daddy touched my vagina….
Police Officer: Uh ha
Child: And it hurt….and [long pause] and uhm….[long pause] and…uhm, I forgot
Police Officer: So, you said daddy touched my vagina and it hurt. Tell me everything about daddy touching your vagina, start at the beginning.
Child: Uhm…[long pause] it …uhm…it….it was in, my room…and [long pause] …mm…I forgot what I was going to say
Police Officer: You forgot what you were going to say?
Child: [nods]
Police Officer: Uh ha, okay. You said that it was in your room? Tell me more about that.
Child: It was um….um….um.. it was in the inside…[long pause] and I telled him to stop but he didn’t… and then he went out the room and then he went out to get some food and he came back in and he did it again..
Police Officer: And what happened?
Child: [pause]…I forgot the other parts
Police Officer: You said you were in your room, and he touched on the inside tell me more about him touching on the inside
Child: Um …um…[long pause] I forgot
Police Officer: Tell me what you mean by inside
Child: Um it was [long pause] um I forgot
Police Officer: Before you said “and it hurt” tell me more about it hurting
Child:I forgot that one too
Police Officer: Okay. Then you said daddy left and went to the shops and then he came back, and then I think you said, tell me if this is wrong and you said that he did it again is that right?
Child:[nods]
Police Officer: Yeah. Tell me more about daddy doing it again
Child:It was the same place that he did
Police Officer: The same place that he did?
Child: [no reaction]
Police Officer: Tell me what daddy did?
Child: [long pause] I don’t know
…
Police Officer: What you going to go do now?
Child: My mum said I can go to toy world
Police Officer: You’re going to toy world? Why are you going to toy world
Child: Coz I’m doing this
…
(Emphasis added)
In relation to this interview, I particularly note the following:
(a)The child’s comment that “it was in the inside” was made after the question “You said it was in your room. Tell me more about that?” which makes it dangerous to assume, as the mother does, that the child is referring to her vagina;
(b)It is curious that the child says – “I forgot the other parts” and “I forgot that one too”, which may suggest the child was repeating something she had been told to say or something that had been rehearsed;
(c)The child readily agrees with a suggestion that the father had gone to the shops when all she had said was that he had gone out of the room to get food, which tends to indicate the child is suggestible;
(d)When the child was asked by the police officer who she could tell if she felt scared or unsafe she again nominated the father as one person;
(e)The child states that she is going to Toyworld because she is “doing this” which tends to suggest the child has been offered an inducement to either participate in the interview or to implicate the father.
Dr L’s mental health referral to Dr R on 22 September 2021
At the mother’s request, Dr L provided a mental health referral for the child on 22 September 2021. The referral was to Dr R, a clinical psychologist. In the patient history provided by the mother, the following information is included:
…
[Mother] has noted [the child] has been extra clingy, has been saying everything is Mum’s fault. Has been hypervigilent.
…
[T]he other day told mum she wanted to kill herself(Emphasis added)
I note the absence of any evidence in these proceedings from the mother in relation to the matters highlighted above. I further note the observations of the child made by Dr L:
Normal appearance, neat dress and grooming
Happy affect.
Mood: good
Nil abnormal perceptions
Speech appropriate for developmental age.The child’s consultation with Dr R on 8 October 2021
It appears that the child saw Dr R on one occasion only, namely, 8 October 2021. During that consultation, Dr R’s notes include the following:
…
[The child] says everything was her fault
…
States (sic) at Daddy’s house. 11th September, Dad touched [the child].
[The child] Knocked over a cup of milk.
Was getting into trouble, thinks she is in trouble for talking about it.In a letter from Dr R to Dr L dated 13 October 2021, Dr R noted the following:
…
[The child] disclosed that she thought [she] was in trouble for talking about “it”. [The child] stated that she thought “everything was her fault”. …The mother was unhappy about Dr L’s management of the child (Dr L had referred the child to Dr R) and the child did not return to see Dr R.
