Lindsay and Wells

[2017] FamCA 1063

FAMILY COURT OF AUSTRALIA

LINDSAY & WELLS [2017] FamCA 1063

FAMILY LAW – CHILDREN – Best interests of the child – Allegations of sexual abuse of child by the father – Allegations of sexual abuse of mother when she was a child by the father – Whether there is an unacceptable risk of sexual harm to the child by the father – Whether mother’s parenting capacity would be significantly diminished if child were to spend time with father – Where father initially seeks for child to spend supervised time with mother, gradually increasing to an unsupervised shared care arrangement – Where mother seeks for child to live with her and have no contact with father – Where child lived predominately with father up until January 2016 – Where child has lived with mother since the sexual abuse allegations – Where child is at real risk of sexual harm by the father – Whether strict supervised time would alleviate risk of harm – Where long term supervision of father calls into question the value of the time and relationship – Where supervised time would not be in the best interests of the child – Where there is also a risk of harm to child living in the mother’s household – Where risk associated with father’s household is less acceptable than risk posed by mother’s household –  Where neither parent would facilitate the child’s relationship with the other parent – Where mother to have sole parental responsibility – Where child to live with mother and neither spend time nor communicate with child, unless child initiates attempt.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623
Moose & Moose (2008) FLC 93-375
Fitzpatrick and Fitzpatrick (2005) FLC 93-227
Slater & Light (2013) 48 Fam LR 573
Gorman & Huffman [2016] FamCAFC 174

APPLICANT: Mr Lindsay

RESPONDENT: Ms Wells

INDEPENDENT CHILDREN’S LAWYER: Mr Wells

FILE NUMBER: CSC 360 of 2016

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 11, 12, 13, 14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITORS FOR THE APPLICANT: Cuthbertson & Co Lawyers

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITORS FOR THE RESPONDENT: The Law Office

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Murray Lindsay Solicitors

Orders

1. That all previous parenting orders are forthwith discharged.

2. That the mother have sole parental responsibility for B born … 2003 (“the child”).

3. That the child live with the mother.

4. That the father neither spend time with the child, nor communicate with her, unless the child initiates any such communication, in which case the father may respond to her.

5. The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

6. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.  

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 Lindsay & Wells 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 CAIRNS

FILE NUMBER: CSC360/2016

Mr Lindsay

Applicant

And

Ms Wells

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. B (born in 2003) (“the child”) is the 13 year old child the subject of these proceedings. Ms Wells (“the mother”) seeks orders that the child, who up until February 2016 lived predominantly with Mr Lindsay “(the father”), should neither see him, nor communicate with him for the balance of her childhood.  She justifies such orders on the basis that he is an unacceptable risk of sexual harm to the child, and in the alternative, that her parenting capacity would be significantly diminished if the child were to again spend time or communicate with the father.  For his part, the father denies that he poses any such risk to the child, and does not accept that the mother’s parenting capacity would be diminished as she asserts, were the child to again spend time with him.  However in view of the mother having withheld the child from him since February 2016, he says that, although ultimately there should be an equal shared care regime, initially the child should live with him, and the mother’s time with the child should be supervised at a Contact Centre for the first twelve months, before gradually moving to unsupervised time on a staged basis.

2. Both parties seek sole parental responsibility.

3. The Independent Children's Lawyer supports the mother’s proposal.

BACKGROUND FACTS

The father

1. The father was born in Australia in 1964, and hence is presently 53 years of age.  He grew up in Darwin.  His parents separated when he was 10 years of age, and he was, seemingly together with his seven siblings, raised by his mother.  He concluded his education at year 10 and told Dr C, a psychiatrist who examined him for the purposes of these proceedings, that his employment thereafter had been varied.  At some stage he formed a relationship with a woman called Ms D, which lasted some 15 years, and to which relationship a son, Mr E, presently 29 or 30 years of age, was born.  It was while he was living with Ms D and Mr E in Darwin, that he first met the mother, when she was a young girl.

The mother  

1. The mother was born in Australia in 1985, and hence is presently 32 years of age.  She had a very troubled upbringing.  It appears as though most of her childhood was spent in Darwin with her father, as her mother remained in New South Wales.  She told Dr C that her mother was a heroin addict and an alcoholic.  It appears as though her father was also an alcoholic.

2. At some stage, whilst she was living with her father in Darwin, she lived in the same neighbourhood in which the father, Ms D and Mr E were living, and met them.  The mother thinks she was then about four years of age, whereas the father believes she was seven.  Nothing turns on that.

Pre-relationship

1. It seems uncontroversial that the mother’s father would regularly go on drinking binges in the bush, normally leaving the mother behind.  At those times, there was no one to care for the child, and so Ms D would take her into her care.  On the occasions when the mother would accompany her father on his drinking trips, the father’s evidence is that when she returned with him to Darwin, she “was often unkempt and dirty and had apparently been poorly cared for by her father.”

2. This led to the father and Ms D agreeing with the mother’s father that the mother would go into their care, and Ms D be primarily responsible for her.  That occurred. 

3. The mother says that from an early stage, the father was involved in bathing her, and whilst doing so, regularly sexually assaulted her.  I will discuss the evidence in relation to that later in these reasons.

4. In 1998, when she was 13 years of age, the mother met her own mother for the first time that she could recall.  A few weeks later she went to live with her in F Town in New South Wales, for approximately nine months.  In her trial affidavit, the mother said that her mother and her partner were addicted to heroin, and they were both very verbally abusive to her.  She told Dr C that her mother was also an alcoholic, and “her time with her mother was a disaster” in part because her mother “tried to sell her for sex.”  Apparently there was also an occasion when she was locked in a cupboard for some three days, and after escaping, told the school guidance counsellor about her home situation, which resulted in her being removed from her mother’s care and living in a refuge for approximately eight weeks.  During that time, the relevant government department located her father, who was then in G Town in the H Region of Western Australia, and she was returned to his care.  She then remained living with him in Western Australia for approximately five months, before returning with him back to Darwin, where they lived on an aboriginal community camp.  She told Dr C that whilst there she caught a skin infection and became quite sick, and was advised by a doctor to leave, because the hygiene at the camp was inadequate.

5. On one occasion, when she was at a night market in Darwin, the mother caught up again with the father and Ms D, and asked if she could live with them, because her then living arrangements were very unstable and unsatisfactory.  They agreed, and collected her from the aboriginal camp one week later.  She told Dr C that it was initially intended that she would spend two to three weeks with them, but in fact it proved to be ongoing.  The mother recalls this all occurred in about 1999.  If that is the case, then she was about 13 or 14.  It appears as though the father then started to collect social security benefits, by virtue of having the mother in his care. 

6. The mother says that within a few weeks of returning to live with him, the father again started exposing his penis to her.  He also, according to the mother, would walk into the bathroom when she was showering and look at her.

7. The mother recalls that the father and Ms D separated in 2000, with Ms D moving out.  The mother remained living with the father.

8. At about this time, the mother says that she commenced smoking marijuana with the father.  The father denies this.

9. The mother claims that about four or five weeks after Ms D moved out, and after smoking some marijuana, she and the father first had sexual relations.  She has inconsistently reported the location of that as either being near a bridge, or in the father’s bedroom at his home.  The father denies he commenced sexual relations with her at 14, but accepts that he did so at 17.

