Launay and Kitanovski

[2019] FamCA 814

FAMILY COURT OF AUSTRALIA

LAUNAY & KITANOVSKI [2019] FamCA 814

FAMILY LAW – CHILDREN – discrete hearing as to the allegation that the father presents as an unacceptable risk of harm to the child by reason of sexual abuse – where the Court does not find the father presents as an unacceptable risk of harm to the child

Family Law Act 1975 (Cth), ss.

Rodelgo & Blaine (2019) FLC 93-897
M v M (1988) 166 CLR 69
Stone & Holmes and Anor [2017] FamCAFC 152

APPLICANT: Mr Launay

RESPONDENT: Ms Kitanovski

FILE NUMBER: BRC 4634 of 2017

DATE DELIVERED: 11 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 17 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms S Sinclair
Alex Mandry Legal Group

COUNSEL FOR THE RESPONDENT: Ms V Martinovic

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M Taylor

INDEPENDENT CHILDREN’S LAWYER: TLG Law

Orders

1. That these proceedings be adjourned for Case Management Hearing at 9.30am on 22 November 2019 in the Family Court of Australia at Brisbane for the purposes of receiving submissions as to:

   a)the future case management of these proceedings; and

   b)what orders for variation of the existing interim orders made on 27 June 2017 might be in the child’s, X born … 2012 best interests.

2. That each party file and serve by 4.00pm on Friday, 15 November 2019 a minute of further interim orders sought pending trial.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4634 of 2017

Mr Launay

Applicant

And

Ms Kitanovski

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of X (aged seven years) have been engaged in litigation since the father, Mr Launay (Country B born now aged 52 years) and the mother, Ms Kitanovski (Country C born now aged 49 years) were unable to resolve their parenting dispute after their final separation in December 2016.

2. The father’s application for week about time was filed in the Federal Circuit Court of Australia in May 2017, and amid allegations of the mother that X, then aged five years, was exhibiting sexualised behaviour in her presence, the parents entered into interim consent orders before Judge Coates on 27 June 2017 (“the said interim consent orders”).  Both parents were represented at the time.

3. The said interim consent orders provide for X to live with her mother; for the parents to have equal shared parental responsibility and for X to spend supervised time with her father from July 2017 “each alternate week thereafter from after school on Friday until 6pm on the following Sunday.”

4. Because of the serious allegations raised by the mother in May 2018 (dealt with more fully below in these Reasons), on 28 May 2018 the mother (without representation) filed an Application in a Case seeking suspension of the child’s time with the father and discharge of the orders for time made in June 2017.  The father’s Response filed 13 June 2018 seeking the mother’s Application be dismissed came before Judge Coates on 27 August 2018 when it does not appear any orders in relation to the mother’s Application in a Case were made.  Rather, time continued; the child was ordered to obtain counselling and the matter subsequently was listed for a two day hearing to commence on 8 April 2019.

5. The father, on 1 April 2019, filed an amended Application seeking a change of residence with the mother to spend time with X “conditional upon the mother engaging in therapeutic counselling… in relation to her inability to acknowledge that there have been no findings of inappropriate sexual conduct.”

6. On the day the trial was to commence, a Judge of the Federal Circuit Court of Australia transferred the matter to the Family Court of Australia – apparently because he took the view the matter was likely to take three to four days and should be considered for the Magellan list.  Between 8 April 2019 and 25 June 2019, this Court received the Magellan report; the matter was listed urgently before me and I ordered that the matter be set down for a discrete hearing “as to the allegation that the father presents as an unacceptable risk of harm to the child by reason of sexual abuse”.

7. The hearing took place on 17 October 2019 and the parties complied with the directions made by me on 25 June 2019.

8. A discrete hearing was ordered pursuant to the power to do so under the Family Law Act 1975 (ss 69ZQ and 69ZR) and the Rules and as recently considered by the Full Court in Rodelgo & Blaine (2019) FLC 93-897.