‘S Counsellors’
On 3 November 2021, the mother attended an intake session with ‘Ms AA’ from an organisation called ‘S Counsellors’, with the intention of obtaining psychological support for the child on the basis that she was a victim of suspected child abuse. The records produced from that organisation include the following history, as provided by the mother to ‘Ms AA’:
• On Saturday September 11. 2021 Mum was in the kitchen cooking pancakes and [the child] disclosed to Mum that her Dad had placed his hands down the front of her underpants, touched her vagina and then placed his fingers inside her vagina.
• Mum had the child protection investigation unit (CPIU) card from a previous visit and contacted them.
• … Mum then has taken [the child] to [Suburb H] on Sunday 12th September to be interviewed.
• [The child] did not tell them anything at the first time however Mum took her back 1 hour later and she told the CPIU unit what happened.
• [The mother] did take [the child] to the doctor and she had a swab as well as her daughter to help her feel safe and comfortable
• [The child] said "The swab hurt but what Daddy did hurt a lot more"
• [The mother] said there was not enough evidence to charge Dad.
• Monday 13th September Mum tried to get Dad [the father] to admit it and he laughed
• [Suburb P School] has a copy of the temporary DVO and we have requested a copy.(Emphasis added)
In relation to ‘Ms AA’s’ notes, the following exchange occurred during cross-examination of the mother by counsel for the father:
So, ma’am, I’m going to suggest to you that [Ms AA] wrote down what you told her in a semblance of order based on what you told her. Is that fair?---That would make sense.
And what you told her, ma’am, that [the child] disclosed to you is entirely incorrect?---No.
[The child] didn’t tell you while you (sic) making pancakes that [the father] placed his hands down the front of her underpants, did she?---No.
[The child] didn’t tell you that he touched her vagina and then placed his fingers inside her vagina, did she?---She did but not when we were making pancakes.
And that’s what I’m saying to you, ma’am. In terms of what you told [S Counsellors], okay, and [S Counsellors] have written down, [the child] did not say to you whilst making pancakes in the kitchen with you that dad had touched her vagina and then placed his fingers inside her vagina, did she?---I don’t know why she has written it in that order.
I’m not asking you why she wrote that in order. I’m saying to you [the child] whilst making pancakes in the kitchen with you did not say to you that her father had touched her vagina and then placed his fingers inside her vagina, did she?---Not at that time, no.
Again, ma’am, I say to you that you are trying to exaggerate or place incorrect information in front of key people, the police and now [Ms HH] (sic) at [S Counsellors], for your own purposes. What do you say?---No. …
The mother’s version of events on 10 May 2017 bears little resemblance to the police observations or what the mother told them. For example:
(a)Contrary to what the mother now claims, she did not go out to the police when they arrived. She was in fact locked in the bedroom;
(b)The mother made no complaint of having been straddled by the father and choked until she passed out, or having been slapped by the father, yet she did tell them that the father grabbed her by the arms and held her down on the bed;
(c)The mother admitted to police that she had:
(i)slapped the father several times; and
(ii)taken his phone to stop him leaving;
(d)Contrary to what the mother now claims, she did not leave the property after assuring the police she was fine but rather, she verbally abused the father in front of the child and when they moved the father away from her, the mother abused the police and slammed the door in their faces.
The mother contends that she did not tell them about the father strangling her because she regarded them as corrupt but, even if that was the mother’s belief, she did in fact make a complaint to them about the father but it bears no resemblance to the incident she later accused the father of perpetrating.
During cross-examination, the mother made numerous concessions, including the following:
(a)In her application for a protection order, she lied about:
(i)Not being divorced from the father; and
(ii)Not being able to commence a new relationship because of the father, when she had in fact commenced a relationship with Mr E more than two years prior and it was continuing.