10. Relevant to the mother’s age when she first had sexual relations with the father, are some records in evidence derived from the Northern Territory Police.  They relate to an assault by the mother on a person who had previously been a friend of hers at school in February 2002.  On that afternoon the mother and her former friend were both on a bus, travelling home from school, and had an exchange in which the other girl said to the mother “at least I don’t fuck my uncle.”  It is apparent from the assault victim’s statement that she believed that the father was in fact the mother’s uncle.  Once off the bus, the mother struck the other girl for what she had said on the bus.

11. The mother says that by February 2002, she and the father were having sex on a daily basis, but that they went to great lengths to hide their relationship, ensuring that the home was locked and otherwise unoccupied when they had sex, and for her to have a boyfriend so that people would not think that she and the father were together.  In fact, around this time she did start dating someone, to whom she fell pregnant, albeit it ended with a termination.  The mother further says that when she was about 15, Mr E walked in on her and the father having sex, and that led to a breakdown in the relationship between her and Mr E.

12. The mother says that at about this time some of her other school friends started to accuse her of having sex with her “uncle.”  She associates that with being part of the cause of the parties’ subsequent move to Queensland.  The father denies that that was the cause for the move, but rather says he was troubled about the risk of violence between him and his brother, which had impacted upon his relationship with his family more broadly, and that “all of these difficulties led me to decide that I had to leave town and I decided that I would take my son and move to [J Town]”.

13. It is common ground between the parties that the mother wished to accompany the father to J Town, and that her father gave his approval to that.  At paragraph 21 of his affidavit, the father said:

    On the day that I was leaving, I took [the mother] to her father’s house with the intention of leaving her in his care.  However [the mother] asked her father if she could come with [Mr E] and I and when I spoke to [her father] he asked me if it was ok to take [the mother] with me.  On the spur of the moment, and because I was just wanting to leave town, I said, “yes it would be ok” and I agreed to take [the mother] with me.

14. It is difficult to be certain as to when it was that the parties left Darwin, but some assistance can be had from the father’s concession that he and the mother commenced their intimate relationship in J Town in June 2002.  He says that he knows that because that was one month after the mother’s 17^th birthday.

15. Given that the Northern Territory Police records disclosed that the assault occurred in February 2002, it therefore follows that the parties must have moved to J Town in that four month period.

16. The father’s version of events as to how the parties commenced having an intimate relationship is a little revealing.  In effect he blames the mother’s persistent interest in him, to which he “ultimately gave in.”  He says he was vulnerable because he was still distressed and upset at his brother having commenced an affair with Ms D, and “was very lonely and perhaps flattered by the mother’s attention towards me at the time.”

17. By now the mother was enrolled in year 11 at K School, where Mr E was in year 9.  However six months after moving to J Town, she ceased her education and commenced employment.  She gave her wages to the father.

18. In March 2003 the child was conceived; the mother was then 17 years of age and the father 38.

19. The child was born in 2003 at the J Town Hospital, but the father’s name did not appear on the birth certificate because the mother says she was troubled about the age difference between them perhaps leading to the child being taken from her.

20. The parties are agreed that they separated in late 2005.

Post-separation

1. It seems that immediately after separation, the mother remained living in the parties’ accommodation, and the father moved to L Town with the child for about three months.  He said he did that because “I was struggling with the breakup and was very upset to see the mother out with other men.”  During the time in L Town, the mother maintained some telephone contact with the child.

2. Notwithstanding the mother was seeing other men, when the father and child returned from L Town, he moved back in with the mother and her boyfriend, apparently until he found a place of his own.  The father says “the mother and I did not reconcile but we briefly resumed a sexual relationship.”  The mother appears to accept that that was the case, but says that she only did so because that was the only way she would get to see the child.  I must say I find it difficult to reconcile the father’s view that he had to move to L Town so as he wouldn’t be upset by seeing the mother with other men, with then three months later moving into the mother and her boyfriend’s accommodation.

3. Ultimately the father obtained his own accommodation and the parties have remained separated.  The child remained living with the father.

4. The mother says at paragraph 47 of her trial affidavit:

   Between 2006 and mid-2011, I bounced from house to house, boyfriend to boyfriend and I partied a lot.  I drank a lot of alcohol and tried a lot of different drugs.  I had no interest in being in a committed relationship but I loved male attention and constantly sought it everywhere I went by either acting or dressing provocatively.

5. Throughout all this time she was also consuming considerable quantities of marijuana, and accepts that she has been addicted to it from an early age.

6. The father has never re-partnered, on the evidence before me.

7. Until February 2016, save for a period of about nine months in 2012, it seems common ground that after separation, the child lived with the father and spent only intermittent time with the mother.  The mother says she did not insist upon the child living with her because “she was not brave enough to challenge” the father’s authority.

8. It appears that in July 2007, a notification was received by the relevant department, which commenced an investigation into the child’s then sexualised behaviour.  As to that, it seems as though even from an early stage, when she was in nappies, the child has always demonstrated sexualised behaviours and appeared to find some pleasure from the fold of the nappy.  However in 2007 she was demonstrating a number of other sexualised behaviours, including masturbating in public, raising her legs in a “butterfly” style, humping adults and had a red and sore vaginal area.

9. The departmental investigation concluded that “there is insufficient evidence to prove [the child] has been sexually abused by [the father] or any other person at this time.”  However it is also noted “[the child] is displaying behaviours consistent with sexual abuse and therefore she is considered at future risk of harm as it is unknown where these behaviours originated and who may have abused her.”

10. The mother was supportive of the father during this investigation, and expressed a degree of anger at the prospect that he could be charged with any abuse.

11. On 4 September 2007, the father contacted police, and informed them that the child had woken up from a nightmare calling out the name of a worker at her childcare centre.  It transpires that this man had been charged with possession of child pornography and the father thought that he may have been the perpetrator of any abuse suffered by the child.  The police did not investigate the matter.

12. In June 2008, police investigated the living conditions of the father’s house, and particularly an allegation that the child had been sleeping on a mattress in a small courtyard outside the back door.  The investigation showed that, although the child would occasionally fall asleep on some bedding located outside, she was always brought inside by her father when it got dark.

13. Although the mother had been very supportive of the father in the 2007 investigations, on 14 October 2009 she made a complaint to police that, amongst other things, the father “was walking around naked in front of [the child] on a daily basis.”  An ICare interview ensued.  The subsequent report records:

    Victim child is adamant that no one has ever touched her private parts or touched her inappropriately. Victim child stated dad does walk around nude sometimes however she did not appear perturbed by this and feels safe with him.  She explained that she always wears clothes at home..  Direct question asked at the end of a very lengthy interview if anyone had touched her private parts.  She was adamant in her answer that no one had touched her private parts.

14. The father denied any wrongdoing in his interview with police, but police records note that throughout it, the father became very aggressive and abusive towards police, and the interview was discontinued a short time later.

15. In September 2011 the mother commenced a relationship with her current husband, Mr M.  It is common ground that since a young age, he too has been addicted to marijuana, and remains a very heavy user of it, seemingly smoking up to 50 “cones” per day.

