Lindsay and Baker

FAMILY COURT OF AUSTRALIA

LINDSAY & BAKER

[2010] FamCA 421

FAMILY LAW – Children – With whom a child lives – Where sexual and physical abuse allegations are made against the father – Where almost every expert concluded that there was insufficient evidence to prove the child is at risk in his father’s care – Whether accommodation syndrome explains the child’s behaviour towards the father – Child ordered to live with the father

APPLICANT:

Ms Lindsay

RESPONDENT:

Mr Baker

INDEPENDENT CHILDREN’S LAWYER:

Mr Damien Carter

FILE NUMBER:

BRF

11130

2003

DATE DELIVERED:

28 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

15, 16, 17 & 18 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self Represented

SOLICITOR FOR THE RESPONDENT:

Self Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Frizelle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Lawyers

Orders

The Applicant’s application is dismissed.
That the child B born … October 2002 live with the father.
That the father have sole parental responsibility for the long-term and short-term care, welfare and development of child.
That pursuant to Section 65L of the Family Law Act 1975:
(a)the mother spend time with the child on a week day to be nominated by the Senior Family Consultant of the Family Court of Australia Brisbane Registry, once a fortnight for two hours after school in the Court precincts;
(b)such time and compliance with these parenting orders is to be supervised by Ms B or another Family Consultant as nominated by the Senior Family Consultant, with the father to deliver and collect the child;
(c)the parties shall do all things, sign all such documents, attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for such supervision;
(d)the Family Consultant shall prepare a report, in respect of the supervision, and contact with the parties and child and it is requested that such report be available prior to November 2010; and
(e)the Family Consultant is at liberty to consider any or all documents in this matter which the Family Consultant considers would be of assistance in preparing the report.
That the mother spend time with the child on a week day in the off week after school for two hours supervised at a Contact Centre – subject to the Independent Children’s Lawyer being able to organise a Contact Centre for this purpose.
That the Independent Children’s Lawyer endeavour to ascertain a responsible adult approved by the Independent Children’s Lawyer who may be able to supervise the mother’s time with the child between the hours of 6:00 am and 9:00 pm on Saturday or Sunday.
That the mother attend further psychiatric counselling in relation to her allegations against the father with a professional approved by the Independent Children’s Lawyer and that a report be made by the said psychiatrist and/or psychologist.
That the mother be permitted to send letters, cards and gifts to the child.
That the matter be brought back before the Honourable Justice Bell no later than 30 November of this year for review.
The parties be at liberty to apply to re-list the matter on forty-eight (48) hours’ notice to the other parties with regards to any variation of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Lindsay & Baker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF11130 of 2003