(b)That she accidently hit the child during the argument on 10 May 2017;
(c)That she took the father’s bank card on 10 May 2017 to prevent him leaving the house;
(d)That on 10 May 2017 she told the police they were corrupt and slammed the front door loudly in their presence;
(e)That at the time of this incident she had very significant mental health issues that caused her to become erratic and irrational;
(f)That she was at that time struggling with Obsessive Compulsive Disorder;
(g)That the father was struggling with how her mental health affected the relationship;
(h)That she had been taking medication for her mental health issues for 15 years by the time the child was born;
(i)That she had ceased taking her medication during her pregnancy with the child;
(j)That she stated on a number of occasions, (subsequent to the birth of the child) to various health agencies, that she had a “very healthy relationship with the father”, that he was “emotionally supportive”, that she was “fearful that the father would leave her” due to her erratic behaviour, and denied any domestic violence in her relationship with the father; and
(k)That she had lied to Child Safety when she said she had been diagnosed with PTSD as a result of domestic violence from the father.
During the mother’s interview with Dr B, psychiatrist, on 7 December 2021 the mother was asked if the police were ever called to the home because of relationship problems and the mother responded as follows:
Yeah, so one day the police arrived, and it was the day that he strangled me. I didn’t know if they’d arrive but after he done that I was going out to friends. I remember having a quick shower or getting changed, grabbing a bottle of wine out of the fridge and then just walking out the front door. As I walked out the front door they were there and they kind of said, ‘Is everything alright?’ I said, ‘Yeah, everything’s alright.’ I didn’t really … I did pretty well to hide I think what was going on because I didn’t want everyone to know. I didn’t want …
Dr B asked the mother if she knew who called the police and she responded as follows:
Since then, I reached out to a neighbour that used to live next to us in that street… I found this lady on Instagram, and I said, ‘I don’t know if you remember me but I used to live next door to you. I was just wondering did you call the police at any time?’ She said that she did, and she said that she thought that he was going to kill me that night and it sounded like he was trying to like torture me or something, so I must’ve made some noise.
The version provided by the mother to Dr B is yet another version of this incident that is inconsistent with police records. The mother did not call the neighbour as a witness in her case (despite saying she spoke to the neighbour about the incident) and provided no explanation for not doing so.
In the mother’s application for a protection order signed on 15 September 2021, the mother said the following:
In 2016 the police were called by a neighbour as she thought that [the father] was going to kill me. I told the police I was okay but left the house to visit a friend once they arrived. When I got home he was angry but punished me by ignoring me.
During cross-examination, when the mother was informed that there is no record of the police attending in 2016, the mother conceded that the incident said to have occurred in 2016 may have been in 2017. If it was the March or May 2017 incidents, it bears no resemblance to the incidents described in police records.
Prior to 15 September 2021, neither party had applied for a protection order against the other. On that date, the mother filed an application for a protection order in which she alleged that she feared for her life and for the lives of her children. The mother alleged therein that the father had threatened to attack her with a hammer and would “push, hit and throw items” at her and “strangled” her until she would pass out. The mother alleged that the father had threatened to kill her when she made the allegation against his mother.
The mother’s allegations of family violence are unlikely to be reliable. Her evidence on this issue is inconsistent and bears no resemblance to police records. In making this assessment, I am conscious of the mother’s admitted mental health issues at the relevant time, but it seems to me that the mother has been prepared to exaggerate, if not lie, about the father’s behaviour during the relationship in order to assist her in these proceedings.
In particular, I reject the mother’s evidence in relation to the following matters:
(a)That the father strangled her on 10 May 2017 or at all, given the complete lack of complaint to police on that date of such a serious allegation despite making other allegations against him, the absence of any observed injury on the mother by police, and her denial of domestic violence to various medical authorities on numerous occasions;
(b)That the father threatened to kill her when she accused his mother of sexual abuse, particularly given her admission that when she did raise it with him, he spoke to his mother about it;
(c)That the father threatened to attack her with a hammer when, during cross-examination, she said it was her piano he threatened to smash (I do not accept that he made such a threat either); and
(d)That the father perpetrated physical abuse upon her during the relationship given her repeated denials of domestic violence to various medical authorities and repeated statements that he was a supportive husband.
The mother unfortunately suffered significant mental health issues during the relationship, which the father understandably struggled with, and I accept that he sought appropriate counselling and medical assistance. I accept that the father felt trapped and guilt ridden and I find that he did his best in a difficult situation.