1. For about nine months in 2012 the child went to live with the mother, during which time the father spent little, if any, time with her.  However it appears as though in about October 2012, the father requested that the child be returned to live with him.  When the mother dropped the child off at his door step, she sent him a text message which was in evidence, in which she said “U can keep [the child] I don’t want this shit so fuck off n leave me alone.”

2. The next relevant events occurred in December 2015, although their exact sequence is unclear.  It appears as though in that month:

   ·The father advised the child that the reason that he and the mother had broken up, was because she had “cheated on him;”

   ·Approximately two weeks prior to Christmas in 2015, the child said to the mother that “she hated [her] because [she] cheated on [the father].” The mother confirmed that was true, but thereafter told the child that the father had touched her vagina when she was seven years of age.  She says that she told the child that because “I thought that it was the right thing to do,” but in cross-examination conceded that it was an inappropriate conversation to have had with the child;

   ·The father says that the child asked him to stop smoking marijuana, and he says that since then, with one exception, he has not done so;

   ·The child says that she awoke one night to find the father in her bedroom rubbing her vagina with his hand.  She says that this occurred for a few minutes before the father caused them to both to kneel on her bed, and he made the child stroke his penis for about ten seconds, whilst he was fondling her buttocks.  The child says that the father then left her room, and she went to sleep, and has not ever discussed the matter with the father since.  The father denies that any such thing occurred.  Importantly for this case, it is said that a video recording (accepting that it was dark, and was apparently in fact mainly an audio recording) of some part of that encounter was taken on the child’s phone;

   ·Although the date is far from clear, around about Christmas 2015, the child accessed some pornographic sites, using her mobile phone.

3. Next, on 8 January 2016, the mother made a complaint to the police about the father’s alleged abuse of her as a child.  That investigation apparently remained ongoing as at the time of trial before me.

4. Seemingly some time in about mid-January 2016, the child took “selfies” of her naked upper body.  She says that she took about 10 such photos. 

5. The child went into the mother’s care for the weekend on Friday 29 January 2016.  The following day, at about 8:00pm, the mother accessed the internet browser of one of the child’s mobile phones. It displayed a pornographic website, inferentially the site which the child had accessed a few weeks earlier.  The mother passed the phone to Mr M , and asked him to block those sites.  Mr M took the phone and accessed the browser and noticed a number of pornographic sites.  He tried to block those sites from the child’s phone.

6. He then went into the gallery section of her phone, and saw the topless selfies of the child, and says he also saw the video referred to earlier. I will discuss the alleged content of it later.  He says he was distressed by what he saw, and that he deleted the pictures, but not the video. He did not tell the mother about the photos or the video, because she was already quite upset that the child had been accessing pornography.

7. The mother asked the child why she was looking at the pornographic websites, but the child would not say or acknowledge that she had accessed anything inappropriate.  The mother briefly confiscated the phone.

8. The following day Mr M says he had a two hour conversation with the child about what he had seen on her phone.  He asked her about the video he had seen, and in the course of that discussion, retrieved the phone as he wanted to show her the video, but found that it had been deleted. Subsequently the child has said that she deleted the video. She refused to tell Mr M who was in the video with her, although she has subsequently told the mother and police that it was the father.

9. On the following day the child attended school; she was due to return to the father’s care from school that afternoon.  However, Mr M sent the mother a text message advising her that the child was not safe with the father, and that she should go and retrieve her from school. The mother then created a pretext for the child to go back in to her care, and went and collected her from school.  The child has not thereafter spent time with the father.

10. After the mother arrived home with the child, she and Mr M had a conversation about what he had found on the child’s phone.  The mother became very angry with him about his deleting of the photographs. The mother retrieved the child’s phone, but could not find any video. The mother says “I asked [the child] what was going on, who was hurting her and I apologised to her for not protecting her. [The child] and I both started to cry and thereafter we stood and hugged for a long time.”

11. The child later told police a different version of events.  She said that the mother asked her if it was the father in the video, but she denied that it was, and said it was only herself.  The child said the mother refused to accept that, but she ultimately succumbed to the mother’s pressure, and told her that it was indeed the father.

12. On 1 February 2016, the mother and Mr M took the child to the J Town Police Station.  She says that whilst both she and Mr M gave statements to the police, the child refused to talk to them.

13. The following day the mother says she had a conversation with the child about a number of things, which concluded with her telling the child that “she needed to tell me who was hurting her on the video on her phone by the end of the day.”  Some hours later, the mother approached the child again, during which conversation the child told her that it was her father who was in the video.  The mother says that it was at that point that she decided not to return the child into the father’s care.

14. The mother again took the child to police, and an ICare interview was conducted that evening.  In that interview, the child admitted to taking the photographs of herself (although she thought it was only about two weeks earlier) and conceded that there had been a video on her phone, but did not want to say anything about it.  She said she felt safe at the father’s home.

15. The police told the mother that the child had not disclosed anything to them.  I am satisfied that the mother was not happy about that.  That then led her, on the following day, to take the child to be further interviewed by the Department of Child Safety.  The mother says that officers of that department “told me that they thought [the child] had been coached and therefore they were not going to investigate.”

16. On 2 February 2016 the father attended the mother’s premises at about 6:00pm to retrieve the child from her care.  Whilst he was driving there, the mother’s father telephoned him, and started abusing him over the phone.  He said there was a warrant out for the father’s arrest, and that if he went to the mother’s home, he would bash him and kill him.  The father says that had no idea what had precipitated that call, and he went straight to the police station.  However police could not provide him with any information. 

17. On 3 February the father then contacted the Department of Child Safety, but they advised that they could not help him, and that there were no reports about him. 

18. On 4 February the father then started to go looking for the child.  She was not at school.  He then waited outside her home, but formed the view that no one was there.  In fact, on the evening of 3 February, the mother, child and Mr M had gone to stay at motel accommodation, because, the mother says, she was concerned about the father trying to take the child away from her.

19. On 16 February 2016 the mother made an application for a protection order against the father.  In the course of preparing her material for that application, the mother asked the child when the father had begun touching her, because she “needed to tell the court.”  The mother says that the child said in response to that question, that is was “last year” which the mother took to be referring to 2015.  That caused the mother to again take the child back to the police on 18 February 2016, and officers again interviewed the child.  According to the police summary of that interview, the child disclosed that the video on her phone was of the father touching her, although it was very dark, so she did not know where she was.  She said that the father had done the same thing to the mother.  She explained that she had not told police that it was the father in her earlier interview on 2 February, because she was not ready to disclose, and she was scared.  She went on to say that the video was of her father “touching me down there.”  She recalled that the event occurred about two weeks prior to Christmas 2015, at her father’s house, when she was sleeping in a bedroom.

20. She disclosed that she had touched the father’s penis.  She went on to say:

    It was long.  He made me go up and down like that.  It felt squishy but hard at the same time.  It was pointing forward.

21. She went on to say:

    It felt weird.  Like when you have loose skin.  Moving my hand for about 10 seconds.  He was touching my bum.  He was touching like squishing a ball.

22. She said that she did not know how the video recording function on her phone had been activated, and said that she did not take the video herself.