MS LINDSAY

Applicant

And

MR BAKER

Respondent

REASONS FOR JUDGMENT

This is a case which has been subject to this Court’s jurisdiction since about the year 2003 when the child of the relationship between the applicant, Ms Lindsay, and the respondent father, Mr Baker, was about one year old. The child’s name is B and he was born in October 2002.
The evidence of the mother, who is the applicant, is set out in her extensive affidavit of 8 February 2010 and from such affidavit and a chronology, which I’ll be setting out hereafter, the extent of the Court’s time which has been taken up with this matter is clearly set out. At no time were the parties ever married and/or lived in a defacto relationship. The relationship appears to have started somewhere in 2001 and finished around about March 2002, shortly after the child was born.
The father had some contact with the child, about six months after its birth, by visiting the home of the applicant mother. She says, and I see no reason to not accept this, that she eventually indicated to the father, about March 2003, that she did not wish the father to spend any more time at her home, but he should have some form of spending time with the child at the Children’s Contact Centre at C, where I believe both of the parties were at that time residing.
It is alleged by the mother, and it appears to have been accepted by the father, that he’s had a history of drug addiction but that such drug addiction appears now to be totally under control and has been under control for some time. I have indicated before that I intend to refer to a chronology and from the Case Information Document filed by the Independent Children’s Lawyer, who was appointed pursuant to an order of this Court dated 9 March 2010, I have extracted the following.
As I have indicated, the parties were living in C and it appears that on or about 16 October 2003, Interim Orders were made in the Local Court in the State of New South Wales, that interalia the child reside with the mother; the parties have joint responsibility for the long term care, welfare and development; they each have responsibility for B’s day to day care whilst he’s in their care and the father to have contact each Sunday for a period of two hours between 12 noon and 2:00 pm. The child should be collected from the residence of Mr and Ms T and returned to that residence at the end of the contact.
For a period of approximately seven months, it appears that the father had contact with the child at the C Contact Centre up until May 2004. A further application was filed by the father in February 2004 seeking orders that the child be restrained from leaving Australia and a watch list order was sought. A Contravention Application was filed on 2 February 2004 in which the father alleges that the mother failed to comply with the order of the Court in relation to the child being able to be picked up at the residence of Mr and Ms T aforesaid.
Orders were made restraining the parties from removing the child from Australia, an airport list watch was ordered and each party was restrained from applying for a passport on or about 9 February 2004. A further Application for Contravention was filed on 11 March 2004, alleging that the mother had failed to provide B for contact each Sunday for the aforesaid period. The father had some contact in March 2004, and on 30 June 2004 further orders were made at the Family Court of Australia in Coffs Harbour wherein the child was to reside with the mother. She was the person who had the sole parental responsibility. The father was to have supervised contact with the child at Interrelate Contact Centre at such times arranged by the centre as directed. This appears to have been enjoyed by B – see pages 403 and 411 of the Exhibit Book.
The mother filed a Response in June 2004 seeking orders that the father have supervised contact at Interrelate Children’s Contact Centre, such contact to be supervised until the child reached the age of three and a half years. Such contact to be conditional upon the father undertaking and completing a parenting course and remaining drug free. She further sought orders that the mother be permitted to travel with the child overseas provided she provides the father with evidence of a return air ticket and itinerary.
There had been some appointments made by the father for urine samples and these indicated that he was free from addiction to the drug of his choice, previously that being heroin. There are other machinery provision orders had been made and eventually the father was permitted to go on outside excursions with the child, B, with a staff member from the contact centre.
Another application was filed by the father on 30 December 2004, I say in passing this just shows the enormous amount of pressure that has been brought to bear not only upon the parties but also upon this Court by the applications. The father’s application of this date sought that the child reside with the mother and that he have contact every second weekend from 9:00 am Saturday to 12:00 pm Sunday and in each alternate week on a Thursday from 9:00 am until 5:00 pm.
Further, other orders were sought including telephone contact, the child at this stage being about two years of age. This continued for a comparatively short period when the mother indicated that she was of the view that the child’s contact with the father should once again be supervised. This being, as I understand in accordance with the chronology, in or about the month of February 2005, mediation was undertaken by way of phone. A further order was made in the Family Court of Australia by Registrar Spelleken on 11 April 2005 wherein a Family Report was prepared and further other machinery orders were made.
The mother, in May 2005, sought an order that she be permitted to relocate to Brisbane and once again sought supervised contact for the father for the periods particularised in her response to the father’s application. The first of the Family Reports was filed on 25 July 2005 and further material was put before the Court including affidavits and Amended Application. The Amended Application of the father of 5 August 2005 sets out extensive orders which the father sought and in effect it was an order seeking the child reside with the mother save for periods which he particularised as being three days per week from 9:00 am to 5:00 pm interalia.
On 23 September 2005, a further Amended Application for Final Orders was made by the father endeavouring to cause the mother to live in the C area and further orders in relation to contact, in this case being almost a form of shared parenting. The mother opposed such order by her Amended Response of 20 October 2005 and sought, once again, further orders in relation to relocation, contact but such contact be supervised at the Lismore Children’s Contact Centre, she wishing to move to this area.
I came into this matter, firstly, in October 2005 some four and a half years ago in which orders were made, and I emphasise by consent, that the child reside with the mother; that it be noted the father proposed to relocate his residence to Brisbane seeing the mother had relocated there and it ordered interalia that the mother be restrained from relocating the residence of the child to outside of an area of 100 kilometres of Brisbane and that the father have certain times of contact. The contact being supervised save upon the father relocating that he have certain unsupervised periods of contact.
Immediately subsequent to this order, two days in fact, the mother alleges that the child made disclosures in relation to forms of inappropriate behaviour on the part of the father in relation to the size of the father’s penis in comparison to the size of B’s. The mother observed that the child was, at this stage, attempting to insert a screwdriver into his anus and made statements about the size of his penis. I say in passing at this time the child was some three and a half years of age.
A further unsupervised contact with the father took place in November 2005, after which the mother discloses what she alleges are further complaints on the part of the child where the child indicated that he had not had a nice time and that his bottom hurts. His behaviour, according to the mother, became very difficult.