I nevertheless find that the child was exposed to family violence between her parents at least on 10 May 2017. The family violence was, in my view, situational and I do not consider that the child is at risk of family violence or exposure to family violence from the father in the future.
Does the mother presents an unacceptable risk of harm to the child by reason of her alleged intentional misinterpretation of a statement she says the child made (on 11 September 2021), allegedly encouraging the child to make statements indicating sexual abuse or allegedly fabricating such allegations, family violence or exposure to family violence, or the impact of any psychiatric illness on her parenting capacity?
The determination of the mother’s motivation in making the allegations of sexual abuse is complicated by her history of mental illness and likely significant personality issues.
The earlier discussion in these reasons about the child’s alleged statements which form the basis of the mother’s allegations is of course relevant to this issue.
The mother has a long history of depression, anxiety, and self-harming by cutting herself. She has been on psychotropic medication since 2001. The mother has been prescribed numerous medications, including Lithium to stabilise her mood, which the mother told a mental health assessment team in 2017 had all been unsuccessful. At the time of assessment in January 2017, the mother said she was taking 150 mg of Amitriptyline. In her trial affidavit, the mother deposed that she was taking Zoloft and in her oral evidence she said she was taking Cymbalta. The inconsistency is unexplained but both medications are anti-depressants and, according to Dr B, appropriate medications for the mother to be prescribed (although not together). The mother is also likely to suffer from significant personality issues related to her demonstrated propensity to lie. The mother’s lies have generally been very easily found out or readily accepted by her as lies. Her lies have certainly not assisted her in these proceedings, at least at trial.
In this context, I note that Dr B opined:
… The capacity of a person to repeatedly tell untruths or half-truths or to not give consistent answers to questions is as a result of a disturbance of personality. This syndrome of behaviour is a developmental outcome from adversity in childhood and adolescence which forms part of a person’s basic nature. It’s a way of living and being that they come to find suitable to cope and deal with life’s challenges. So it’s not a symptom of mental illness or schizophrenia or depression or anxiety disorder. …it’s a mode of communication and behaviour with respect to being loose with factual information, so to speak. And that could be said to be conscious and deliberate lying, but it also has a component that could perhaps have unconscious or insight-less components with respect to adversity and other traumatic events in childhood which could be at work in shaping, in this case, the mother’s behaviour …
…
I have concerns about emotional and psychological stability for the mother and concerns with respect to the full detail and credibility of her history as given to me at interview when I saw her on 7 December 2021. …
… I believe it’s true that she was employed at [BB Organisation] as a [social services] worker and was planning to study […] in mid- 2022, I have some doubts now about – and would want to seek a re-interview and review of this portrayal that she presented to me of functional stability, because I have – given what has happened before the court now, as I say, there’s doubt in my mind about the accuracy of her history.
Dr B was asked about the absence of corroboration of the mother’s account that the child suffered almost nightly nightmares and whether the mother might be projecting her own experience of nightmares onto the child. Dr B acknowledged such a possibility and said:
[That] would be, in my view, a most disturbed disturbing type of projection and unhealthy and not beneficial, and a cause of stress and tension and ongoing concerns that need some sort of intervention.
While Dr B was of the view that at the time he saw the mother in December 2021 she was in remission in terms of anxiety and depression, he opined that she was at risk of serious psychiatric illness in the future, depending upon the level of stress that she was under, and that may then cause a recurrence of high anxiety, depressed mood, and self-harming cutting behaviour. Dr B emphasised the importance of an appropriate management and safety plan should stressors cause an instability in her mental health. Dr B agreed that being required to send her daughter to the father, whom she professes to believe is a paedophile, would be a significant stressor. The risk of physical harm to the child was considered by Dr B to be low, even in those circumstances, although “in the presence of agitation and serious mental health disturbance and a lack of therapy that risk, … would be greater”. In this context, I note that the mother was referred, in or about January 2017, by her obstetrician, Dr FF, for psychiatric assessment as a result of her suicidal and homicidal ideation. During cross-examination, the mother conceded expressing such thoughts at that time and being distressed about such thoughts. I also note the father’s evidence, which I accept, that during the relationship the mother took knives into the bathroom and threatened to cut herself. I further accept that on one occasion, the father had to jump out the window to escape the mother.