23. This appears to have led to the police investigation being reactivated.  As part of that investigation, the child’s phones were forensically examined.  There is a report of that examination dated 5 March 2016.  It, in part, reads:

    No data was able to be extracted from the black LG mobile phone due to USB hardware connection issues.  The fitted micro SD card was deemed faulty and do data could be accessed from this device.  SIM card data extracted from the fitted SIM card.  Data extracted from HTC Desire mobile phone and fitted SIM card however no video/audio files of interest located…

24. On 25 March 2016 the mother took the child for a medical examination, explaining that the child had been sexually assaulted by the father.  The medical records note that the child did not wish to speak about what happened but was happy to sit in the waiting room whilst the doctor spoke to the mother.  A pregnancy test of the child proved negative.

25. On 2 April 2016 a pretext call was made to the father.  Police listened in to that call.  The father denied having ever abused the child.

26. The following day the father voluntarily attended the relevant police station and submitted to an interview.  In that interview it is said he made full denials in relation to the allegations, and claimed that the child had been coached by her mother to make them.

27. On 4 April 2016 police concluded their investigations.  The relevant report notes “investigations reveal that it is highly doubtful the offence occurred…”  The reasons for that appear to be a combination of the fact that the child made no disclosures in her initial interview with police on 2 February, but only did so on 19 February.  Further, no deleted videos were able to be retrieved from the child’s phone, and there was no other corroborative evidence to support her allegations. The police report concluded “as evidence indicates that it is highly doubtful the offence occurred this matter is to be solved as unfounded.”

28. On 8 April 2016 the mother created a “go fund me” page to help with her legal expenses against the father.  That post included a picture of the child and an assertion that she had been sexually mistreated by the father.

29. On 15 June 2016 the father initiated these proceedings, albeit initially in the Federal Circuit Court. Also on that day a notification was made to the department in relation to the child, including that she was living with the mother and Mr M, who are both regular and heavy drug users.  I should interpolate that this is not the only notification that has been made to the department in which the mother’s drug use, and the drug use of others in her household, have been a feature.

30. On 11 August 2016 the mother attended ATODS.  She gave a history that she had been smoking marijuana for 27 of the last 28 days, and had been smoking it for six or seven days per week for the last 13 years.  She also disclosed that she has used up to 20 cones per day.

31. Thereafter it appears as though the mother was able to reduce the number of cones that she consumed, from 20 to 10 per day.  However in relevant ATODS records, it is noted that Mr M was unsupportive of her doing so, and that also in her household was a 19 year old nephew, who was also smoking marijuana.  It was noted that the child was aware of the use of the drug in her home, but it upset her.  Subsequent notes suggest that the mother told the counsellor that Mr M spends between $300.00 and $500.00 per week on marijuana.  Unsurprisingly, it was noted that, given the mother’s environment, the risk of her relapsing, even if she were able to ever cease smoking marijuana, was high.

32. The Family Report interviews were conducted in September 2016.  In the course of those interviews, Ms N, the Family Report writer, interviewed the child.  At [44] of Ms N’s subsequent report, she noted as follows:

    [The child] volunteered her phone was removed as a consequence of accessing pornographic websites.  She said curiosity prompted her to view the websites depicting heterosexual and lesbian activity.  [The child] also volunteered she had informed the police that her father had sexually assaulted her last December.  [The child] then disclosed “I was in bed; he came into the room naked.  I don’t know how, my pants were off.  He started touching me down there.  I got to my knees, I touched his thing.  He put my hands there.  He touched my bum.  I touched him.  He went out of the room.  He pretended nothing had happened.”  [The child] reported this was the sole occasion someone had acted inappropriately towards her.  She could not remember another male being told not to enter her bedroom.

33. She then went on to tell the Family Report writer that her father had recorded the video, but she had turned it off.  She was not able to explain why the father had recorded it.  She said that although Mr M had found the video, she subsequently deleted it, as “I did not want to get dad into trouble.”

34. Next, in January 2017, the mother says that she and the child spoke whilst they were in the child’s bedroom.  She says that she said to the child “I need to know what happened between you and your dad,” to which the child replied with words to the effect of:

    I woke up.  It was pitch black, I could feel dad between my legs and I could see the light from the phone which dad had in his hand.  I reached down between my legs and turned the phone off.  Dad then asked me to sit up on my knees and he did the same and we hugged naked and then dad asked me to hold his privates.  Dad then hugged me, pushed me away, walked out of the room and started mumbling to himself.  It sounded like daddy was crying.

35. For reasons which are unclear on the evidence, also in January of 2017 the mother agreed to the child being able to speak with the father on the telephone.  The mother recorded all of those calls.  The father was probably unaware of that.  Transcripts of those recordings were in evidence, and some parts of the recordings were played.  In those recordings, the child and father appear to be demonstrating a relatively normal relationship, and conversation between them seems spontaneous.  However in the recording of 20 January 2017, several interesting matters can be discerned.  The first is that the father perceived that he was on speaker phone.  A little later the father says “so [Mr M] started all this stuff hey?”  To this the child says “I can’t really talk about it dad.”  The father responded “just bloody ridiculous some people but anyway don’t worry about it… at least you know the truth anyway…”

36. Then, some time later in the conversation, the father says “.. I’m gonna say something now, don’t say I can’t talk about it dad or anything else, I’m just gonna say something to you alright?”  He then continued, “Um, when you get to school and find a friend give us a call so I can talk to you, talk about things, otherwise it will never get resolved, alright, lets talk about something else…”

37. A few seconds later he then said “.. yea, alright cool, and then that way it will be alright, ringing from school see, then they don’t know, they don’t know and I can talk to you and we can talk about things, …”  Towards the conclusion of the conversation the father said “ok, well if you don’t ring up tomorrow, ring me at school .. have to be at lunchtime or something so no-one knows.”

38. The father denies that he intended to use any call by the child to him from school in any improper way.

39. Since then the child has not again spoken to the father.

40. The trial commenced on 11 September 2017, and the Family Report writer commenced to give her evidence on 12 September.  However during the course of her cross-examination, she became aware that the child had recently taken to self-harming, by cutting herself.  Ms N was very troubled by this and, particularly given that the Family Report interviews had taken place a year earlier, expressed a desire to again interview the child.  That was arranged, and that afternoon the child was picked up from school by Mr M, with Ms N in attendance.  It follows that the child had no knowledge that she was about to be interviewed by the Family Report writer again.  Whilst I shall address other aspects of that interview in due course, in the course of it, the child again repeated the allegation in relation to the father’s sexual assault of her.

Current situation

1. As at the time of trial the father had not re-partnered, and was living in a home which he shares with his brother and his brother’s son, who is 19 years of age.  The father anticipated that his brother would move to Victoria in November of 2017.  He says that he has kept a room for the child, ready for her to return.  Although not in employment, the father was hopeful of shortly obtaining employment.

2. The father denies that he continues to have any substance abuse problems.  That said, he was required to undertake a random drug test by the Independent Children's Lawyer, which returned positive for cannabinoids.  He says that this was the result of the only lapse that he has had since December 2015, and came about when a friend offered him a joint after a funeral.  The mother is sceptical that the father has indeed given up, and says that it is too much of a coincidence that the only occasion that the father has been required to submit to a drug test, it proved positive.  

