MANZIATI & MANZIATI

[2011] FamCA 277

FAMILY COURT OF AUSTRALIA

MANZIATI & MANZIATI [2011] FamCA 277

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Application by the applicant father for the child to live with the mother and for the child to spend unsupervised time with the father – Whether the applicant father’s time with the child should be supervised – Where the respondent mother alleges that the father has sexually abused the child – Whether the father poses an unacceptable risk to the child – Court determined that it is unlikely that the father sexually abused the child – Order made that the father spend unsupervised time with the child – The children are not in a position of unacceptable risk to their physical and emotional well-being when placed in the care of the father

Family Law Act 1975 s 4, s 60B, s 60B(1)(a), s 60B(1)(b), s 60C(1), s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 60CC(3)(m), s 61B, s 61DA(1), s 61DA(2), s 61DAC, s 65DAA(3), s 65DAA(5) and s 91B
Evidence Act 1995 (Cth) s 140(1) and s 140(2)

Harridge and Anor & Harridge and Anor [2010] FamCA 445
M and M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Briginshaw v Briginshaw (1938) 60 CLR 336
Cowley v Mendoza [2010] FamCA 597
Goode and Good (2006) FLC 93-286
MRR v GR [2010] HCA 4; (2010) FLC 93-425

APPLICANT: Mr Manziati

RESPONDENT: Ms Manziati

INDEPENDENT CHILDREN’S LAWYER: Peter Williams

FILE NUMBER: BRC 9889 of 2009

DATE DELIVERED: 21 April 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lynch

SOLICITOR FOR THE APPLICANT: Couper Geysen

COUNSEL FOR THE RESPONDENT: Mr Andrew

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

Orders

1. That all existing parenting orders be discharged.

2. That the mother and the father shall have equal shared parental responsibility for the child, B, born … April, 2006 (“the child”).

3. That the child shall live with the mother.

4. That the child shall spend time with the father as follows:-

   (a)on each alternate weekend during school term from 9:00 am to 4:00 pm on the Saturday and from 9:00 am to 4:00 pm on the Sunday commencing on the first weekend of each school term;

   (b)on every Wednesday during school term from immediately after school until 6:00 pm;

   (c)commencing at the end of second term 2011, during the school holidays at the end of first term, second term and third term each year, from 9:00 am to 4:00 pm on any of the days in the first seven days of such holidays that the father nominates and advises the mother of in writing delivered to her no later than two weeks before the last day of the school term immediately preceding the relevant school holiday period;

   (d)during the Christmas school holidays in each year, from 9:00 am to 4:00 pm on any of the days in the first seven days of such holidays and in the last fourteen days of such holidays that the father nominates and advises the mother of in writing delivered to her no later than two weeks before the last day of the school term immediately preceding the relevant school holiday period;

   (e)from 9:00 am to 4:00 pm on Father’s Day each year should the child not otherwise be with the father pursuant to the terms of these orders;

   (f)for three hours on the father’s birthday each year commencing and concluding at times to be agreed in writing between the mother and the father should the child not otherwise be with the father pursuant to the terms of these orders;

   (g)for three hours on her birthday each year commencing and concluding at times to be agreed in writing between the mother and the father should the child not otherwise be with the father pursuant to the terms of these orders;

   (h)for five hours on Christmas Day each year being from 11:00 am to 4:00 pm on Christmas Day 2011 and then for those hours each alternate Christmas Day thereafter and from 7:00 am to 12 midday on Christmas Day 2012 and then for those hours each alternate Christmas Day thereafter;

   (i)at all other times as may be agreed between the mother and the father in writing.

5. That the father shall collect the child from the mother’s home at the commencement of all of the times provided for in paragraph 4 of these orders save for each Wednesday during school term when he shall collect the child directly from her school.

6. That the mother shall collect the child from the father’s home at the conclusion of all of the times provided for in paragraph 4.

7. That in the event that Mother’s Day, the mother’s birthday, the child’s birthday or the child’s sister, J’s birthday fall on days when the child is otherwise to spend time with the father pursuant to the terms of these orders, the terms of these orders that would otherwise require the child to spend time with the father on those days shall be suspended save for the terms that provide for the child to spend time with the father on her own birthday for three hours.

8. That commencing from Saturday 15 October, 2011, the time that the child is to spend with the father pursuant to paragraphs 4(a), (c) and (d) of these orders shall not conclude at 4:00 pm on the Saturday, if a weekend, or at 4:00 pm on any of the days save for the last of the scheduled days, if during school holidays, and shall extend to and include overnight time between the daytime times already provided for in the event, and only in the event, that the father is able to spend such overnight time with the child in accommodation occupied also by his adult son, Mr P, and/or his daughter-in-law, Ms R, and/or his former wife, Ms S and, if the father is able to make such arrangements such that the child can spend time with him overnight, he shall  give the mother notice in writing (and such overnight visits are conditional upon the giving of same) of his intention to have the child spend such time with him and the address of the accommodation at which they will be staying and which of those third persons will also be staying with him and the child and, if it is necessary having regard to the terms of paragraph 11 of these orders, details of a telephone number the mother can call to speak to the child pursuant to paragraph 11 of these orders, such notice in writing to be given to the mother by no later than when he returns the child to the mother’s care on the Wednesday evening before any such proposed weekend overnight visits and by no later than two weeks before the last day of the school term immediately preceding the relevant school holiday period in which any such proposed overnight visits are to occur.