In Dr B’s view, it is “essential” for the mother to be monitored by a psychiatrist and that she take psychotropic medication, e.g. Cymbalta, for up to two years, and then if things are going well, he opined that maybe the medication could be reduced, depending upon the progress.
Dr B’s prognosis was guarded, and even more so when advised of significant history not provided to him by the mother, i.e. the mother’s alleged history of childhood sexual abuse and alleged history of significant physical abuse at the hands of a former partner, Mr CC (the mother described to Dr B a happy childhood and said she and Mr CC had broken up because they just drifted into friendship). Dr B opined that the mother’s prognosis was very much dependent upon her access to therapy, response to therapy, and the outcome of these proceedings.
The mother did not inform Dr B about her previously self-reported history of childhood sexual abuse. The mother also seriously understated her previously self-reported history of family violence at the hands of the father of her other children. If this history is accurate, it does not seem that the mother has ever addressed these significant matters in therapy. If the history is not accurate, it suggests her personality issues are perhaps even more serious.
In my view, all of the matters discussed under this issue support a finding that the mother poses an unacceptable risk of emotional and psychological abuse to the child. For the child to grow up believing that she has been abused when she has not is more likely than not to result in significant psychological and behavioural issues in the future. I accept Dr C’s opinion in this regard. In coming to this conclusion, it is not necessary to find that the mother’s motivation in making the allegations of sexual abuse against the father was malicious, although that is certainly a real possibility. The mother’s history of mental illness and personality vulnerabilities certainly add to the complexities of any finding in this regard.
As already noted, the child has been exposed to family violence by her parents in the past but I do not find that the risk of exposure to family violence in the future by the mother is unacceptable.
I should mention, in particular, that I do not regard the fact that the mother has complied with the existing parenting order as mitigating the risk posed by her. The escalation in the mother’s behaviour, e.g. involving the child in creating letters to her teacher, and her stated beliefs during the trial that the father and his mother were paedophiles, cause me to have real concern about her functioning and are significant considerations in finding that she poses an unacceptable risk to the child.
Will the mother support the child’s relationship with the father in the event he is found not to pose an unacceptable risk of harm?
Counsel for the mother points to the following factors to support a submission that if the father is not found to pose an unacceptable risk to the child, the mother would support the child’s relationship with the father:
(a)The mother has complied with the February 2022 parenting Order made by consent despite her stated beliefs about the father and his mother;
(b)There has been a history of “a somewhat reasonable parenting relationship” from 2017 until 2021 involving a shared care arrangement;
(c)Despite the mother’s stated beliefs, she recognises that the child loves her father and needs to have an ongoing relationship with him;
(d)The mother now accepts Ms G as an appropriate supervisor.
It is not correct in my view that the parents had a reasonable parenting relationship from 2017 to 2021. There were ongoing issues about the child’s health, schooling, time spent with the father, extra-curricular activities etc. At least two mediations failed to resolve ongoing issues.
The mother also maintains that the child is fearful of the father when such a claim is not borne out by the evidence. The mother’s position reflects poorly on her stated commitment to the father/daughter relationship.
Despite the mother’s compliance with the February 2022 parenting Order, I am most concerned about the escalation in the allegations, including the notes purportedly written by the child and given to her teacher, the mother’s stated beliefs about the father and his mother being paedophiles who sexually abused the child for their own sexual gratification, and her pressing for a finding of sexual abuse by penetration of the child’s vagina. The mother appears to have a closed mind to the possibility that she may be wrong in her stated beliefs. Given the mother’s evidence during cross-examination that she did not trust Ms G to keep the child safe, I place little weight on the mother’s concession during submissions that Ms G could be the supervisor.
While the mother may comply with a parenting order in a strict sense, I am not satisfied that she would comply with the spirit of such an order. Such a situation would continue to expose the child to ongoing pressure to accept the mother’s unfounded beliefs, and thereby create an unacceptable risk of emotional and psychological harm to the child.