3. For her part, the mother remains living with Mr M (whom she married at the end of 2016).  Also living in her home is her father.  The mother continues to use marijuana as indeed, it appears, does everyone in her household, with the exception of the child.  The mother conceded in evidence that she will smoke between 10 and 30 cones per day.  Mr M smokes up to 50 cones per day.  Her father appears to use a combination of alcohol and marijuana.  The marijuana is stored outside the house and smoked in the garage; it is not smoked in the presence of the child.  It is said by the mother that most of her smoking occurs of an evening.

4. The mother is in employment at J Town.  Mr M is employed full-time as a manager.  He earns a considerable income in that role.

5. The child is now 13 years of age and in high school.  As I have indicated, she has recently taken to self-harming by cutting her thighs.  In her recent interview of the child, Ms N inquired what this self-harming related to, and formed the view that the child’s cutting was a means of her exercising control, although there may have been a component of self-punishment to it.  She said that the child appeared to be under typical adolescent pressure, although there was no mention of bullying in her conversation.  Ms N said that the child is aware of the court case, and that is stressful for her, but the mother refuses to speak with her about it.

1. The child told Ms N she was not tempted to use cannabis, although she can see that it does relax her mother, and therefore can identify a benefit to it in certain circumstances.

2. Otherwise – perhaps rather surprisingly – the child appears to be developing normally.

THE ISSUES

1. With the assistance of the parties, at the Trial Management Hearing at which the matter was set down for trial, the following were identified as being the likely issues in this case, in that their determination is likely to substantially inform the outcome:

   1.What is the nature of the relationship between each parent and child.

   2.What risk, if any, does the father pose to the child, and what means are available to adequately mitigate any such risk.

   3.What risk, if any, does the mother pose to the child, and what means are available to adequately mitigate any such risk – psychological harm by the mother.

   4.Would the child benefit from a meaningful relationship with each of the parties, and if so, how might it best be facilitated.

   5.What is the likely effect on the child being required to:

   (a)Live with the mother;

   (b)Live with the father;

   (c)Spend time and communicate with the father

   6.Would each parent facilitate a meaningful relationship between the child and other parent.

   7.Do both parents have the capacity to provide for the child’s cultural, developmental and emotional needs.

   8.Could the parties communication support equal shared parental responsibility, or sole parental responsibility with an obligation to consult.

2. Once I have considered the relevant statutory provisions and legal principles, but in an advance of a traverse of any residually relevant s 60CC considerations, I will address those issues and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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

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

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

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence 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.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. S 140 of the Evidence Act 1999 (Cth) provides as follows:

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

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

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

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

   (c)      the gravity of the matters alleged.

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

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

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

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

The notion of unacceptable risk

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

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

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   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. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the 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.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

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

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

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

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

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

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

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

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account.  A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

NATURE OF RELATIONSHIP BETWEEN EACH CHILD AND PARENT

1. Ms N’s evidence was that, if one put to one side the allegation of the father sexually assaulting the child, the relationship between them was otherwise a healthy one.  She formed the view that the child’s primary attachment was with the father, which is unsurprising given that she has, up until February 2016, lived most of her life with him.  The child appeared to be progressing and developing well in the father’s care, and Ms N said that there was no reason not to think that the child did not derive nurture, comfort and love from the father.  Some criticism was made of the father’s living arrangements in the evidence, but the investigation of them by DoCS did not find any real issues of concern in that respect.

2. Ms N’s evidence further was that, if the father had sexually abused the child, then the relationship was an unhealthy one, in that it was one in which the father was prepared to abuse the power which he has over the child, for his own gratification.

3. As to the mother’s relationship with the child, Ms N’s evidence was that it was a caring and protective one, and there was an aspect of the mother being a doting mother to the child, which she conjectured may be compensation for her own unfortunate childhood.  She was of the view that the child obtained nurture from her relationship with the mother, and that there are activities which they enjoy doing together.  Ms N said that at the time of her interviews in September 2016, she felt that the mother may have been overly indulgent with the child, but could not speak as to whether that continued.

4. I am satisfied that the child enjoys good relationships with both of her parents, or at least did so prior to 2016.  Since then the child has had limited interaction with the father.  That said, her phone conversations in January of this year, as I have noted, appeared to be spontaneous and warm.

5. In her conversation with Ms N during the course of the trial, the child was open to the possibility of re-engaging with the father, but wanted to do so in a public place.  That was because she identified there was a risk of the father being angry, and behaving in a way that includes slamming doors and shouting and so forth.  The child did not identify any risk of sexual harm in the father’s care.

6. Notwithstanding the child’s concerns, I am satisfied that, if the father were to again spend time with the child, the relationship would probably rapidly resume its pre-2016 character.

RISK POSED TO CHILD BY FATHER

1. This is very much the nub of the case.  The only real risk identified in the father is the risk of sexual abuse of the child in his unsupervised care.

Points evidencing risk

1. It is convenient to consider the points which individually speak to the level of risk which the father poses of sexual harm to the child.  I identify those as follows:

   ·The child has on several occasions made direct disclosures implicating the father, both to police and now twice to Ms N.  The fact that the child did not make disclosures in her initial police interview, was explained by her in her subsequent interview, and in any event, in her 2 February interview, the child had specifically said she did not want to speak about the video, as she was uncomfortable talking about it.  Her apparent demeanour in the interview at that point is consistent with her indeed being uncomfortable, although the reason for that discomfort was not explored in the interview. 

   I have already detailed the chronology in the two months which led up to the child’s disclosures.  Many events occurred in that time, including the father advising the child that the reason why he and the mother had broken up was because she had cheated on him, and the mother confirming that was true, but telling the child that the father had touched her vagina when she was seven years of age.  Further, at about that time the child accessed some pornographic sites on her mobile phone.  Additionally in December 2015 the child asked the father to stop smoking marijuana and he has, on his evidence, done so.  Then, on 8 January 2016 the mother made complaint to the police about her abuse at the hands of the father.  In mid-January 2016 the child took some naked selfies of her upper body. 

   Plainly the child’s disclosure to police was arguably highly contaminated by the mother’s threats to the child requiring her to disclose, and the interventions of Mr M by speaking to the child. 

   Nonetheless, even taking all of those matters and potential contaminants into account, the child’s consistent subsequent repetition of her story cannot be overlooked, and must be given weight;

   ·There is some corroboration of the child’s disclosures and Mr M’s evidence, in that police did find (it seems, probably) topless “selfies” on the child’s phone;

   ·It is not in dispute that the father formed a sexual relationship with the mother when she was, and had been for some years, in his care, and was 21 years younger than him.  That speaks to poor boundary setting, poor appreciation of power and trust imbalances in relationships, and perhaps a self-centred approach to relationships with people in his care;

   ·There is some slight corroboration of the mother’s allegations that her relationship with the father started whilst she was 14 years of age in the Northern Territory.  These include the bus incident in which a peer taunted her that she was having sex with the father (noting that it was believed to be her uncle).  There can be no doubt that event occurred, because there are contemporaneous Northern Territory Police records about it.  Further, there is the odd way in which the mother came to move with the father to J Town. The father’s explanation of it verges on unbelievable.  Additionally there is the alleged interruption of the father and mother having sex by the father’s son Mr E, although he did not give evidence before me.  Finally, the father’s assertion that sexual relations with the mother only commenced no more than four months after they moved to J Town, seems a little too convenient;

   ·The father’s request for the child to telephone him from her school is, one could speculate, consistent with a desire to discuss the child’s allegations with her, without the scrutiny, or even knowledge, of others that such was occurring.  I am well satisfied that it was those events that the father wanted to discuss, as he had already commenced to discuss them with the child during those conversations;

   ·The child’s very early sexualised behaviour was said, at the time, to be consistent with her having been sexually abused by someone.