Christmas 2005, the child B says to the mother, “drinkies” and “daddy is not my friend”. On 27 December 2005, the first of the allegations of “Daddy tasting my poo poo” came about – the mother alleging the child says “Daddy likes to taste my poo poo”. The mother having asked the child if he did this in the car – the child replies “No, on the mat in the bathroom at [V’s] house”. The child, she says, tells her that he said to his father “No, stop it, I don’t like it and Daddy did not stop”.
The child alleges that daddy was wearing a blue shirt and the father said to him “Go to the bathroom and let me taste your poo poo”, which is the mother’s allegations. I make it quite clear with the assistance of my legal associate, I have had extracted from the evidence and from the transcript the disclosures made by the child, to whom they have been made and when and I am exhibiting them to my Reasons for Judgment. I also refer to annexures to Ms S’s report at pages 830 and 831 of the exhibit books.
Further allegations in relation to “poo poo” were made in January 2006 at which time the father relocates to Brisbane. The father indicates that he wishes to have contact with his son in accordance, as I understand it, with my order made in October 2005. These endeavours on the father’s part were fruitless and the mother first of all had moved from her residence – the residence of E, her daughter by a previous relationship. He endeavoured to telephone her residence – the phone was unanswered for four hours.
By January 2006, the father received information the mother was not going to proceed with contact. He was unable to contact the mother for some time until about February when she indicates to the father that she will not allow any more unsupervised visits, alleging that the child had told her what the father had done to him. A Contravention Application was filed on 8 February 2006 in which the father sets out particulars of the dates which he alleges the mother has failed to allow him to have contact with the child.
Complaints were made to the mother since in or about the month of March, it appears the Queensland Police Service advised the mother they were investigating her. She files further material. In April 2006, Federal Magistrate Baumann orders that an Application for Contravention on the part of the father referred to here beforehand and a further application by the mother for variation of the order be transferred to the Family Court of Australia.
Further machinery orders were provided, in particular, in relation to an Independent Children’s Lawyer and the filing of affidavits. Restrictions were put upon the parties of referring the child to therapeutic intervention such as counsellors and psychologists without the prior consent of the child’s representative.
Mr R prepared a report which was released, as I understand it, on 15 June 2006. His recommendations were interalia that there be regular parenting time with the father so long as he remains drug free and continues residing in Brisbane. It is further suggested that there be counselling in relation to the mother in assisting her to manage the reported sexualised behaviour by the child.
By August 2006, an affidavit of the mother indicates that there are further disclosures by the child to the effect that “I didn’t need to go to the toilet. I do not need to do a poo. Daddy didn’t taste my poo”. She saw the child attempting to put his finger into his anus. That he asked the mother whether she wanted to play with his penis and it goes on and on. It is alleged by Mrs Lindsay Snr, who is the maternal grandmother, that she witnessed B attempting to insert a screwdriver into his anus in October 2005, this affidavit being filed on 7 August 2006.
He also made disclosures to her in the about his penis and the size thereof. An affidavit of E, the daughter of the mother, was filed in November 2006 where she indicates that B has had conversations with her alleging that his father eats his poo poo. Further orders were made by the Family Court of Australia as to contact by the father by Registrar Spelleken. Obviously these were not complied with as an Application for Contravention was filed on 29 November 2006. She filing an affidavit thereto which she indicates that she was certain that B had been sexually abused after the disclosures of about 27 December 2005.
At that stage the affidavits did not disclose any further descriptions of the alleged sexual abuse. A further Application for Contravention was filed in January 2007. An affidavit of Ms A of the Brisbane Children’s Contact Centre was filed annexing her report recording that the child consistently played comfortably with Mr Baker, the father, and appeared cheerful upon leaving the centre.
The mother had consistently reported to the Department of Child Safety allegations of abuse and between the years 2005 and 2007 there was no substantiation, since the Department was of a view that the concerns in those reports did not meet a threshold for a notification. On 16 February 2007, the mother filed her affidavit in chief in which she repeats the allegations referred to before and a report of Mr R was released on 26 February 2007 immediately before the trial which took place on 27 February 2007 before Justice Carmody.
I note in Mr R’s report, see 8.2.2, that he is of the view that the comments in respect of issues of sexual abuse argued by the mother to be indicative of sexual abuse are not necessarily indications or even strong indicators of sexual abuse. The trial took place before Justice Carmody on 27 and 28 February 2007 and I refer to his Reasons for Judgment in which he has set out, I hope, the facts which are similar to mine.
His Judgment was delivered on 15 March and interalia he ordered that there be specific graduated periods of time including daytime and overnight contact with the father. He, of course, was concerned about the ability of the mother to encourage and facilitate a close and continuing relationship between the child and the father. The mother appealed and the appeal was unsuccessful - it being dismissed on 26 October 2007.
The father was off again with Contravention Applications in November 2007. The mother has made numerous complaints to the Minister of the Department of Health and Children’s Safety. As a result, thereof, I think there have been at least two full investigations into her complaints. In particular, there is an investigation carried out by Ms Y and I will be touching upon that at a later stage.
Once again, there is a continuous attempt on the father’s part to have contact with his child in accordance with the orders of Justice Carmody. A recovery order was issued on 12 February 2008. A Child Concern Report was prepared by the Department of Child Safety on 14 February 2008 and on 27 February 2008, notwithstanding the mother’s complaint that this was not a consent order, it was ordered that the child was to live with the father and the mother to spend time with the child Tuesdays and Thursdays after school to be supervised by a Family Consultant in the Court precinct.
She was also to attend upon a Ms G, a clinical psychologist. The mother was assessed by Dr U who was of the opinion the child was being emotionally damaged by the course that the litigation had taken, if it had not I would have been surprised. She was of the opinion that the mother suffered a diagnosis of adjustment disorder with depressed mood and she was of the belief that her son was in a position of considerable danger.
Dr U was of the opinion, with whom I agree, it was highly improbable that the mother will ever be able to facilitate contact between the child and the father. She again advised the Department of Child Safety in March 2008 of the sexual abuse on the child, however, there was evidence from Ms L in March 2008 that there was a close relationship between the child and the mother. In March, the mother consented to attend upon a psychologist on at least once per month, which I don’t think she has done.