Should the parent with whom the child lives primarily have sole parental responsibility?
Having regard to my finding that the child has been exposed to family violence between the parents, the presumption in favour of equal shared parental responsibility does not apply.
While historically the child has been able to start school and obtain medical treatment, this has occurred in the midst of considerable conflict. The parents had very different views about the child’s literacy development, with the father of the firm view that the child should delay commencing grade one. The mother dismissed the father’s concerns. In turn, the father had the child assessed by Dr EE, a paediatrician, without the mother’s knowledge. Ms G took the child to the appointment. The child suffered from head sores and for a time there was conflict about the appropriate treatment. There has been conflict surrounding many other issues concerning the child, e.g. her attendance at ballet, the mother attending the school during the child’s time with the father etc.
The consequence for the child is that she has been exposed to the conflict between her parents for years and feels that she is to blame.
Of course, on top of that, are the allegations by the mother that the father is a paedophile.
In such circumstances, an order requiring the parents to make joint decisions about major long term issues is not in the child’s best interests. The parent with whom the child lives primarily should have parental responsibility.
what parenting order is proper?
Having determined the issues identified by the parties, it now falls to determine what parenting order is in the child’s best interests.
It is common ground that the child should have an ongoing relationship with both parents despite any findings made.
I have found that the father does not pose an unacceptable risk of harm but that the mother does pose an unacceptable risk. In those circumstances, the child should live with the father, but I am persuaded that the child should not be deprived of a relationship with her mother. How to fashion an order for that to occur is not without its challenges.
In my view, prior to the mother spending unsupervised time with the child, the mother should undergo therapy to address the following:
(a)Her propensity to lie about all manner of things is at times truly bizarre. Some of the mother’s lies are so easily established as false that any motivation for the lie is difficult to determine. It may well be the mother is a compulsive liar, which Dr B has opined is an issue of her personality that needs to be addressed. Many of her lies are truly monstrous and damaging, not only to the father and his mother, but also to the child. By way of example, some of the mother’s untruthful statements include:
(i)Falsely claiming that she had been diagnosed with PTSD as a result of the father’s violence towards her (the mother conceded this was a lie);
(ii)Falsely claiming that the father and his mother are paedophiles who sexually abused the child for their own sexual gratification (I have found such allegations to be groundless);
(iii)Falsely claiming in her application for a protection order signed 15 September 2021 that she and the father were not divorced and that “divorce papers are in the process of being signed” when the parents were divorced on 20 November 2020 (the mother conceded this was a lie);
(iv)Falsely claiming that she had no current referrals to either a psychologist or psychiatrist in respect of her mental health (the mother conceded this was a lie);
(v)Falsely claiming in her application for a protection order in September 2021 that she was unable to form a new relationship because of the violence perpetrated against her by the father (the mother conceded this was a lie and she had been in a relationship with Mr E since May 2019);
(vi)Falsely claiming in her application for a protection order that the father had threatened her with a hammer (under cross-examination the mother initially claimed that the father threatened to smash her piano and only when it was brought to her attention that she had previously claimed that he had threatened her did she claim that he did so);
(vii)Falsely claiming in her application for a protection order and reply affidavit in these proceedings that the father had strangled her until she lost consciousness (I have found such allegations to be untruthful);
(viii)Falsely claiming in her police statement that up until a few years ago the father did not have much to do with the child (the mother conceded this was a lie);
(ix)Falsely claiming in her trial affidavit that the father had a problem with alcohol and drugs (the mother has never before made such an allegation and the father was not cross-examined about the allegations. I reject the allegations as groundless);
(x)Falsely claiming that the child was scared of the father (the allegation is completely at odds with the delight clearly discernible in the child’s voice when speaking to her father in the recorded telephone conversations and her excited presentation when interviewed by child safety officers when discussing her father which included requesting them to ask the mother when she was going to see her father again);
(xi)Falsely claiming that the child was “triggered” by getting undressed in front of her classmates in preparation for swimming class (the falsity of this evidence is demonstrated by the evidence from the child’s teacher who describes the child being completely relaxed in that circumstance);