9. That the child shall otherwise communicate with the father by telephone between 5:00 pm and 6:00 pm on each Sunday and Thursday when she does not spend time with him on those days pursuant to the terms of these orders and for each such telephone call the mother shall ensure that the child is available to receive the telephone call and shall ensure that the child is given privacy to talk freely with the father during any such call and should the child not be available to speak with the father when he calls on any such occasion, the mother shall facilitate at her expense a telephone call to the father as soon as possible after the missed call and ensure that the child gets to speak with the father on such call.

10. That when the child spends time with the father pursuant to these orders the mother shall ensure the child takes with her sufficient clean, appropriate clothing to meet the child’s reasonable needs for such visits and the father shall ensure that all such clothing that the child takes with her on such visits is returned in good order and condition to the mother with the child at the conclusion of such visits.

11. That when the child is spending time with the father such that she is over-nighting with him during school holidays for any period of three nights or more duration, then the child shall communicate with the mother by telephone between 5:00 pm and 6:00 pm on every second evening that the child is with the father and for each such telephone call the father shall ensure that the child is available to receive the telephone call and shall ensure that the child is given privacy to talk freely with the mother during any such call and should the child not be available to speak with the mother when she calls on any such occasion, the father shall facilitate at his expense a telephone call to the mother as soon as possible after the missed call and ensure that the child gets to speak with the mother on such call.

12. That the child’s sister, J, is at liberty to accompany the child on each and every occasion that the child spends time with the father and the mother shall use her best endeavours to get J to attend with the child and the father shall not be entitled to veto such attendance by J if attendance shall be J’s and the mother’s wish and should the intention be that J attends any of the overnight time the child spends with the father, then the mother is to advise the father of that intention no later than the Thursday before any such weekend overnight visits and no later than 7 days before the commencement of any school holidays in which overnight visits are planned.

13. That the mother and the father shall keep each other informed of his and her residential addresses and landline and mobile telephone numbers and each shall notify the other of any proposed change to same no later than 24 hours prior to effecting such change.

14. That neither the mother nor the father shall denigrate the other to or in the presence of the child and each shall use his and her best endeavours to ensure that no third party denigrates the mother or the father to or in the presence of the child.

15. That neither the mother nor the father shall discuss or talk about these court proceedings with or in the presence of the child.

16. That these orders shall be authority for any school or cultural or sporting organisation that the child attends or is associated with from time to time to provide to each of the father and the mother at his or her request or direction any and all information that parents of children who attend or are associated with such school or organisation are provided with or entitled to have and the mother shall keep the father informed as to any school and any cultural or sporting organisation that the child attends or is associated with from time to time.

17. That each of the mother and the father shall keep the other informed in respect of any medical or health issues the child experiences whilst in his or her respective care and each shall advise the other as soon as practicable  of the name and contact details of any medical practitioner or allied health professional the child attends upon at any time and these orders shall be authority for any medical practitioner or allied health professional who the child attends upon from time to time to discuss with each of the parents all and any issues associated with the health, diagnosis, treatment and prognosis of the said child.

18. That the mother and the father are each hereby restrained by injunction from removing or attempting to remove the child, B, born … April, 2006 from the Commonwealth of Australia.

19. That the Marshall of the Court and all officers of the Australian Federal Police and of the police services of the various States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court.

20. That the solicitor for the father be responsible for forthwith advising the Marshall and the proper officer of the Australian Federal Police of the existence of these orders, and for serving a sealed copy of these orders upon the proper officer of any relevant police service as soon as practicable.

21. That each of the mother and the father shall, within twelve months of the date hereof, attend and complete a post‑separation parenting orders program conducted by (or at least to which he or she is referred by) a Commonwealth Government approved Family Relationship Centre and each party shall provide written proof of such completion to the other party as soon as such program has been completed.

22. That the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9889  of 2009

Mr Manziati

Applicant

And

Ms Manziati

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This is an application by Mr Manziati for parenting orders in respect of his five year old daughter, B, born in April, 2006. Mr Manziati seeks orders conferring equal shared parental responsibility for B upon him and the mother, Ms Manziati, as well as providing for B to spend time with him on alternate weekends, during the school week and during school holidays. There are also other orders that he seeks relating to communication with B, collection and delivery of her when she is to spend time with him and the prohibition of overseas travel by B.

2. The mother does not oppose B spending time with her father. Dispute arises between the mother and the father as the mother asserts that B’s time with the father should be supervised. Past conduct of the father, particularly, but not limited to, conduct of a sexually abusive nature towards B, is what the mother asserts is the basis for her belief that B’s time with her father should be supervised.

3. The mother proposes that the father’s adult sons and former wife of an earlier marriage, along with the wife of one of those men, would be suitable supervisors of B’s time with the father. She also contends that B’s ten year old sister, J, (who is not Mr Manziati’s child) should be at liberty to attend with B for all of the time she spends with Mr Manziati. Not surprisingly, given the mother’s position in respect of the facts of the case, she also contends that an equal shared parental responsibility order should not be made.