The mother was ordered to spend time with the child every Friday from 2:55 pm until 6:00 pm each Saturday – that was in May 2008. Ms J’s report was dated 16 June 2008 and she recommended that the child live with the father and that consideration be given to contact between the mother and the child. On 21 June, I believe that this was the first time in 2008 where it had been disclosed by the child that the father had threatened to shoot him if he told the truth about this matter - once again the Department determined not to further investigate this matter.
On 26 June 2008, a 93A statement (see the exhibit books at page 446) concludes that the mother was attempting to intimidate the child into making disclosures in gaining custody. An affidavit of Ms H was filed on 26 June 2008, who observed the time spent at the contact centre between the mother and child. On 12 July 2008, a child protection notification was recorded.
The father was interviewed on 12 July 2008 by Detective F, of the Child Protection Investigation Unit. An affidavit of Ms J was filed exhibiting her report of 16 June 2008. On 12 July 2008, B was interviewed by the Department of Child Safety and made no disclosures. A thorough assessment was recommended, this being the one to which I have referred, in fact it was the first of two assessments on the part of the Department of Child Safety.
Further applications were made by the father and eventually on 11 August 2008 he filed an application for a location order because the mother had disappeared with the child and the mother had kept herself secreted and kept herself and the child out of the way until about the month of November, when the child was recovered. On 21 November 2008, the Family Court of Australia discharged previous orders that the mother spend time with the child and that there be a moratorium upon her contact for a period of two weeks and then contact for a period of four weeks solely by telephone and introducing a passage of supervised contact at P Contact Centre.
There were, I believe, two discs of evidence tendered to this Court, which is most unsatisfactory to the Court, but I was able to see one which was a video and the other which was solely audio. The mother has touched upon the child exhibiting signs of distress in the video in which he tends to move towards a corner. I am also of the opinion that this would be, in effect if I might say, normal behaviour for a child which has suffered such a terrible existence over a period of many years.
The audio recording is quite sad in that it was indicated to the child that he was to go with his father after he had been removed from his father for about three months and he exhibited signs of distress. My heart bled for him having been put in such a position by the mother and notwithstanding that B made no disclosures, he was returned to the father – that was on 20 November 2008.
Ms O prepared an Assessment of Harm Sheet on 13 February 2009 and she concluded the Department could not conclude that he had suffered sexual abuse. A Magellan Report was delivered to the Court by the Independent Children’s Lawyer on 14 February 2009 and it came to the conclusion that the orders to place B in the care of his father was placing B at risk. The Magellan Report also assessed that B would be emotionally damaged by the course of litigation in the Family Court of Australia and there was risk of further harm during ongoing proceedings.
The Department advised that it could not be assessed that the child had suffered harm caused by sexual abuse by the father. Ms B prepared and filed a Family Report on 24 February 2009, recommending that there be supervised contact under section 65L. Then on 23 March 2009, Ms W, who had been involved in this matter, came to the conclusion that B had probably been sexually abused by the father. She had no disclosures by the child since she had not seen the child at any time and had no interviews. She relied, as I understand, in coming to her opinion, upon the assessments which had already taken place.
On 25 May 2009, Ms W was of the view that a holistic report be provided. She did not interview the mother or the father and it appears that at that stage, none of the reports or Judgments of the Court or any reference to the Family Court proceedings were considered. However, something which I do not believe was brought to the attention of this Court but is now brought to my attention, are handwritten notes were produced at page 393 of the exhibit books in which it appears on 19 June 2009, Ms W was present with Ms HY and Ms DS and in this interview notes have been taken in handwriting – we are not aware of who did the notes, however Ms W was present – at page 397 there appears to be evidence wherein B has been reported as saying “How can we kill Daddy? Can we tie a bomb to his back?”
Further, “Can we climb up the top of the contact centre and drop a rock on his head? If we die together, will we go to the next world together? Daddy is a nightmare”. These matters do not seem to have loomed at all large in Ms W’s evidence that I will touch upon very briefly at a later stage, wherein she came to this conclusion that the child had been, is and will in the future be sexually abused by the father.
A further report from Ms B indicated that she was of the view the child continue to live with the father and that he enjoys supervised time with the mother at a contact centre. The O State School Report was put before the Court in which on 22 July 2009 they indicated that the child had improved considerably in his school work and that is exhibited to the affidavit of Ms HA, the Deputy Principal of the school.
On 29 October 2009, Ms Y was instructed to prepare a full holistic assessment of the matters that had taken place in relation to B and she was given a period, I think, of 10 days and she completed her report on 11 November 2009. Her recommendation is for closure of the report and in particular she did not believe that B, on all the material before her, is in need of protection. She does not believe that he was at an unacceptable risk of harm in the near future by the father and the final report of Ms B was released on 3 February 2010.
A further Magellan Report on 2 March 2010 refers to the five Child Concern Reports between November 2005 and February 2007 and further, it records the view that the child has been assessed at not being at risk in the care of his father. The document indicates that the Department has a long, extensive history of involvement and it provides a chronology of notifications, assessments and conclusions.
Needless to say from this chronology to which I have referred, there has been an enormous amount of time and effort put into the allegations made by the mother. May I say in passing, that notwithstanding various people have found that there is no risk to the child by the father, that I am of the view that the mother has a genuine belief in the fact that B has been sexually abused by the father. This is almost, although there is no evidence to support this, but in my experience, a hysterical reaction to the facts.