The findings sought

1. The father sought a finding that he does not pose an unacceptable risk to the child.  The mother initially in her case outlined filed 10 October 2019, whilst generally seeking a finding that the father poses an unacceptable risk of harm to the child, also sought two specific findings:

   “1.      That the father has sexually abused the child X...

   2.        That the father has exposed the child … to sexually inappropriate behaviours.”

2. In an exchange with Counsel for the mother (Ms Martinovic) and the guidance offered by the High Court in M v M (1988) 166 CLR 69, Counsel formally acknowledged that such a finding of actual sexual abuse could not be made and withdrew such an application.

3. The Independent Children’s Lawyer (“ICL”) was represented by Mr Taylor of Counsel and he submitted, both in the case outline filed 11 October 2019 and in final oral submissions, that the Court should find the father does not present an unacceptable risk of harm to the child by reason of sexual abuse.

4. The parties were the subject of cross-examination, as was the father’s former partner Ms Launay.  During the course of the evidence heard, reference was made to the alleged assistance offered by a friend of the father around bath time.  This friend, Ms D, had not sworn an Affidavit but was in the Court precincts.  The Court indicated she should be called as a witness, and with no objection and no earlier preparation, Ms D gave viva voce evidence and was cross examined.

5. Furthermore, the Court caused the child’s Police interview recorded on 19 May 2018 to be played in open Court and careful attention has been given to the child’s words in that interview.

6. In these Reasons which follow, I deal with the evidence in three phases, namely:

   c)the allegations of exhibiting sexualised behaviour;

   d)the allegations and circumstances arising from the Police interview and the investigations by Police; and

   e)events subsequent to the Police interview.

7. I will then put into the context of the legal principles that must be applied, the factual findings that arise in respect of this discrete issue.

Sexualised behaviour prior to May 2018

1. All allegations of sexualised behaviour in this case arise from observations made by the mother without any collateral corroboration or any third party observations.  The Court accepts this may not be unusual, save that for a little girl who has been exposed to child care at times since separation and to the school environment since at least February 2017, it is noted no evidence from teachers has been offered indicating that they have observed any sexualised behaviour of concern.

2. In these circumstances, the mother’s evidence of what she observed and how she assessed the behaviour is important to analyse.  Arising from her Affidavit filed 29 August 2019, the mother claims that:

   a)the first observation of sexualised behaviour was in the swimming pool at the end of December 2016 when the child “started rotating her hips and moving her pelvic region”.  The mother said she did not understand her daughter’s behaviour at the time “but reflected back to a conversation that I had with her in August 2016”.  It is alleged at that time (which was around the time the parents separated under the one roof), that the child went with the father to the beach and met his former wife Ms Launay.  X told the mother “she was looking out of a hole watching [the husband] and [Ms Launay] touching each other and [the husband] and [Ms Launay] riding a bike in a pink box”.  As the mother asserts (from paragraph 10), from December 2016 she saw the child “touching her vagina and role playing sexualised behaviour”, but did not start keeping notes until around 30 June 2017.  The father denies such contact with [Ms Launay] took place.  [Ms Launay] gave evidence and was cross-examined on her denial, and her general evidence that she only met X when the child was a baby and that she had not been with the father at the beach and had no contact with the father at all.  I accept the evidence of Ms Launay;

   b)I do not accept what X is alleged to have said to the mother as described at paragraph 13 to be true;

   c)The mother then asserts that:

   i)the father may have exposed X to sexualised behaviour whilst she was in his care (paragraph 11);

   ii)that the father allows the child to sleep with him and that the father “walks around the house naked in front of her” (paragraph 12);

   iii)when lying on the bed in January 2017, X was observed to be “touching her vagina”, the mother asked “where she had been seeing this” – a clearly leading question and the mother says the child said “Daddy was doing to [Ms Launay]” (paragraph 16).  I do not accept that X could have witnessed any sexualised behaviour between her father and Ms Launay.  I further do not accept the allegation that on or about 30 June 2017 X slept in the same bed with her father and Ms Launay;