4. The father and the mother separated in mid-July 2009 after a marriage lasting four years. The father moved from the Brisbane home the family (consisting of the father, the mother, B and J) were living in at the time.  He has been living in a room he rents in a rental house he shares with two other men on the north side of Brisbane ever since the separation.

5. B and her older sister, J, were spending time with the father, after the separation of the mother and the father, on a very limited basis, largely determined pursuant to the direction of the mother. It was common ground that it was for only a couple of hours at a time, once or twice per week, and that the mother insisted that the father not spend that time with the girls at the home that he was living in, but rather at public places such as parks or jetties.

6. Apparently unhappy with those circumstances, the father commenced these proceedings by application filed in the Federal Magistrates Court on 29 October, 2009. After the mother was served with the application, the father continued to have the two girls spend time with him on the same limited basis as before. Significantly, as will be seen, there does not seem to be dispute that they spent some time with him at the home of one of his sons on Christmas Day, 2009 and that they spent some time with him again on or around 18 January, 2010.

7. At a Family Dispute Resolution Conference on 29 January 2010, the father learned that the mother had told the mediator that B had made a disclosure of being sexually abused by the father. The mother’s Response to the father’s Application, a Notice of Child Abuse and her affidavit of evidence were filed on 3 February 2010.

8. Federal Magistrate Purdon-Sully made interim orders on 8 February 2010 providing for B to spend time with the father for two hours every two weeks under supervision at a contact centre and ordered the appointment of an Independent Children’s Lawyer.  On 23 February 2010, Registrar Turner (as Federal Magistrate Turner then was) designated the matter a Magellan matter. 

9. On 8 July 2010, O’Reilly J ordered, by consent, that FM Purdon-Sully’s order for time to be supervised at a contact centre be discharged and ordered, in its place, time to be spent with the father on a daytime only basis to be supervised by his former wife or his daughter-in-law.   On 8 October 2010, the matter was listed for trial for four days commencing on 28 February, 2011.

PROPOSALS OF THE PARTIES

1. At the conclusion of the trial before me, the father sought orders that the child, B, live with the mother and, principally, spend unsupervised time with the father between 9 am and 3 pm each alternate Saturday and Sunday and from after school each alternate Wednesday until 7 pm for a six month period before moving to alternate weekends from 9 am Saturday to 3 pm Sunday and each alternate week from after school on Wednesday to before school on Thursday for a further three month period. Finally, the father sought that time to be increased thereafter to alternate weekends from after school Friday to 3 pm on Sundays and again on Wednesday nights after school until before school on Thursdays. He sought to have the child spend half of the school holidays with him as well and he also sought an injunction restraining both parties from removing B from Australia without the written consent of the other. The father sought no order in respect of B’s sister, J. The Court was informed that the father wanted to determine when J was welcome to attend with her sister.

2. The ICL advocated for orders very much like those the father sought but he also sought an order that the mother do all things possible to ensure that her elder daughter, J, also attend with her sister whenever B spends time with the father. The ICL supported the restraint against B being taken out of the country.

3. The mother’s proposal was put in the alternative. Firstly, in the event that supervision is determined necessary, B principally spend time with the father every Saturday from 9 am until 6 pm and each second Sunday from 9 am until 6 pm and from 9 am to 6 pm each day during half of each school holiday period. The mother proposed that supervision be provided by any of the father’s former wife, his two adult sons and the wife of one of those sons. Alternatively, in the event that supervision is not considered necessary, B spend time with the father each Saturday from 10 am to 2 pm until he obtains “appropriate accommodation” or from 9 am to 6 pm each Saturday and each alternate Sunday at the home of his adult son, Mr P and his wife, Ms R, until B commences Grade 3.

THE APPROACH TO THE DETERMINATION OF THIS CASE

1. The decision as to the particular parenting order to make in respect of B is to be arrived at with mandatory regard to her best interests being the paramount consideration. (see s.60CA) The Family Law Act 1975 (“the Act”) provides that in determining what is in the best interests of the child in the case before the court, consideration must be given to expressly listed “primary” and “additional” considerations. (see s.60CC) One of those “additional” considerations, namely s.60CC(3)(m), which lists “any other fact or circumstance that the Court thinks is relevant”, evidences, as Murphy J pointed out in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at [35], that the enquiry is indeed a broad one.

1. As broad as it is, the enquiry must nevertheless be performed within the constraints of the statutory framework of Part VII of the Act which begins with a statement of the objects of the Part and the principles underlying those objects. It is, in my view, important to set those out, particularly in a case where allegations of sexual abuse of a child by a parent are the central focus of the factual enquiry at the heart of the overall determination of what parenting orders are in the best interests of the child.

   S.60B (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. As long ago as 1988, well before the Family Law Amendment (Shared Parental Responsibility) Act 2006 that introduced into the Act that legislative statement of the objects and the principles of Part VII, the High Court decided M and M (1988) 166 CLR 69. Their Honours relevantly said (at page 76) :-

   In proceedings of that kind [parenting orders cases] the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.