Regrettably she cannot see that in fact the many disinterested witnesses and the reports in which they have looked at, listened to and sifted through the various complaints made by the mother and they have come unifiedly, save for Ms W whom I will touch upon, to the view that there is no risk to the child remaining in the father’s care. In fact, it appears particularly from the O State School Reports, that the child has improved in his behaviour which was not all that could be desired he being somewhat aggressive previously.
What are the issues in this case? I say in passing that the presumption of joint parental responsibility is obviously discharged. The chronology to which I have referred indicates that the parties have no method of positive communication between themselves and any endeavour to enforce the presumption would cause even more harm to what must be a particularly fragile boy at this stage.
The issues appear to me to be quite clear and that is whether or not the father has sexually abused and/or physically or inappropriately abused the boy. Secondly, if the Court is not satisfied of the first point, whether there is an unacceptable risk of the child being so attacked.
The evidence has, as I have already indicated, been of vast magnitude. All experts are of the view that there is insufficient evidence to find that the child is at risk whilst in the possession of his father nor is there any of the experts, save for one, who believes that there will be an unacceptable risk that the child will be abused in some way or other.
These experts are numerous. They range from police investigators from what used to be known as the Juvenile Aid Bureau to members of the Department of Child Safety to Family Consultants and eventually the final decision has come to me. On the other hand, the two people who are of the view that the child has, is and will be subject to physical and/or sexual abuse by the father are the mother and Ms W. Ms W points out quite clearly that she has had 30 years’ experience with the Department of Child Safety and she is of the view reading the material, which I say in passing was read by Ms Y and Ms O, to whom I will refer at a later stage, that the child has, is and will be subjected to sexual abuse by the father.
As she says, she comes to that conclusion by her experience, the fact that she is of the belief that the reports of the mother were inadequately investigated in the early stage; that there has not been a sufficient holistic investigation into all matters which concern her and finally, that she is of a view that the child’s reported attitude towards the father is, in fact, a symptom of the “Accommodation Syndrome”.
The “Accommodation Syndrome” looms large in the mother’s evidence as well as in Ms W’s. The mother has exhibited to her affidavit various articles referring to the “Accommodation Syndrome”. I requested of at least two of the experts as to their knowledge of the “Accommodation Syndrome”. One had not even heard of it, Ms B of this Court was of the view that it had been raised before her, she was aware of it but she believes it is a tool and not determinative of a diagnosis.
Ms W’s evidence, of course, looms large. She, of all the experts, is the only one who in any way supports the mother and it is necessary for me to look at her evidence which is set out in the transcript of Wednesday 17 March 2010 – a copy of which I have had ordered and commences at 10:47 am. It appears that her report is set out at page 120 of volume one of the exhibit books which is a Case Note Summary which was created 27 November 2009.
I refer to and incorporate that summary in my Reasons for Judgment.
I emphasise in particular at page 2 of the report in the last sentence of that summary. Ms W says that:
I confirmed that living with the alleged perpetrator would preclude disclosure in most cases and that a neutral environment without contact with the alleged perpetrator would be a prerequisite for any possible disclosure.
Expanding upon this she refers to the ““Accommodation Syndrome””. I will exhibit hereto a copy of the 1983 article written by the creator of the Child Sexual Abuse Accommodation Syndrome (CSAAS), Dr Roland Summit, which was reproduced on the website of the South Eastern Centre Against Sexual Assault (SECASA) Australia with the publisher’s permission. As I understand it, Dr Summit subsequently published another article in 1993 (Summit, RC, ‘Abuse of the Child Sexual Abuse Accommodation Syndrome’, Journal of Child Sexual Abuse, vol 1 no 4, 1993, at 153-164), emphasising that CSAAS is a clinical observation and should not be misused as a scientific instrument for the purpose of diagnosis.
I must also indicate that Ms W had done an earlier Case Note Summary dated 20 February 2009 which is at page 554 of the second exhibit book. In that first Case Note Summary, nowhere does Ms W come to the conclusion that in fact B was being sexually abused by his father but she does criticise the Department, as I understand, by saying:
Without any future assessment “Backlog” have written this up as substantiated in relation to mother based on court reports from family court without any contact with the relevant parties.
She goes on to suggest that, in her view:
While statistically it is possible that the allegations by mother are due to her own child protection history, the probable explanation is the abuse is occurring as reportedly described by [B] to a number of people in his life. He has also reportedly stated that he is too afraid to tell based on threats by his father to shoot himself and his mother.
It goes on to say:
I consider it is our responsibility to provide [B] with a safe environment to disclose what maybe [sic] happening for him [sic].
She went on to support a recommendation for a thorough assessment as a matter of priority. This assessment to which she refers is eventually carried out by Ms Y and Ms Y’s assessment, I consider, was in depth and she did an enormous amount of work in the limited time she had to complete it – which I believe was 10 days. A document which commences at page 533 of the second exhibit book perhaps explains in more detail Ms W’s view of this matter and she says:
The notifier [blank] has been contacting our department since Nov 05 when [B] was three years of age with concerns re sexual abuse. The CCR response to these three contacts between 14/11/05 until 31/12/05 required the notification response in my view in order for adequate assessment to inform child’s protective needs and if required the Family Court process.
She went on to say in the second paragraph dated 24 July 2008 :
I do not believe there has been adequate assessment to date or adequate opportunity for [B] to disclose. Research indicates that statistically, allegations of abuse are far more likely to have substance than to not have substance and the Accommodation Syndrome explains [B’s] capacity to make negative statements about his father and then to appear happy with his father.