   iv)On or about 17 July 2017, the mother says that when having a shower with the father, he took off his underpants and X touched his penis (paragraph 22);

   v)Paragraphs 25 to 40 contain further allegations of the child’s constant masturbating; tongue kissing the mother; “inappropriate” play with her Barbie dolls and strange play with a balloon in the bath;

   vi)At paragraph 40, the mother says on 4 March 2018 the father returned X from a visit and the child had a sore vagina – which the mother assessed was an infection.  The balance of the paragraph was an unwarranted criticism of the father that the father had not showered the child or was not spending time with the child.

3. The father, in cross-examination vigorously undertaken by Counsel for the mother:

   a)denied any inappropriate touching;

   b)denied exposing the child to adult sexual behaviour;

   c)gave a full explanation for the assistance he has received from his friend Ms D around shower time or bath time, in the various homes he has lived in after separation;

   d)denied contact with Ms Launay; and

   e)denied sleeping with the child for gratification sexually.

4. I regard the father as a witness of truth (save for one area) and do accept his plausible explanations – most of which are quite normal parental behaviours.

5. It is clear however that the mother’s consistent allegations about the child’s comments to her and how they suggest to the mother serious and inappropriate behaviour of the father, made him very anxious and cautious.  This is where the unexpected evidence of Ms D becomes, in the Court’s view, important in this case.

6. The Magellan report dated 8 May 2019 confirms that the Department of Child Safety, Youth and Women (“the Department”) received notifications on 26 June 2017, 6 July 2017 and 18 July 2019 about “sexualised behaviours” for which the notifier alleged the father was responsible.  All three notifications were treated as a “Child Concern Report” where the alleged harm is not serious enough for the Department to undertake an investigation and assessment.  The first notification was referred to the Police, but after they took a statement from the mother, no further action was deemed necessary by the authorities.

7. The evidence of Ms D was, as already noted, unexpected.  She had not been proofed by any party.  She was, in my assessment, believable, honest and frank.  She made a disclosure that night have been against “her interest” – namely that she was in a romantic relationship with the father between from some time in 2017 to the beginning of 2018.

8. I say this may be a disclosure “against her interest” because the father and Ms D attend the same Church and there is some suggestion that sexual relationships outside of marriage are not allowed by the teachings of the Church.  Reluctantly, but honestly, Ms D confirmed that sexual relations had taken place – a concession the father, when being cross examined, was unable to make.  This was damaging to his credit, although explainable.  He did not know at the time he gave evidence that Ms D was going to be called.

9. Ms D is the mother of four adult children who also works in hospitality (but not with the father).  She says some time in 2017, the father asked her to “help out” when X was with him around bath/shower time.  She has been available most occasions when X has spent with the father and has, I accept, developed a close relationship with the child.  She has never seen the father shower with X; she assists X to wash her “private parts”, although as she has gotten older X needs less assistance.  She does not stay overnight, but occasionally, if the father has to work late, she stays with the child until the father returns from work.  Although the “romantic” relationship ended over 18 months ago, she remains a friend of the father; they continue to attend the same Church and she continues to see X regularly.

10. Ms D gave evidence that she had not witnessed any sexualised behaviour by X.  She was not asked whether, when in her relationship with the father, it was possible that X may have witnessed affection (including having sex) between her and the father.  My very strong impression was that Ms D is a strong supporter of the father, but is a strong and independent woman who would not stand by idly if she saw anything inappropriate occurring between X and the father.

11. X did consult Psychologist E on two occasions on 6 November 2017 and 4 December 2017.  A report by Ms E dated 22 June 2019 is before the Court.  Ms E was not the subject of cross-examination and her notes are not in evidence.  It is apparent that the Mental Health Plan referral was for the purpose of providing therapy to:

    a)address any adjustment issues X may be expressing as it relates to her parents’ separation; and

    b)address concerns regarding X’s engagement in sexualised behaviour.