(xii)Falsely claiming to Dr B that in domestic violence proceedings involving her allegations against a former partner, Mr CC, “the court lost all my evidence, like my recorded statement, written statement, the footage out of the police station, everything” (the mother was forced to change her story when it was brought to her attention during cross-examination that her police statement was produced for these proceedings. The mother then claimed that the police failed to produce the documents at the earlier court hearing);
(xiii)Falsely claiming that the reason she did not include in her trial affidavit, her police statement, her application for a protection order, or in any complaint to police that the child had said she was scared and did not want to go to her father’s place (as at 13 September 2021) was because she had not written an affidavit before, when she had previously prepared affidavits both in these proceedings and in previous proceedings involving a former partner;
(b)The apparent failure of the mother to address her own alleged history of childhood sexual abuse between the ages of six and nine and again at age 12. I mean no disrespect to the mother by referring to this history as alleged but given the extent to which the mother has shown a propensity to lie I simply cannot be confident about anything claimed by the mother;
(c)The mother’s history of stress-induced anxiety, depression, self-harming, episodes of behavioural dysfunction, and loss of usual coping mechanisms is most concerning, as are her expressions of suicidal and homicidal ideation in the past;
(d)The mother’s serious psychiatric issues have the potential to increase the risk of parenting dysfunction and the onset of an acute situational crisis; and
(e)There is a real possibility that the mother’s psychiatric or personality vulnerabilities are projected onto the child e.g. that the mother’s nightmares become the child’s nightmares.
If the mother undergoes intensive therapy for a period of six months, I consider it likely that the risk to the child will be sufficiently mitigated such that unsupervised daytime visits could occur and very gradually increase, such that in two years’ time the mother could spend alternate weekends and half school holidays with the child. Pending the mother undertaking such therapy and providing to the father a report from her treating psychiatrist and psychologist, the mother should spend supervised time with the child for the maximum time available at a contact centre on one occasion each week, or, alternatively, for up to four hours each week supervised by an agreed supervisor.
I consider the limitations imposed upon the mother’s time with the child to be necessary in order for the mother to have time to address her mental health and personality issues, and also for the child to develop confidence in her own experiences of the father as a safe and loving parent and thereby enable the child to withstand any pressure from the mother that might undermine the child’s relationship with her father.
Given that supervision arises because of the risk posed by the mother, I consider it appropriate for her to bear the costs of supervision. The father will of course have the responsibility to provide for the child’s day to day needs (subject to any child support paid by the mother) including any ongoing counselling.
I do not consider more extensive time than alternate weekends and half school holidays in the future to be in the child’s best interests. The child requires a settled and stable environment while maintaining a meaningful relationship with both parents. I will, however, include a provision in the parenting order enabling the parents to come to their own arrangements should there be agreement in the future to extend the child’s time with the mother beyond what I propose to order.
The parents and the ICL have considered a variety of other provisions to include in an order and I have largely adopted those recommended by the ICL, the father and, in part, the mother. To the extent I have made any changes, they have been informed by what I consider to be in the child’s best interests.
I am satisfied that the father will take all steps necessary to assist the child to settle into his primary care. It will be a significant change for the child and I expect she will find the reduced contact with her mother very difficult, at least initially. However, the child has a close and loving relationship with her father and the father is ably supported by Ms G. The father also has a demonstrated history of seeking assistance when required. I am satisfied that the father will encourage an ongoing relationship between the mother and the child, despite the necessary restrictions on that relationship for the foreseeable future.
I stress that the findings I have made about the allegations of sexual abuse, in particular, have been made after a forensic consideration of all of the evidence. The fact that the mother has shown a propensity to lie and has a history of mental illness has made that determination more difficult but has not been determinative. An even more careful examination of all evidence has been required because of that history.
I can only hope for the sake of the child that the mother embraces therapy so that the child can enjoy an unrestricted and normal relationship with the mother in the future.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 23 September 2022
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