1. On the other hand the following points tend to demonstrate that the father presents either no, or an acceptable risk, of sexual harm to the child:

   ·The child has twice denied any sexual wrong doing by anyone towards her when interviewed by police, the first being in 2009, and the second in the 2 February 2016 interviews.  Since then, there can be no doubt that her evidence has been substantially contaminated by the involvement of the mother and Mr M;

   ·The child’s disclosure of abuse of her by the father only came after the mother had told the child that the father had abused the mother, the child had accessed pornographic sites, and the child had taken topless selfies;

   ·Despite several investigations by police, the father has never been charged with, much less convicted of, any sexual misconduct.  Further, at least in respect of their investigation on 2 February 2016, the police were apparently positively satisfied that “evidence indicates the offence did not occur;”

   ·The mother failed to report the father’s alleged offending against her until 2016, which was long after separation;

   ·Many of the mother’s and Mr M’s conversations with the child were likely undertaken when they were under the influence of marijuana;

   ·There is no clear explanation on the evidence as to why the topless photographs could (apparently) be found on the child’s phone by police, but the video could not.  The only evidence of what was allegedly on the video (accepting that it appears to be mostly audio) is the evidence of Mr M and the child.  That has been variously inconsistently reported by them, although perhaps not in any major respect in relation to the detail of the assault;

   ·The child’s version of other events of the night in question has been inconsistently reported by her, for instance as to her involvement in the video recording on her phone.  That said, the central elements of it appear broadly consistent, and some parts of her recounting, for instance, her experience of rubbing the father’s penis, somewhat inexplicable unless based upon actual physical experience;

   ·The evidence implicating the father with any video is essentially the child’s disclosures, and to a lesser extent Mr M’s beliefs that the voice he could hear was the child’s. 

   ·Even if the father did sexually abuse the mother whilst she was a child in his care, it may be that his risk of doing so with his biological child is less;

   ·Some aspects of the mother’s and Mr M’s evidence is, in various respects, inconsistent with contemporaneous reports in police records, although those records do not purport to be verbatim notes;

   ·The mother’s and Mr M’s perception and recollection of events generally may be affected by their longstanding, and considerable, use of marijuana.  Further, although it was not explored in cross-examination, it seems likely that many of the significant events in this case have occurred at times when they were likely affected by marijuana;

   ·Until 2009, the mother never raised any complaint against, or even mistrust of, the father, in whose primary care the child was.  Even in the 2007 investigation she was angry at the prospect of the father being charged with abuse of the child (which may to some degree inform the acceptance of her evidence that the father had molested her at a young age, whilst she was in his care);

   ·The father voluntarily submitted to police interview;

   ·It is illogical for the father to video the crime of him abusing the child and to leave the incriminating video on the child’s phone.  Further, the video was said to include the father’s voice, which would necessarily have identified him in an objective way.     

Evaluation

1. The evidence does not persuade me, on the balance of probabilities, that the father sexually abused the child.  Likewise it does not persuade me on the balance of probabilities, that the father sexually abused the mother as a child.  By the same token, the evidence does not permit me to positively exclude those occurrences either.

2. However the evidence does permit me to conclude that the father, even on his own case, abused the trust which the mother had in him, when he commenced a sexual relationship with her at the age of 17, after she had been in his care for many years and there was a very large age difference between them.  That incontrovertible fact must inform the magnitude of the risk which the father poses.  Moreover, until he was cross-examined, the father does not appear to have ever conceded that his relationship with the mother was quite improper, in that it must have involved an abuse of the trusting, parent-like, relationship he had with the mother.  Worse, he sought to blame the relationship upon the mother’s alleged importunings of him.  Given his position of responsibility for her, her dependence upon him, and their age difference, that he was prepared to still countenance that as a justification for his conduct is very troubling.  In a sense, he sees, and seeks to portray, himself as the victim, rather than the mother.

3. Weighing all of the foregoing matters in the balance, I conclude that the risk of the father sexually engaging with the child is not fanciful, and is real.  It is certainly a material one, albeit perhaps not quite justifying the description of unacceptable.

4. There can be no doubt that the gravity of harm flowing from sexual abuse of a child is enormous, and likely to play out in significant ways for the rest of the victim’s life.  It was this which informed Ms N’s suggestion that, if the father does pose a substantial risk of sexual harm to the child, there is no satisfactory way of mitigating it, other than by strict supervision.  For instance she rejected the idea that the father’s time should be restricted to day time only, as one cannot exclude sexual activity occurring at any hour of the day.  Further, she was reluctant to contemplate supervision in this case, because of the risk that, if the father had indeed assaulted the child, exposing the victim to the perpetrator can cause further harm.   

RISK OF HARM POSED BY MOTHER AND HER HOUSEHOLD

1. Ms N identified two risks of harm associated with the mother.  The first was that the child would grow up with a belief that the use of marijuana was simply an ordinary part of normal life.  The second risk was that the mother may not always be emotionally available to the child, and may become self-focussed again, as she plainly has in the past.

2. It has to be conceded that the mother’s household is one in which a great deal of activity appears to be centred around drugs.  The mother’s use is at an alarming level itself; Mr M’s use, even on the figure he is prepared to concede, is positively astounding.  That he is able to occupy a managerial position, for which he is well remunerated, whilst having, for all of his adult life, maintained such a heavy and unremitting use of drugs, is almost unbelievable.

3. It is unfortunate to note that, despite several notifications to the department about the excessive drug use in the mother’s household, no intervention has ever ensued.  Ms N explained that as perhaps being because the child has never evidenced adverse consequences from that exposure to drug use, of the kind that may otherwise have prompted mandatory reporters to contact the department, but such an explanation only goes so far.

4. Worse, there seems no prospect at all that the mother’s household will ever stop being associated with drugs.  Ms N said that the difficulty with drug and alcohol counselling is that it tends to focus upon the use of drugs and alcohol, whereas in the mother’s case, it is likely that her addictive behaviours, and particularly her self-medication using marijuana, arises from her childhood abuse.  She said that there is a need to treat the underlying disease, not the symptoms, but drug and alcohol services tend to be symptom focussed.

5. I am satisfied that the mother’s household does pose a real and substantial risk of normalising the use of marijuana in the child’s mind, and that such a normalisation could affect real harm to her, in that it could become an ingrained part of her life, as it has with the mother.

6. There is no means of mitigating that risk in this case, other than removing the child from the mother’s environment.

7. As to the risk of emotional non-availability which the mother may pose to the child, certainly in the past she has been prepared to, in effect, abandon the child into the father’s care when it conflicted with her own priorities, and doubtless that has been emotionally destabilising for the child.  However I am satisfied that, at least at present, the mother is fairly psychologically healthy (apart from her addiction issues) in the sense that she is functioning effectively.  Indeed the psychiatrist who examined the mother for the purposes of these proceedings, Dr C, was quite surprised at her presentation, considering her background.  At [85] of his report, he said:

   Certainly she has had some antidepressants in the past but apart from her using drugs at this stage I could not possibly see her as having any continuing psychiatric disturbance and I see her as being an impressive young woman with a lot of potential and a lot of insight into the situation.  She is not really dogmatic about the issues with [the father].