Ms W draws a further Case Note Summary which is dated 23 March 2009 in which she goes into some detail her concerns about B and, of course, she raises in this Case Note – see page 536 of the exhibit books – for the first time the “Accommodation Syndrome” and she sets out in the second last full paragraph on that page what she believes the “Accommodation Syndrome” is.
Regrettably as she set out in her evidence – see page 3 at line 15 – I asked her “Where does it [the “Accommodation Syndrome”] come from? What books are on it?” She replies, “Your Honour, I have spent a lot of time preparing for this, but I have not gone back and looked at the accommodation syndrome”. She goes on at line 23 to say “It was something that was particularly being discussed and used and considered back, probably, in the late 80s, early 90s.” I indicated my not having heard of it and she says at line 40 “I have since spoken to SACS, the Sexual Abuse Counselling Service, and they referred to – they informed me that the “Accommodation Syndrome” is now – the name has changed, but in essence remains…”. She could not, however, tell me what the name had changed to.
At page 4 of that copy of the transcript I go on to ask “But I have never heard of the “Accommodation Syndrome”?” and Ms W replied “She just said it is no longer referred to as a syndrome, but it is the accommodation something.”
I must confess that it does concern me that Ms W who forcefully puts forward the “Accommodation Syndrome” as being a reason why B appears on some occasions to be quite comfortable with his father and is indicative of the fact that the child has been sexually abused, does not know the name which she says the Sexual Abuse Counselling Service applies to it but that it has been changed.
Ms Frizelle of Counsel for the Independent Children’s Lawyer after identifying not all of the Case Note Summaries, and in particular I don’t think she identified the one to which I have immediately here and before referred which was at page 535, asked her whether in fact the opinion provided was her own, she said “yes”. She was asked whether she observed any interaction between the father and B whilst conducting and writing these reports.
She goes on to say at page 5 line 39 of the transcript:
My reports came about when, after the after hours – our after hours crisis – it used to be called Crisis Care – our After Hours Child Safety Service Centre were involved, along with the police, and [Ms SK] from After Hours – if I can call that abbreviated version – considered that there had been inadequate assessment to date. And as a result of that, she referred it to our office, [Z Office], in order for us to make some determination about what we believed needed to happen. I was then asked to do a review of the departmental involvement to date. My opinion was that the departmental involvement to date was demonstrably inadequate, and I referred to that in the most reasonable terms that I could, and that what needed to have occurred had not occurred, which basically simply concurred with what [Ms SK] had said from After Hours.
Ms Frizelle subsequently asked further at page 6 line 4: “But the question was did you actually observe any interaction between the father and the child?”. Ms W replied: “Yes, sorry. The reason I went to speak to that is that I didn’t actually get to interview people around that.”
As I infer from her evidence contained at approximately page 4 of the transcript and following, her recommendation was that there be a review and it appears that she concedes that a review was done by Ms Y, to which I have already briefly referred, and I emphasise that Ms W concedes that she did not see anybody personally when she was completing the review – see page 6 line 44 of the transcript.
On 14 September 2008, a Case Review by Ms S had been prepared – see page 305 of the exhibit books. Under the heading “Summary and Recommendations” (refer to page 318 of the exhibit books) in this extensive and in-depth review, Ms S said:
In response to the scope of this case review, it is the reviewer’s assessment that:
·an [sic] thorough departmental assessment of the sexual abuse concerns has not ever been fully conducted and an adequate outcome reached, and therefore, the department is not currently in a position to provide the FLC with an assessment about any harm that may have been caused by sexual abuse…
·that a further investigation and assessment is required to determine whether or not the sexual abuse allegations are to be substantiated and whether [B] remains a child in need of protection.
These recommendations were eventually picked up and on 11 November 2009 an Assessment and Outcome Summary was created by Ms Y (refer to page 750 of the exhibit books) who gave evidence from Fremantle and was cross-examined. I refer to incorporate that full assessment of harm and risk in my Reasons for Judgment.
Ms Y, in my opinion, carried out an in-depth and effective consideration of all the material which had been put before her and which was contained in the file. She did an enormous amount of work. There were some areas which have been criticised by Ms W, Ms Y not having interviewed some of the people – I refer to page 751 of the exhibit books. Ms W does criticise Ms Y on coming to the conclusion which she did – I will be touching upon that immediately hereafter – but I note that based upon exactly the same material, Ms W herself has come to a conclusion contrary to that of Ms Y.
I must say Ms Y, in her brief evidence from Fremantle, impressed me with her knowledge of a matter that she has not touched for some months and, in fact, gave me a greater impression of knowing what was going on than Ms W, who was not even able to nominate what the name of the “Accommodation Syndrome” had changed to. At page 762 of the exhibit books under the sub-heading “Recommendations”, Ms Y states the following:
Based on the current assessment outcome of [B], it is recommended that the family case be closed for the following reasons:
·The current investigation and assessment outcome is unsubstantiated – [B] is not of need in protection whilst in the primary care of [the father].
·During the course of [the father’s] involvement with the current assessment period and the duration of the intervention with parental agreement CSO’s have not observed [the father’s] presentation or behaviours to indicate concerns in regards to his psychological wellbeing, therefore the Department has no jurisdiction in regards to [the father] being ordered to undergo a psychiatric assessment. This should be taken into consideration with future Family Court decisions.
·[B] has attended school for a substantial period of time whilst in [the father’s] primary care. He has also attended numerous counselling sessions and the department has received positive reports in relation to his emotional, cognitive and social wellbeing.