3. The same 2006 Amendment Act introduced into Part VII of the Act the current statutory framework within which parenting orders are to be determined in each case in which there is dispute as to the parenting of children.

4. In what almost appears to be a legislative reflection of the words of the judges of the High Court in M and M, expressly listed as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are two matters (see s.60CC (2). They are:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   In the Act, it is said that making these considerations the primary ones is consistent with the objects of Part VII – that is, at least those two objects set out in s.60B(1)(a) and (b). (see the Note to s.60CC(2))

5. In any parenting case, the two “primary” considerations set out in s.60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77). That they are separately listed and described as “primary considerations” demands as much. But in a parenting case where allegations of sexual abuse of a child or children by a parent, or someone associated with a parent, are made, the two “primary” considerations and their interplay take on critical importance, just as the judges of the High Court in M v M effectively identified well before the two “primary” considerations were given their current legislative expression. 

6. On the one hand, consideration of the benefit to the child of having a meaningful relationship with both parents is given particular importance. On the other, consideration of the need to protect the child from being subjected to, or exposed to, abuse is, clearly, given equal importance.

7. There is no question that abuse of a sexual nature is as abhorrent as any abuse a child can be subjected to, or exposed to. As Fogarty J said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:-

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.

   That statement remains “as poignant and relevant” today as the Full Court said it was in 2005. (see W and W(Abuse allegations: unacceptable risk) (2005) FLC 93-235)

8. It is the resolution of the obvious tension between the two equally important “primary” considerations in the process of determining parenting orders in cases that involve sexual abuse allegations that requires the most careful thought.

9. Guidance as to how that tension is to be resolved was also given by the High Court in M v M, although, as I have already noted, that case was decided before the introduction of the two “primary considerations” and the objects with which they are consistent into the Act in 2006. Their Honours said (at page 76):

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.

   (and at page 75):

   …the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

10. Although Part VII of the Act has been significantly amended more than once since the High Court’s decision in M and M, there is, respectfully, no doubt that their Honours’ guidance still applies. The High Court also identified the relevant standard of proof. In that regard, their Honours said (at pp76-77):

    In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:

    The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

11. That test, known as the “Briginshaw test”, is now given legislative force in s.140 of the Evidence Act 1995 (Cth), which provides:

    s.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 which a 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; and

    (b)    the nature of the subject matter of the proceeding; and

    (c)    the gravity of the matters alleged.

12. The High Court in M and M also said, at page 77:

    In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

    ….

    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.

13. The Full Court discussed what was called ‘the unacceptable risk test’ in W and W (Abuse allegations: unacceptable risk) and said (at para 111):-

    In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

14. At paragraph 105 of that case, their Honours, referring to Fogarty J’s judgment in N and S and the Separate Representative, said:-

    Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714

    In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child? 

15. As important as is the consideration of the two “primary” considerations and as is the determination of whether there is a risk of sexual abuse occurring and the magnitude of that risk, all of the evidence in any case must also be considered and weighed in the light of the s.60CC(3) “additional” considerations and the s.60B objects and principles in order to determine what is in a child’s best interests.

16. Further, as Murphy J succinctly set out in Cowley v Mendoza [2010] Fam CA 597, all of those matters are required, by way of the specific statutory framework of Part VII, to be considered at more than one point in the process. Murphy J, drawing together the relevant legislation and the principles from the Full Court’s decision in Goode and Goode (2006) FLC 93-286 and the High Court’s decision in MRR v GR [2010] HCA 4; (2010) FLC 93-424, conveniently summarised the steps that are actually required to be taken to accord with the statutory framework set out in Part VII in any parenting case in which the Court makes or contemplates making a parenting order. The Court must:-

    ·apply the presumption of equal shared parental responsibility

    ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

    ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

    ·if the presumption applies:

    ·    determine whether it is in the child’s best interests for there to be an order for equal time with each parent

    ·    make findings as to the matters set out in section 65DAA(5) which are:

    Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

    ·    as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable

    ·    if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

    ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

THE PRESUMPTION OF EQUAL SHARED RESPONSIBILITY

1. All the parties ask me to make parenting orders in respect of B and I will be doing so. Accordingly, I must firstly apply the presumption that it is in her best interests for her parents to have equal shared parental responsibility for her. (s.61DA(1))

2. However, pursuant to s.61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in “abuse” of the child or “family violence”. Both “abuse” and “family violence” are defined, quite broadly, in s.4 of the Act. Without setting out those two definitions, it is sufficient to acknowledge that the mother in this case asserts that the father has engaged in both abuse of the child and family violence towards the mother. Indeed, the father also asserts that the mother engaged in family violence towards him by hitting him when they were living together in Country 2 in Central Asia (“Country 2”) early in their relationship. If I determine that there are reasonable grounds to believe that any of the alleged “abuse” or “family violence” actually occurred, the presumption does not apply. Certainly, counsel for the mother submitted that on the evidence I would be satisfied that the presumption is rebutted.