8. That said, Dr C opined that the mother would benefit from continuing long-term psychological input, but notwithstanding, said, he also said “but I must emphasise that considering her background I see [the mother] as a very impressive young woman.  I see her as intelligent and mostly competent.”

9. I do not assess the risk of emotional harm to the child in the mother’s care from any emotional non-availability as being of any real substance.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARTY

1. It was not seriously contended that the child would not benefit from a meaningful relationship with both parents, so long as the child’s experience of that relationship did not present an unacceptable risk of harm to her.  That was certainly the evidence of Ms N, who pointed to the benefits which the child had obtained from the relationship with the father in the past, and particularly the fact that her primary attachment likely lay with him.  As to the mother, she indicated that children can look along gender lines for assistance during their adolescence, but by the same token, she said that they can turn to the opposite gender too.  She noted that the mother and the child enjoyed going shopping, and engaging in joint activities, like having their nails or hair done together, which were things that the father was not quite so able to engage with the child in relation to.

2. Ultimately I am satisfied that the child would benefit from a meaningful relationship with each of the parents, and it would likely best be facilitated by her spending regular face-to-face time with them, and them being involved in all areas of her life.  However as I have indicated, in this case the question of risk of harm looms large.

LIKELY EFFECT OF PARTIES’ PROPOSALS

Child live with mother

1. Ms N said that, at the time that she saw the parties in September 2017, the child was thriving.  She predicted that would continue.  After she gave that oral evidence, she again interviewed the child during the trial, as I have discussed.  The issue of self-harm arose in that conversation, but Ms N assessed the child’s situation as being consistent with ordinary adolescent stresses.  That said, the fact that the child has started to self-harm is obviously concerning.

2. The child expresses a strong desire to continue to live with the mother, and no desire to live with the father.  That therefore informs me that the child perceives the mother’s home as being a better living arrangement, accepting that she is only 13 years of age.

3. However the issue of marijuana use in the mother’s household cannot be overlooked in this context.  There is a risk that the child will become normalised to the use of marijuana, at alarming levels.  Apart from that concern, (which is, of course, difficult to disregard) it appears as though the mother provides adequate care for the child and the child is doing well there.  That is likely to continue.

Child live with father

1. Ms N’s evidence was that until 2016, the child appeared to be thriving in the father’s care, and predicted that if she were to resume living there, it would likely continue.  However again the question of risk looms large, in that I am satisfied that living with the father would expose the child to a real risk of sexual harm.

Spend time and communicate with father

1. Ms N said that, in general terms children tend to align with the parent of their gender.  She therefore predicted that the child would, in any event, have reached out to the mother at her current age.  She said that the key to their interaction is their shared interests, but also relevant to the child’s preferences may be the home where they get the most leniency.  Although the child perceives benefit from leniency, Ms N said that a firm parent is usually a positive strength to a child.

2. She said that in the event orders were made for the child to spend time and communicate with the father, the child would need to be informed of that in a sensitive way.  She predicted that a key issue in how the child might react, would be the mother’s acceptance or otherwise of the decision.  If the mother were able to accept the reasons, it may assist the child to adapt to spending time and communicating with the father.  If she did not, then the child would be moving between two parents who persist in conflict, which the child may learn to exploit to her advantage.

3. I am satisfied that the mother is unlikely to accept the child having a continuing relationship with the father, under any situation, particularly if it involves face-to-face contact.  Whether rationally based or not, both she and Mr M are adamant in their belief that the father sexually abused the child.  Indeed Mr M broke down when giving evidence about what he saw and heard in the video, and saw in the photographs.  I am quite convinced that neither the mother or he could possibly support a relationship of any kind between the father and the child.  However I reject the contention that the mother’s parenting capacity would be significantly impaired if the child had contact with the father; the evidence falls well short of establishing that.

4. I do not overlook the fact that earlier this year telephone communication was able to successfully take place, in a way that did not appear to distress the child, but given that the father exploited that in a way to try and obtain a non-scrutinised line of communication with the child, this likely only confirmed the mother’s household’s view that the father simply cannot be trusted.

5. Unfortunately that then predicts that the child would become well aware of the mother and Mr M’s view of the father, and that is likely to expose her to tension and conflict.  Further, there is the question of risk which spending time with the father poses to the child, which I have already adequately addressed.

WOULD EACH PARENT FACILITATE MEANINGFUL RELATIONSHIP BETWEEN CHILD AND OTHER

1. Ms N’s evidence was that the allegations which the mother and the child have made against the father present a real impediment to both parent’s facilitating a meaningful relationship between the child and the other.  She said that both of the parents resent the other because of the allegations, and both have strong views about the other in consequence of them.  She predicted that neither would be a good gate keeper of the other’s relationship with the child.  I accept that evidence.  Neither of these parents would facilitate the child’s relationship with the other.

PARENTS’ CAPACITY TO PROVIDE FOR CHILD’S NEEDS

1. The uncontradicted evidence was that, apart from the questions of risk (which loom so large in this case), otherwise these parties have the capacity to provide for the child’s needs.

2. By virtue of her father’s background, the child and the father share aboriginal heritage.  However Ms N’s evidence was that did not appear to be a great issue in this case, although she did concede that the mother would be far less better placed than the father to encourage the child to experience that culture.

COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY, OR SOLE PARENTAL RESPONSIBILITY WITH AN OBLIGATION TO CONSULT

1. Ms N noted that, in the past, the parties had been able to jointly make decisions in relation to the child, and noted that the mother had acknowledged that the father had a real strength in decision making in relation to the child.  Ms N said that the mother was more impulsive in her decision making than was the father.

2. The difficulty is that the allegations that have now been raised have significantly impeded any prospect of civil communication between the parties.  The mother is angry at, and fearful of, the father; the father is angry at, and resentful of, the mother.

3. Ultimately I am satisfied that the parties’ communication and relationship generally would see them struggle to make joint decision making in relation to the child.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations, and a number of the additional considerations listed in s 60CC. However I make the following further observations.

2. The child has expressed a desire to live with the mother and, at most, to spend time with the father in a public place.  The reasons she gave for that did not relate to the allegations of sexual abuse, but rather the father’s demonstration of anger from time to time.  Ms N was of the view that the child had insufficient cognitive ability to appreciate significant matters such as risk, nor any real capacity to reflect upon the consequences of her actions.  Further, she said that the child was still immature in many areas, particularly sexually.  That said, she is maturing.  I give the child’s wishes some weight, but it is not great.

3. For many years, the mother did not properly engage in relation to the child’s life.  She was focussed on partying, drugs and sex.  The father has been far more engaged with the child than the mother. 

4. It does not appear as though the father pays child support for the child at present; by the same token it does not appear as though the mother has paid child support in the past.

5. The parties live sufficiently close together that there is no practical difficulty or expense in the child spending time and communicating with both.

6. The child is aboriginal and identifies as such.  She plainly has a right to not only enjoy that culture, but to be encouraged to enjoy it.  If she lives with the mother, and has neither time nor communication with the father, that will impact upon that right.  That is because the father is far better placed than the mother to facilitate it.