12. The contextual information provided to Ms E was provided solely by the mother.  Ms E had no contact with the father, nor did she have access to any of the then available family reports.  Ms E reported that:

    a)X was a curious, attentive young child and her play-based verbal communication and motor skills were developmentally appropriate;

    b)she did not exhibit any behaviour (i.e. physical, sexual or inattention) that required re-direction at any time;

    c)at paragraph 3.1.9.2 Ms E records words spoken by X on 4 December 2017 (the second session), which is similar to the “pink box: incident earlier mentioned, but with a very different story.  It included an allegation that “there was a man near me and put me in a bin”.  She mentioned a person she called “F from the talky houses” who both parents deny they know.  She mentioned seeing Ms Launay and Dad touching each other’s private parts when she was “in someone else’s house – the house next to the playground”, but did not provide any further information;

    d)There were no direct disclosures of inappropriate physical contact or grooming behaviours disclosed during the sessions.

The allegations arising in May 2018

1. At paragraph 41, the mother says that on Friday, 4 May 2018 she found X masturbating and when asked why she was doing that she replied:

   “I don’t know.  There is something in my head from watching Daddy and [Ms Launay].”  Thereafter in the shower the mother says X spoke about Ms Launay’s tattoos; that “G” has a different vagina from Ms Launay; and that she described “Daddy’s lack of hair”.  After the shower when the mother says she was “explaining to X not to touch herself anymore because that is not for small kids, only adults and parents”, the mother asserts X, for the first time said:

   “only Daddy touch me”

   and X went on to describe when it hurts.

2. The mother says she became “extremely distressed”.  She clearly accepted the truth of her then six year old’s statement and she contacted her older daughters to find out whether they had been inappropriately touched by the father (which they denied) and also spoke to her sisters and mother in Country C.

3. I am satisfied that at this point in time, the mother believed that the father had inappropriately touched the child and that, from that point, she was seeking confirmation in whatever way she could.  Clearly, despite the possibly “innocent explanation” for the words spoken initially, the mother discounted any innocent explanation.

4. As her Affidavit then explains, the following events occurred before the mother, on 25 May 2018, decided to suspend time and filed her Application in a Case to discharge the time orders, on 28 May 2018, namely:

   a)on 5 May 2018, when drying X after a shower, seemingly without prompting, X said:

   “I think I saw blood when Daddy touched me” and after a further clearly leading question about whether Daddy put his finger down in her “[vagina]” she replied “not all”.

   (See paragraph 43)

   b)the earliest appointment she could get with her usual general practitioner was on 9 May 2018, but after disclosing to the general practitioner her fears, the doctor referred X to the H Hospital.  The ICL tendered a copy of a surgery consultation recorded by Dr J (GP) on 9 May 2018, where no recording of an allegation of “touching” or “blood” is revealed, but rather that:

   “Main problem ongoing masturbation and Mum says has told her that continues to see him naked has seen several of his girlfriends naked and them having sex.  Some other more difficult to be sure of allegations also.  Needs Police and specialist medical services/child protection to be involved.”

   c)the note about the attendance at H Hospital on 10 May 2018 records the mother telling the doctor of X “accusing the father of sexual assault” since last Friday, however the only condition for which the child was treated or examined, was for a diagnosed “viral infection”.  The Hospital refused to do an examination, I infer, as sought by the mother, however she was told to report the concerns to Police “who would then organise the examination”;

   d)on 10 May 2018 at 10.50am, made a report to Police.  The ICL tendered the Police report.  It records the mother inter alia saying she:

   “…blames the father for this [sexualised] behaviour and made allegations that X father is touching her vagina ETC for the past 2 years.  Could not elaborate when, where, how ETC…”

   The mother is recorded as saying she “does not agree with Family Law Court order” and that she was “frustrated with Qld system and stated different from where she is from”;

   e)The Police say they had referred the matter to the Department when the mother rang again on 13 May 2019 to find out what was happening.  The mother expressed her concern that “no one is listening to her”;

   f)Although the discussion with Police initially occurred on 10 May 2018 (the same day that she attended H Hospital), it appears from the Magellan report that the mother had already contacted the Department the day before, 9 May 2018.  The report records a significantly different disclosure than the mother’s own evidence indicates.  The Department’s record says:

   “X has told her mother that her father ‘makes loves’ to girls in front of her; When in the shower, X points to different parts of her body and identifies where tattoos are on her father’s partners bodies; On Friday 4^th May, Ms Kitanovski found X in her room sweaty and playing with herself.  X told her ‘daddy touches her’ and points to her vagina;”

   This part of the recorded report did seem broadly consistent with early allegations the mother gives evidence about, but then what is recorded next is significant and different, namely:

   “X also told her that she is made to touch the other women and pointed to her breasts; X had stated to her mother that ‘she likes touching Daddy’, that she touches ‘Daddy’s sausage’ and that ‘he pees on her’; Last night X was touching her vagina in the shower and her mother observed that X’s vagina was swollen and red and X said it was a bit sore; X said daddy lets me touch him; X was asked ‘What does daddy say when you touch him?’ X hugged her mother tightly and said he says ‘keep going’.”

   g)This recorded information said to be given by the mother to the Department on 9 May 2018 was not put to the mother in cross-examination as appearing in her Affidavit as occurring AFTER she had seen Police and seemingly after she had discussed issues with her Psychologist.  The words in paragraph 47 are different.  It is likely that the consultation the mother had with her counsellor on 10 May 2018 might be highly relevant – but in my view, not to this discrete issue;

   h)I make the same observations as to timing when comparing the notification to the Department on 9 May 2018 (as they record) and some of the later allegations set out by the mother in her Affidavit at paragraphs 48 to 53;

   i)On 19 May 2018, commencing at 11.15am, the child was interviewed by Police.  By the time of this interview, on the mother’s version set out in her Affidavit, the mother had engaged with the child discussing these “touching” issues on multiple occasions – almost daily and often, on the mother’s own evidence, involving leading questions.  The s 93A interview relevantly included these statements by the child:

   i)Almost immediately the child, after being asked by Police “do you know why you’re here today?” responded “Daddy was touching me on my private part when I was in the shower.  I sent him to cook but he keep doing it but I say ‘stop straight away’”;

   ii)“I was in the bathroom, I was, I wasn’t in the shower yet.  He was just touching it when I was taking off my clothes when I go into the shower”;

   iii)When asked when it happened X replied “when I was on next, when I was on Friday, next Friday” but then it seems the child said it occurred before her birthday (which is in March 2019);

   iv)After a number of questions by the Police Officer relating to establishing the different areas of her “private parts”, she initially was uncertain where she says her father “touched” her on “the front”.  She was confused, by her answers, whether she had clothes on or not.  She said he put his “finger” initially outside her pants;

   v)By 11.39am (some 25 minutes after the interview began), the child was clearly distracted playing with a toy rocket.  She made a comment her vagina was hurting at the time and when asked why, she responded that “because when he broke it it was dirty stuff in there so then I was trying to wash it off and then Daddy just hurt it a little bit and I say ‘stop’ because it really hurts”;

   vi)She said, when asked what he did with his finger, “he was wiggling it like this” and that “inside” her private parts;

   vii)X agreed that her daddy went into the shower with his pants on to put the shower on.  There is evidence that in the father’s home (confirmed by Ms D) that the water taps are “strange” operationally;

   viii)The child responded to questions about frequency, saying it only happened “once”;

   ix)The child, when asked about “secrets”, talked about Daddy and Ms Launay “went in the pink box when I was in the rubbish bin” and that she saw them kissing and Ms Launay was naked – but not her father.  She said when she “came out of the rubbish bin and then there was a banana peel on my head”;

   x)Another “secret” seemed to involve the father and a woman named “F’ and a suggestion the child saw them taking pictures and her father had his “undies” on;