THE ALLEGATIONS OF SEXUAL ABUSE

1. The mother’s evidence in her affidavit filed 1 February, 2011 is that one day in December 2009 (there is no more particularity given to the date than this) after the two girls, J and B, had spent a few hours with the father, she was speaking with the two girls upon their return home just before 5 pm. B was sitting on the sofa in the lounge room. The mother said she looked dirty, her feet were dirty and she looked very upset. The mother said she then told B that her feet were dirty and suggested to her they go and wash them. The mother said that B then said, in the Russian language which they use to speak to each other, words that roughly translate in English into “Mum, Daddy touch my private place with dirty hand”. Otherwise in evidence, B is actually reported by her mother and by her sister, J, to have used a Russian word that children, particularly girls, use as a descriptor of the female genital region, namely “pissya”, where the “ss” is pronounced like “sh” is pronounced in English. It is that word that has been translated into “my private place” in the sentence just quoted from the mother’s affidavit.

2. In her affidavit, the mother said that she asked B if she could repeat what she had just said and B said the same words. The mother said she was shocked, that she then held B and then suggested that B have a shower and then have dinner.

3. In her affidavit, the mother said that since that day, B has regularly said to her in Russian, words that translate to “Mum, why did he do that? Why did [sic] touch my private part?”  The word “he” or “dad” or “daddy” appears to have been left out of the second part of that quote in that affidavit evidence of the mother. Presumably, the mother meant to include that and its absence is just a typographical error. Otherwise, it does not make much sense.

4. In the 1 February, 2011 affidavit, the mother said that “[n]early every morning when B went to the toilet and clean [sic] her teeth she would ask me these questions”. The questions the mother was there referring to were the ones set out in paragraph 34 above.

5. The mother said that she did not know what to do when B said what she said about the father. The mother said she made an appointment with a Centrelink social worker and told her. On the evidence, it is unclear when that is said to have happened. The mother said the social worker referred her to a support service. The mother said that the support service supported her in relation to B’s disclosures and advised her to report the matter to the police and to the Department of Child Safety. It is unclear when the mother saw the support service. The mother said that she went to see the police along with a worker from the support service.

6. Queensland Police Service records were produced under subpoena. They were all, as a bundle, tendered by counsel for the ICL, and admitted, without objection, into evidence (Exhibit 4). Those records show that the mother attended Police Station 1 on 19 January, 2010 and reported to the police the disclosure that she said B had made to her. The police records note that the mother was unsure of the date of the complaint being made by the child but that it had been a Saturday, about one month before. The QPS notes of that complaint suggest a misunderstanding by police as to which of the mother’s two daughters was said by the mother to have made the complaint. The police records for that day refer to J (called … in those records, which is apparently that child’s real name) as the “victim child”.  The notes record the mother reporting that when she asked the child “how was your day?” on that December 2009 Saturday, she answered “my father touched me down there with dirty hands”.

1. The QPS records reflect that the investigation of the complaint was apparently referred from Police Station 1 to Police Station 2 (close to the mother’s residence) and that on 20 January, 2010 two police officers went to the mother’s unit in Brisbane Suburb 1, spoke to the mother and obtained further information. Police this time apparently understood that the only child alleged to have been a “victim” was B but that the child, J, was said to have been a witness, at least to B’s disclosure. Arrangements were made for the mother and the two children to attend at Police Station 2 on 22 January, 2010 for statements to be obtained from the children.

2. The police notes record that the child J was interviewed. It is recorded in the notes that the child stated that she did not witness the alleged incident but that upon returning home from a visit with the father (her step-father) she and B sat on the couch in the lounge room and the mother asked them “how was your day?” It is recorded that J then said that the mother then asked “did he touch you down there?” to which B replied “yes”. It is further recorded that J stated that the mother asks “the same question” every time they return home from a visit with the father.  It is not at all clear on the police notes if “the same question” referred to the question “how was your day?” or to the question “did he touch you down there?” The notes are clearly just a record of one or both investigating police officers’ recollection of their observations that day. Without further explanation from the police officer or officers who entered the notes in the police records, it would, in my view at least, be dangerous to positively conclude that the reference to the child, J, saying that the mother asked the same question every time they return home referred to the question “did he touch you down there?”  The notes certainly appear to convey such an inference but I cannot find, on that evidence alone, that J actually said that her mother asks the girls “did he touch you down there” every time they return home from time with their father.

3. The police notes record that there was an attempt that same day, 22 January, 2010, to interview the child, B, but that she refused to leave her mother’s side and would not engage with police. It is to be remembered that B was only three years and nine months old at the time.

4. The police notes further record that on 2 March, 2010, two detectives, apparently different ones from those that were involved on 22 January, 2010, attended at the mother’s residence and attempted to interview B. It is recorded that the child did not speak to the police at all although she did nod and shake her head when asked specific questions. It is recorded that B made no disclosures to the police.

5. The police notes further record that on 8 March, 2010, two detectives interviewed the father. The notes record that he strongly denied touching his daughter on the vagina. They record that he stated that he had had no opportunity to change, bath or undress his daughter since the separation from the mother and that the child was always with her sister, J, and that they were at public places or at his son’s house.