7. The mother alleges that there has been family violence proffered towards her by the father during the course of the relationship, and certainly there have been family violence orders.  The inference which I draw from that is slight.  It is, at most, that on occasions the parties can behave in angry ways, which is likely situational.

8. Plainly it would be preferable to make an order that is least likely to lead to further litigation in relation to this child.

PARENTAL RESPONSIBILITY

1. No party proposes anything other than sole parental responsibility. Even if the presumption for equal shared parental responsibility did apply, in that I were not satisfied that there were reasonable grounds to believe that there was family violence, I would nonetheless conclude that it is not in the child’s best interests for there to be equal shared parental responsibility. That is because the parties’ communication, although reasonable in the past, is no longer of a quality or character that would enable them to discharge their responsibilities under s 65DAC. Such a situation could not possibly be in the best interests of the child. There will need to be parental responsibility allocated to whoever is the primary residence parent (even acknowledging that the father ultimately proposes an equal shared care arrangement).

WITH WHOM SHOULD CHILD LIVE

1. With the assistance of the parties, during the course of the trial, I identified the following as points favouring the father’s proposal, or telling against the mother’s proposal.

   ·The child’s relationship with father has, historically, been stronger than her relationship with the mother;

   ·It seems that the child still has foundations for a meaningful relationship with the father, from which, subject to any risk of harm it poses, she would likely otherwise obtain considerable benefit;

   ·The father’s proposal would mitigate against the risks of harm the mother poses to the child;

   ·The father’s capacity to foster a meaningful relationship between the child and the other parent is equal to the mother’s;

   ·The father has a long history of providing the primary care of the child, at an acceptable level, and there is no reason to doubt he would continue to do so (subject to any risk of harm he poses);

   ·The father’s proposal is likely the only way (on the proposals) in which the child will maintain a relationship with him;

   ·The mother’s household poses serious adverse risks to the child (albeit not presently necessarily unacceptable);

   ·The father is likely best placed to foster the child’s experience of her indigenous heritage;

   ·The father allegedly ceased the use of marijuana (subject to conceded lapse) at the child’s request, which, if true, could be seen as more child focussed than the mother’s continued use.

2. On the other hand, the following points are in favour of the mother’s proposal, or tell against the father’s.

   ·The mother’s proposal would wholly eliminate any risk of harm which the father poses to the child;

   ·The mother’s proposal reflects the situation since January 2017, in which the child appears to be thriving (subject to her recent self-harming);

   ·The mother appears to be well able to meet the needs of the child;

   ·The mother’s proposal conforms with the child’s alleged wishes, as articulated by mother and Ms N;

   ·The mother’s proposal obviates potential disruption to the child’s living arrangements, if the father is incarcerated for his alleged offences against the mother;

   ·The mother’s proposal might eliminate any risk to the mother’s parenting capacity if the child were to again live with the father;

   ·The child has a meaningful relationship with the mother, from which she derives nurture;

   ·In adolescence (ie, probably now) the child is particularly likely to benefit from a meaningful relationship with the parent of same gender as herself (noting that the father has not re-partnered);

   ·The child appears to have a good relationship with Mr M, who wishes to parent her;

   ·The parties’ poor relationship may make any form of communication between them very difficult;

   ·The mother’s entrenched beliefs about the father’s past conduct, makes any form of shared care likely very difficult.

3. Weighing those considerations in the balance in this case, is a very difficult process.  On the one hand, I am satisfied that the father poses a real and material risk of sexual harm to the child, if she were to spend unsupervised time with him, but on the other hand, the mother and her household poses a real and substantial risk that the child will be normalised to heavy and regular marijuana use, with the significant prospect that she will go down that path herself.  Of course I do not overlook the fact that the father may continue to regularly and heavily smoke marijuana himself, but other than suspicion, the evidence would not permit me to so conclude.

4. Ultimately I assess that the risk associated with the father’s household is less acceptable than the risk posed by the mother’s household.  In large part that is because the gravity of harm that would ensue from sexual assault of the child, or further sexual assault of the child if it has already occurred, is greater than the magnitude of risk associated with the mother’s household.  However I should make it clear that this is the choice of the least worst alternative; neither option is attractive.

TIME AND COMMUNICATION WITH FATHER

1. It is in this context that the question of the risk of harm which the father poses looms large.  Further, it raises the question as to what adequate means of mitigation of that risk exist.

2. I have already determined that the gravity of harm flowing from sexual assault is enormous.  Further, I assess the prospect of that risk eventuating as real and material.  The only obvious means of adequately mitigating against it would be by strict supervision.  However in the event that the father has indeed sexually abused the child in the past, Ms N was strongly against supervision, as she said that any contact with the father could affect further harm upon the child.

3. Further, the Full Court has in decisions such as Moose & Moose (2008) FLC 93-375, Fitzpatrick and Fitzpatrick (2005) FLC 93-227, Slater & Light (2013) 48 Fam LR 573, and Gorman & Huffman [2016] FamCAFC 174, emphasised the fact that the necessity for long-term supervision of itself inevitably calls into question the value of the contact in the first place, if the parent in question poses such a risk, and secondly, that there should be either an opportunity for the question of supervision to be revisited in the future, or compelling reasons as to why that is not appropriate.

4. The following points favour the father not spending time nor communicating with the child:

   ·It would wholly eliminate any risk of harm the father poses to the child;

   ·It reflects the situation since January 2017, in which the child appears to be thriving;

   ·It conforms, somewhat, with the child’s alleged wishes, as recited by the mother;

   ·It obviates potential disruption to the child’s living arrangements if father is incarcerated for alleged offences against the mother;

   ·It would eliminate the alleged risk to the mother’s parenting capacity, if child were to spend time with father.

   ·The parties would not be required to communicate, thereby minimising any further conflict between them.

   ·Supervision for an indefinite period of time would call into question the value and benefit of that time, and therefore whether the relationship is in the child’s best interests.

   ·Supervision, if time was to occur, may impact on the child’s emotional wellbeing;

   ·If the father has in fact abused the child, continued exposure to him may further traumatise her (although the January 2017 telephone calls do not suggest trauma).  

5. On the other hand, the following points tell in favour of the father spending some time with the child in a supervised setting:

   ·It may enable the child to have a meaningful relationship with the father, from which, she would likely otherwise obtain benefit;

   ·It is likely the only way in which the child will maintain a relationship with the father, and to have any real opportunity to experience her aboriginal culture and heritage;

   ·Strict supervision would alleviate risk of sexual harm the father poses to the child (albeit not any risk of re-traumatising her). 

6. Ultimately, weighing those matters in the balance, albeit not without considerable reservations, I am not satisfied that an order for supervised time is in the best interests of this child.  In so concluding I do not overlook the fact that it is likely to erode her capacity to experience her aboriginal culture and heritage, but that cannot outweigh the risk of harm which the father poses to her.

7. There will therefore be orders that the father neither spend time nor communicate with the child, unless the child initiates communication.  In the event that she does so, he should not be precluded from engaging with her.  However he should be restrained from initiating any such contact.

OTHER ORDERS

1. Otherwise I am satisfied that the orders sought by the Independent Children's Lawyer are in the best interests of the child, and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 14 December 2017.

Associate:

Date:  14 December 2017