   xi)She said she had never had showers with “F” or “[Ms Launay]” but has had showers with her father;

   xii)X, in answer to the question “did you ever tell Mummy that something happened in the shower to you?” said “no”;

   xiii)The exchange between the Police Officer and X about X touching the father’s penis is quite disjointed, confusing and inconsistent.  Her allegation that the father “weed on my right hand” was inconsistent with her demonstrating on the video it happened on her left hand;

   xiv)When asked when this all happened, she said “next Friday” and then it happened “on the April on the sixteenth”.  She was unable to recall whether it was day time or night time.  She then said she touched his “private parts” when he had his “undies on” standing in the shower;

   xv)My impression was that by about 12.00pm (some 45 minutes into the interview), the child’s remarks became even more confused – speaking of the father giving her a “big, large unicorn”; and after she claimed she pulled her father’s penis out of a hole in his underpants the Police Officer asked her:

   “Did he say ‘leave it alone, I want to go to the toilet?’ to which X said “I think so”.

   xvi)In final questioning about whether she told the truth she nodded.  Then when asked “do you think Daddy intended to do wees on you, or was that an accident?” she replied “accident”.

1. Counsel for the mother, in final submissions, says the s 93A interview establishes, prima facie, the father had sexually abused the child.

2. Whilst I have concerns about the number of separate, inconsistent and, seen alone, troubling statements made by the child, I am not satisfied that, taken as a whole, they established, as the mother seems to believe, that the father did sexually abuse the child.

3. Although the Police and the Department have not assessed the evidence as substantiating harm or abuse, and certainly the Police did not decide to prosecute (although they did interview the father), I have made my assessment on all the evidence.  The Court does not merely rely upon the assessment of authorities – as skilled and expert in these issues as they might be.

4. The child gives all the appearance by her words, that she seeks to please and perhaps tell the questioner (be it the mother or Police), what she thinks they may wish to hear.

5. There is nothing in the interview by the Department officers with either the father (on 25 May 2018 and 31 May 2018) or Ms D (on 6 June 2018) inconsistent with the evidence they give to the Court.

6. By 26 May 2018, the Queensland Police had determined, in their view, the allegations were “unfounded” and by 6 June 2018 (after the Department had also interviewed the child at her school) the Department determined that the child was not in need of protection and that the allegations of abuse were not substantiated.

Events after May 2018 determination

1. The mother, after the Police interview, presented the child to the H Hospital on 21 May 2018 when an examination was conducted but no conclusive result was reached.  The mother says that the doctor told her that “due to the delay, there may not be any physical evidence of [the husband] interfering with X”.  The delay was less than a month – allowing for the uncertainty of the date arising from the child’s initial disclosure to the mother on Friday, 4 May 2018.

2. The mother alleges that X has continued to exhibit concerning sexualised behaviours and make concerning comments since May 2018, and says that:

   a)on or about 4 June 2018 she found the child masturbating;

   b)on or about 17 September 2018 the child told her she was in the shower with the father, and he was naked.  The father denies this occurred and, if the evidence of Ms D is accepted (which I do), then it could only have occurred on the rare occasion Ms D was not present for the evening shower.  On that night the mother found the child “touching herself”;

   c)On or about 25 November 2018, X is alleged to have told her sister Y about seeing Ms D naked and her father naked.  No direct evidence from Y was offered to the Court, so that this allegation could not be properly tested; and

   d)The mother gives further evidence of the child masturbating in her home at paragraphs 66 and 70; about seeing the father naked and sleeping with the father.

Principles to be applied

1. It is worth noting that the father in this case is not said to have been involved in any concerning adult sexual behaviour (e.g. use of pornography; extreme sexual practices etc.).

2. The Full Court (Thackray, Kent and Watts JJ) in Stone & Holmes and Anor [2017] FamCAFC 152 identified some principles which give guidance to trial Judges at [34] to [38] which I incorporate in these Reasons:

   “34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

   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.

   35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].