6. The police notes further record that on 6 April, 2010, one of the detectives who had attended at the mother’s home on 2 March, along with an officer from the Queensland Department of Communities (Child Safety), attended at the mother’s home and again interviewed J and sought to interview B again.

7. Those two interviews were recorded and have been stored on compact discs. The CD’s were admitted into evidence as Exhibits 1 and 2 and played in Court.

1. I noted that during that interview, when the elder child, J, moves from answering questions that could be described as introductory, conversational style questions used to make her feel comfortable to actually responding to questions about why she thought the two women were there speaking with her, there is a discernable change of tone and style in the way she answered the questions. Indeed, the Family Consultant who prepared a report and gave evidence in the trial, Ms L, actually commented upon this after having listened to the recording of the interview herself earlier that day. Ms L expressed the opinion that the child went from being confident and outgoing and able to recall matters to being less confident and less articulate when asked questions about the alleged disclosure by B. Ms L went as far as expressing the opinion, based on that observed change, that she was not confident that it was J’s story that J was then telling and that she was not confident about its reliability.

2. In the recorded interview, J said initially that B had said that “dad had touched her down part” and that “she keeps saying it all over and over again” and that “last night she said it in the shower too.”

3. Later in the interview, J said that B “says it all the time” and “she says like he does it like whenever we go”. J said “when we came home, she said it…. my mum asked us where we had been, we said there and then she just said father touched her bottom part….. before mum asked us that, she said it.”  A little later, J said “basically she says it three or four times per week, I don’t know, she doesn’t say it like five times per day.”

4. When J was asked if anything like that had happened to her she answered “no”. When asked when the first time was that B had said it, J answered “last year, before Christmas”. She went on to say again “we came home, we always wash our feet, we washed our feet and mum came and asked us ‘where have you been’ and she said ‘father had touched her bottom part’”.

5. Later, again, J said “she told us in Russian ‘father touched my bottom part’”. J later explained that B did not say “bottom part” but had said the Russian word “pissya”. J is then described by one of the interviewers as pointing to her groin area when she is asked to show what part of the body that word referred to.

6. The recording of the interview with B that day reveals that B said nothing to the interviewers.

7. The police file notes record that the mother later told the interviewers that the words J referred to as being said by B in the shower the night before had actually been said by B in the shower a few nights before and that J had not been present then. If that is correct, it brings into question the reliability of the reporting by J that, when listened to, certainly conveys the impression that J is referring to something she heard directly from B.

8. The police notes further record that the mother had stated that same day, 6 April, 2010, that it was sometime before Christmas in 2009 when the girls had come home from spending time with their father that B first mentioned this. The notes record that the mother said that the girls were dirty and she asked them where they had been. She said that B had then said in Russian “father touched my pissya with dirty hands.”  The notes record that the mother stated that she had asked more questions of the child who had said “it was dark, downstairs. I was afraid.”  I note that the mother has not mentioned that last bit of information in any of her affidavits.

9. The police notes go on to record that the mother “speaks freely about all aspects of this matter constantly in front of both children”. That appears to be a matter of opinion expressed by who ever was responsible for recording the notes. Just how that opinion was formed is actually unclear to me. However, the inference seems to be that the conversation between the interviewers and the mother took place in front of the two girls, although that is not stated. There is a further inference, in my mind at least, that the opinion may have been partly based on the fact, recorded in the notes, that the mother had given them the information that I have referred to in paragraph 51 above, which, if correct, cast doubt on the reliability of the reporting of the child, J, of matters that were reported as if personally heard and observed by J. 

10. The mother further said in her 1 February, 2011 affidavit, that she took B to the family doctor in Brisbane Suburb 1 about a week after she had made the report to the police because B “started complaining about pain in her belly and pussy.” The mother said that the doctor did not want to check her as the doctor thought the child would “get stressed again.” I consider that means that the doctor did not want to do a physical examination of the child’s genitals. It seems no such physical examination of the child was ever done and there is no evidence of any observations of anything physically unusual about the child. Further, there is no evidence that the child made any disclosure to the doctor. Indeed, although there is a series of medical certificates exhibited to the mother’s affidavit filed 1 February 2010 from doctors of the Brisbane Suburb 1 medical practice referring to the child, B, dating from 22 March, 2010 to 15 June, 2010, there is no evidence from the doctor who the mother says she took the child to see the week after the mother made the report to the police. In particular, there is no such evidence corroborating the mother’s account that the child was taken to a doctor at that time complaining of pain in the “belly and pussy.”

11. The mother went on to say in her affidavit filed 1 February, 2011, that after spending regular time with the father, supervised at a contact centre between February 2010 and June 2010, B was “still scared of her father.” The mother said that she observed B to be stressed when she returned from the contact centre visits with her father. She also said the child was, quite often, sick on those occasions. She said that B would always say in the shower “I am scared that papa will touch me again” and that she would say, on the bus to the contact centre before visits with her father, “no-body touch me again there.” The mother said that the child would ask her that every time they were on their way to the Centre.

12. The mother also said in her affidavit that B told a Russian woman, a friend of the mother’s, around August 2010, who she said B regards as  like a grandmother to her, that “daddy, touch my private part” while at the same time touching her genital area to show her what he touched. However, there was no evidence from this Russian friend of the mother’s put before the Court by the mother to corroborate that evidence of the mother. 