Perhaps the most in-depth assessment of this matter is the so-called “Closing Summary” which is from Ms M of the Child Abuse Therapy Team Child Protection Unit of Mater Health Services. Exhibited to a letter of 10 November 2009 (see page 715 of the exhibit book) there appears to be a report which has been truncated, however, the following document at page 717 is the Queensland Government’s Magellan Report dated 2 March 2010. This is a document of enormous breadth and reflects the tremendous amount of work that has been carried out by the Department in this case.
They come to certain conclusions and unfortunately for the mother I must say that I can no way fault the conclusion that they have come to. I also note there is an updated report dated 11 November 2009 which appears at page 769 of the exhibit books. This document refers to the review which was carried out by Ms Y, to which I have herein before referred, and it is noted on page 769 that the assessment was commenced on 29 October 2009 and the outcome of the assessment was “Unsubstantiated, child not in need of protection”.
As I have said previously, the effort of the Department should only be commended because of the intense amount of work that has been done. I commend Ms Y for her report which to me appears very clear and persuasive. I also commend Ms S for her recommending, in accordance with the request of the mother, that a full review and assessment take place and this has been done.
I must say in passing that a report which appears to be from Detective F, Police Officer, commencing at page 763 of the exhibit books and continuing until 765 does concern me in that this officer believed the mother was attempting to force the child into saying various things which the child clearly refused to do.
Notwithstanding there may be matters which I have overlooked in the extensive evidence before me which may be of some assistance to either of the parties, I am quite satisfied on the evidence that there is no evidence or any sufficient evidence to convince me that the child, B, is being sexually assaulted, nor is there any unacceptable risk of his being sexually assaulted whilst in the primary care of the father, in whose care he has been since 2008 when the child was recovered pursuant to a recovery order.
Having said that, it now comes upon me to consider the matters as set out in section 60CC and the other sections in Division 12. I must say that the endeavour to have meaningful contact between the person who does not live with the child concerns me in this case. Not only has the mother absconded with the child for a period of three months in the year 2008, but she has indicated to experts in this field that in all probability, if in fact the case goes against her, she would do it again. Though she does recognise that such conduct would be counter-productive insofar as B’s education and medical treatment is concerned (see Family Report dated 17 June 2009 at paragraph 12).
But she unfortunately has come to this conclusion, perhaps assisted by Ms W’s view that B has been and is being sexually abused by the father. As I have touched upon before, I think that she genuinely believes this and it perhaps may be a hysterical reaction. I have observed both parties in the witness box. I have heard the father’s evidence. I have seen him cross-examined and he impressed me as a person who has only the best interests of the child at heart.
I have to consider whether there is any form of meaningful contact to be entered into between the parties. To me, it appears that generally the Act is directed more towards, notwithstanding protestations to the contrary, the fact that the parties have the control of the outcome in relation to the children. It is about time, I believe, that the Court considered and made quite clear that it is the child who has the rights – the parents have no rights at all other than duties to the child.
What possible benefit would the child get by spending some supervised two to four hours at the maximum with his mother each alternate weekend or every weekend? Regrettably it is the only way, as a result of the entrenched views of the mother, that he can have any form of contact with her without being put at risk of her leaving and secreting herself in a place where it may be more difficult to find her and the child.
So far as Dr U is concerned, there is a risk of the mother not being compliant with orders of the Court. Further she is, according to the Family Report writer Ms B to whom I have referred, still at a risk of absconding with the child notwithstanding the fact she perhaps recognises at this stage that it may not be in interests of the child’s schooling and/or health. What form of contact is the child entitled to with his mother? I would have thought that other than for the mother’s statement that she would, in all probability, abscond with him again that the evidence is quite clear that he has a warm and loving relationship with his mother and that such warm and loving relationship should be supported by meaningful contact but I am somewhat concerned that the child will disappear again with the mother and that this time it may be harder for the Courts and the police to find him.
Consequently I regret that I have no other course left open to me but to order that such contact be supervised. I am quite clear from cases in the court that one cannot make a supervisory order without some form of sunset clause attached to that. I think it is absolutely essential that the mother come to a conclusion that the child is not subject to sexual abuse by the father and should she do so, it would make contact with her much easier and naturally more productive and of a longer duration.
However, I feel that I have to order supervised contact in the form that it is ordered at present and that the Independent Children’s Lawyer should at the end of six months bring the matter back on for hearing before me with the assistance of a further psychiatric report from Dr U as to the mother’s attitude towards unsupervised contact and towards her feelings that the child has been sexually abused by the father.
Best to be said that I have not looked into the respective histories of the parties. I need no more refer in relation to the mother than to Dr U’s report which is at page 840 of the exhibit books and in her extensive history she sets out those matters which some people might consider to be of importance in relation to the early childhood development of the mother.
Dr U is of the opinion that the mother’s conviction that B is being sexually abused by his father could perhaps be brought about as a result of her own history of sexual abuse (see page 8 of her opinion at page 847 of the exhibit books). I am concerned that the doctor concludes:
I consider that her psychological stance is increasingly entrenched as she has undertaken the adversarial process of litigation and I believe that it is improbable that she will be able to comply with Orders for unsupervised time with the father.
She goes on to say in the next paragraph:
As things stand I believe that it is highly improbable that she will ever be able to facilitate contact between the child and the father and since the Court has determined that sexual abuse of the child by the father is unlikely to have occurred this in itself would be to the detriment of the child.
That report, of course, is dated some two years ago on 27 March 2008 – perhaps Dr U was prescient.
I have touched upon the father’s history – his history in itself is perhaps best set out with reference to his police record (see page 413 of the exhibit books). He, however, has had the support of two women with which he has had relations and also his son V.
I am now left to consider those matters under section 60CC which are relevant to this case. I make it quite clear that I do not believe that it is part and parcel of a Judge’s duties in relation to the welfare of the child to particularise each and every of the section 60CC factors but to refer to and discuss those which, in his/her opinion, are of importance in relation to the child.
I have touched upon the child having a meaningful relationship with both of his parents. I further say that it is quite clear that he has a relationship with his mother, but in an endeavour to protect him from the flight risk of his mother, it is necessary for such relationship to be restricted. Quite clearly, the child has to be protected from psychological harm as well as to a lesser extent physical harm. I am satisfied that there is no physical harm to the child as alleged by the mother. There is no abuse by the father.
I am quite satisfied that there is abuse of the child, if not by both parties, particularly by the mother who has failed catastrophically to comply with the orders of the Court and consider what independent disinterested experts have found after enormous and extensive investigations and inquiries into the allegations which she has made in relation to sexual abuse.
Psychologically this child is exhibiting signs, in my opinion, of emotional distress. I have referred briefly to the two discs, which I have one, seen and two, heard. There is evidence that the child cries quite reasonably. There is evidence that he was distressed after being returned to his father subsequent to the mother disappearing with him for a period of three months. This poor child has had nothing else but wars and battles since he was about 12 months old.
I consider there must be some way of his being protected totally from such incursions upon his emotional well-being and I have almost come to the conclusion that it might be preferable that there be no contact with the mother whatsoever for a considerable period. However, taking into consideration the matters which are before me and all the reports, there is a relationship between the boy and his mother and that he is excited there to be with his mother.
How then are we able to protect him from the probability that the mother will once again abscond? I regret that it has to be by some form of supervision. I am mindful that contact centres do a wonderful job and are necessary in this unfortunate area but the child deserves a better contact with his mother than two hours in an area in which he obviously is supervised by strangers to him.
What then can be done? I can only request the Independent Children’s Lawyer to consider any proposition by the mother for some form of contact – supervised for perhaps a period from 9:00 am until 6:00 pm by a responsible adult person. If such responsible adult person is not forthcoming, then there is no other area left to me but that to order that the mother continue having contact in accordance with the present regime.
Insofar as section 60CC is concerned, I am more than satisfied that the mother would not encourage a close and continuing relationship between the child and his father. I am more than satisfied that the father probably would. He has indicated in evidence that he would not be opposed to some form of overnight or weekend access by the mother to the child but this is, of course, subject to the absconding risk and I cannot see at this stage that I could order something of that nature.
In relation to section 60CC(f), the mother is in my opinion incapable of providing for the needs of the child emotionally – although intellectually she may be able to do so.
Section 66CC(4) is, I am satisfied, damning insofar as the mother is concerned as she has failed to fulfil her responsibilities as a parent. Notwithstanding her entrenched view, she should take notice of persons who are not here just to put obstacles in her way but have the child’s interests at heart and after extensive inquiries on numerous occasions, are unable to support the mother save for Ms W in her allegations in relation B’s abuse.
As an overview, I have to say as follows that I have considered the enormous amount of material in this case. I have taken into consideration the numerous investigations, reports and inquiries. I have considered the evidence of professionals in their field. I have considered the reports of Ms S and Ms Y. I have taken into consideration the extensive evidence of Ms W and I have taken into consideration the “Accommodation Syndrome” which smacks very much of the “Stockholm Syndrome”.
I have taken into consideration the fact that Ms W has in fact come to a conclusion directly opposite to Ms Y on, in effect, exactly the same evidence. She has emphasised that in her view the complaints by the boy that the father will kill him and the mother are recognised and loom large in her mind but she does not take into consideration the statements wherein the boy has said that he will kill the father – no-one has touched upon these remarks made by the boy wherein he suggests he could blow him up at kindergarten or he could drop a bomb on his head and things of that nature.
Consequently I am unable, not being an expert in that field, to come to any conclusion as to what this means. It is just another matter which is before me in this terrible case for the child. The mother, as I have said, genuinely believes that the boy is at risk. I am more than satisfied on the evidence before me that he is not.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate:

Date: 28 May 2010

[2010] FamCA 421

28 May 2010

Key Legal Topics

Areas of Law

Family Law