   36. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

   the standard used by the Family Court 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”.  In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   37.      As an eminent former judge of this Court has said (emphasis added):

   … unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …

   38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).”

3. In giving “real and substantial” consideration to the facts of this case, it is important to consider the chronology of events as set out above.

Discussion

1. The child’s sexualised behaviour involves constant masturbating and I understand the mother’s concerns.  No other person has observed this behaviour which may mean (since the mother has so consistently sought to stop the child) that the child feels self-soothing in the mother’s home is permissible.  Sadly, school age children are exposed to a lot of sexualised messages in their wider environment.  The mother was quick to lay blame at the feet of the father – and her evidence does suggest a degree of pre-occupation with the father’s past or recent female friends.  Simply put, the words spoken by X about the pink box; seeing nude girlfriends of the father and/or showering with them have not been established as having a factual foundation or real opportunity.

2. I have carefully analysed the Police interview.  There is no doubt that preceding that interview the mother had many discussions with X.  It was not put to the mother, nor do I find, the mother “coached” the child – however this little girl was involved in many discussions about her father and the reasons she “touches” herself.  There is a very real concern and I find that the child’s interview (perhaps innocently) was contaminated to some degree by the mother’s prior questioning.

3. There are too many variations and inconsistencies in the remarks by the child, even to the Police, to enable me to be satisfied that the father has, as the mother believes, behaved inappropriately with X.  Innocent touching during bath time of young children so easily can occur.

4. A parent who hears comments, such as the mother did on 4 May 2018, cannot simply ignore them.  However, sexual abuse allegations by young children are often fraught with unreliability due to the young age; developing verbal skills and abilities to link time and place with accuracy.

5. I agree with the submissions of the ICL, adopted by the father’s solicitor, that the evidence does not establish that the father poses an unacceptable risk of sexual harm to the child.  I also do not find that the father has exposed the child to sexually inappropriate behaviour.

So what happens next?

1. Although I accept that the issue of whether or not the Court finds the father poses an unacceptable risk to X is not the only issue, as the most recent family report of Ms K (filed 22 March 2019) makes clear, her recommendations are critically based on whether such a finding was made or not.

2. The father now advances a case that X should live with him because the mother poses a risk of emotional harm to the child and/or cannot support or otherwise minimises the child’s relationship with him.  I made it clear to the father’s solicitor Ms Sinclair that the discrete issue process was not to look at these additional or broader issues.  The child has always primarily lived with the mother.

3. I accept the father says that the mother holds an immovable and entrenched view that he has sexually abused X, and that as a result she will not be able to genuinely accept the finding now made by the Court.  With respect, that is still a matter to be determined.

4. Although the mother did consistently depose to accepting that what X told her was true – because she believes her daughter and, I suspect wants her daughter to feel believed to support her relationship with X – in cross-examination when the Bench directly asked her whether she believed the father was capable of such acts – she was more equivocal.  In fact, she retreated somewhat to acknowledging she could not know for certain because was not there.

5. Although I heard no submissions on the issue, the foundation for the mother’s Application in a Case filed 29 May 2018 to discharge the earlier (and existing) interim time arrangements has been extinguished.  On the next date I will hear submissions as to its dismissal formally.

6. This matter will not be able to proceed to a final hearing, if that is still necessary, until mid-2020.  I express a concern, which I have previously, that the important issue now dealt with during the discrete hearing, has impeded any consideration of further extending the child’s time with the father – including school holiday time.  With the end of term four school holidays fast approaching, the Court regards it as in the best interests of X that consideration be given by the parties to varying the current interim arrangements.

7. Accordingly, the matter will be listed before me at 9.30am on 22 November 2019, so that the Court can take submissions as to:

   e)the future case management of these proceedings; and

   f)what orders for variation of the existing interim orders made on 27 June 2017 might be in X’s best interests.

8. I will direct each parent to file and serve by 4.00pm Friday, 15 November 2019 a minute of further interim orders sought pending trial.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 November 2019.

Associate: 

Date:  11 November 2019