13. The police did not charge the father with any offence. There is no evidence that they ever sought to interview him again after the interview I have already referred to. The Department of Communities (Child Safety) prepared a Magellan report in response to a s.91B order that was made by the Court on 23 February 2010. The Departmental officer who prepared that report advised that the Department’s recorded outcome in respect of its investigation of the matter was “Unsubstantiated – Children Not in Need of Protection”. She further reports

    from the information gathered during the assessment, it is difficult to confirm or deny that abuse has occurred to [B] as there was insufficient evidence to support the allegations.

    It was assessed that the children had not suffered harm of a detrimental effect causing significant impact on their physical, emotional and psychological well-being. It was assessed that the children have parents who are able and willing to provide an appropriate level of care and protection to them.

    The department has no current intervention with this family.

14. Senior Family Consultant, Mr C, saw the parties and prepared a family report that was admitted into evidence without objection notwithstanding the fact that he was unavailable for cross-examination by any of the parties due to circumstances beyond any person’s control.

15. At paragraph 61 of his report, Mr C notes that the day he saw J (which was 6 April 2010 – the same day that she had been interviewed in the recorded interview taken by the police) she had already been interviewed that day by police. He records that he asked J had anyone ever done anything bad to her or her sister to which she replied “no”. He records that when she was asked about having visited with the police that morning and about the comments that B was said to have made that J became noticeably uncomfortable and changed the subject to focus on something in Mr C’s office. At paragraph 74 of his report, Mr C said:

    It was evident when listening to the audio tape of [J’s] interview by police that, as was my experience of her, she has a good recall of general everyday topics, but clearly struggled to recall and relate her recollection of [B’s] disclosures.

16. Mr C’s opinion accords with Ms L’s opinion expressed by her during the hearing. Having heard the audio recording of the interview with J, as I have already noted, J certainly did change in her oral presentation and struggled, at least in my view, when asked to recall and relate her recollection of B’s disclosures. Of course, the change in demeanour, the move from being confident to being quieter and less articulate, could possibly be explained by the child being embarrassed about talking about the topic. However, I discern that the general consensus of opinion of the police and departmental officers who interviewed the child, as well as Mr C and Ms L, was that the information given by the child, J, during that interview that was recorded had to be considered very carefully, with serious concern as to its reliability.

17. Mr C went on to say, in paragraph 79 of his report, that he considered it unlikely that the father sexually abused B and he set out three factors upon which he based his opinion. They were:-

    -the appearance that both [B’s] and [J’s] perceptions concerning [B’s] disclosures have been unduly influenced by their mother;

    -the positive regard for her father that [B] displays when she has adequately separated from her mother (based on [Mr C’s] discussions with supervisors at the contact centre)

    -the mother’s apparent disregard for the father’s role in [B’s] life (based on her saying to him that she did not think that seeing her father was very important for [B]) and her limited child-focused attitude.

18. A report by psychiatrist, Dr M, dated 8 December 2010, who saw the parties, was also in evidence. Dr M was unable to identify psychiatric illness in either party or any psychological disorder which would impair their capacity to parent the child, B. Dr M did not express an opinion as to the likelihood or otherwise of the father having sexually abused B.

19. The written report of Ms L, dated 15 February 2011, was also in evidence. Ms L had read the reports of Mr C and Dr M.  She reported that there was nothing that had arisen since those reports that cast any better light on the issue of the alleged sexual abuse of B. Clearly though, having regard to Ms L’s recommendations that included a recommendation that B (along with her sister J) spend unsupervised time with the father each alternate weekend, Ms L herself assessed the level of risk of harm to B and/or J as acceptable enough to make such recommendations, notwithstanding having noted that the mother “indicates that she still believes that something inappropriate occurred” between the father and B. 

20. The written report of Ms H, dated 17 December 2010, was also in evidence. Ms H, employed as a counsellor at the organisation, Counsellors 1, Brisbane, from July 2010, had been seeing B from 26 August, 2010, on referral from the support service for ‘emotional support’ following the alleged sexual abuse. Ms H reports commencing therapy with B on 7 September, 2010 and seeing her for a total of eleven sessions, typically weekly, up until 16 December, 2010.

21. Ms H reports that therapy was ceased due to the improvements that were reported by the mother about B’s behaviour at home and Ms H’s assessment that the mother displayed increased insight into how to communicate in an attuned way with her daughters on a range of topics including protective behaviours and difficult emotions. The mother is reported also as appearing to have gained confidence “in increasing [B’s] sense of safety, self worth and personal agency.”  Ms H does not report that any disclosures were made by the child to her during those counselling sessions. Otherwise, there is nothing further reported by Ms H that I consider weighty in assessing whether there is risk of sexual abuse if the child, B, is to spend time with her father and, if so, the magnitude of that risk.

22. There was other evidence of relevance to the assessment of the issue of the alleged sexual abuse. The mother painted a picture of the father as a man with a demanding sexual appetite and a propensity to aberrant sexual behaviour. Before I refer to that though, I shall set out some factual history of the parties’ relationship.

23. The mother and father apparently met through the medium of the internet when the father was living here in Brisbane and the mother in Russia. The father travelled to Russia and met the mother for the first time in approximately October, 2003. After a short stay together in Russia, the couple travelled to Country 2 where they stayed for about two weeks. In 2004, the father travelled back to Country 2 and stayed for a further 3 months with the mother and her parents in their home. He then returned to Australia whilst arrangements for a marriage were put in place. They married in Southeast Asia in July, 2005, and then returned to Country 2 to live for a few months.

24. The father returned to Australia in November, 2005 whilst the mother was pregnant.  The mother waited in Country 2 for her visa to be approved so that she, J and the baby, B could come to live in Australia.

1. In November, 2006, the mother and the two girls moved to Brisbane and took up residence with the father. B was only seven months old. After just less than a year, the mother and the two girls went back to Country 2 in September, 2007.  They returned to Australia at the end of February 2008. The mother’s evidence, supported, in my view, by a copy of a page from her passport showing the relevant visa stamp, was that she obtained permanent residency in Australia in early December 2008.  The father had given a different and later date as the date upon which the mother obtained permanent residency. The mother’s passport suggests he was wrong about that. As I have already noted, the mother and the father separated in July 2009.

2. As to the father’s sexual behaviour, the mother asserted that when they were living together in Country 2 for the four months or so after they had married that the father overtly carried on sexual relationships with other women whilst he was there, without apparent regard for the mother’s feelings. She asserted that he had infected her with a sexually transmitted disease during that time, whilst she was pregnant with B. Dr M, in her report noted that the mother told her the STD referred to was gonorrhoea. The mother asserts that when B was born her eyes were infected with it and she could not see for several months. The mother and baby were both hospitalised as a consequence, the mother asserted.

3. The father denied these allegations and whilst the mother said in her oral evidence that there were medical records in Country 2 that would corroborate her allegations about her and B’s infection with the STD, she put no such corroborative medical information into evidence. Although there was quite some detail to the mother’s story about this alleged infection, I was left harbouring doubts about the mother’s veracity on this point, particularly so after considering her explanation for coming out from Country 2 with the two girls in November 2006 notwithstanding the facts she had alleged against the father in respect of his infidelity and the passing on to her and the unborn child of a serious STD whilst with her in Country 2. When asked why she nevertheless travelled to Australia with the girls to be with the father after that, the mother said simply that she considered herself married and that she wanted her marriage to work.

1. The mother gave some more evidence that I found startling. Though remarkably the mother made absolutely no mention of it in her affidavit of evidence in chief filed 1 February, 2011, in her affidavit of evidence filed 7 February, 2011, in which she responds to the father’s affidavit of evidence in chief, the mother asserted that during the first period of time that she was living with the father in Australia (November 2006 to September 2007) she “woke up to see [the father] masturbating”. She mentioned that the children’s bedroom, where she saw this, was “far away from the computer” in that unit. That is a reference best understood when considered against her evidence about another incident in another unit in which they later lived. As to the earlier incident, the mother said that when she saw the father masturbating “[h]e was half sitting half standing near [B’s] bed which was adjacent to [J’s] bed in the children’s bedroom.”  It is to be remembered that B was only still an infant at that time.  In her affidavit, the mother said that she moved into the children’s bedroom after she saw that, telling the father she was doing that so that she could breastfeed the baby.

2. When the mother was asked in Court about her immediate response to what she said she had witnessed, she said that she simply remained silent and went back to bed, afraid to say anything to the father for fear of a violent response from him.  That evidence surprised and troubled me.  It is not a response that I expected.

3. In the same affidavit, the mother said that she and the father had been separated under the one roof in the second unit they lived in before the separation in July 2009. The mother said that she “left the matrimonial bedroom after about one month from moving into [their] second unit after [she] saw [the father] viewing pornography on the computer. I saw [the father] looking at pornography on the computer many times and I saw him masturbating whilst watching the computer. The computer was located next to the children’s bedroom. The children’s bedroom was next to the main bedroom. [The father] accused [J] (she was about 8 at the time) that she had been watching the material This made [J] upset and she did not know what he was talking about.”  The mother’s evidence was that she again went into sleep in the girls’ bedroom with the girls from that time on.

4. Again, the father denied the allegations made by the mother and once again, I must say, I found myself, after observing the mother giving her evidence about this factual issue in the witness box, having serious doubts about her veracity on this issue. It is to be remembered that the mother and girls returned to Country 2 to live for several months after the first period during which the mother said she witnessed the father masturbating “half sitting half standing” very near the girls’ beds and quite a distance from the computer. There is other evidence of the mother that the circumstances under which she and the girls returned to Country 2 on that occasion were unhappy as between her and the father, as he was, according to her, unwilling to financially support them. 

5. I find it extremely difficult to accept that the mother would return, with the two girls, to the relationship with the father in Brisbane in February, 2008, after the experiences that she has asserted had already confronted her with respect to the father both before she followed him to Australia and during the first period that she lived with him here, particularly given how she now asserts those experiences so troubled her at the time.  Given the mother’s return from Country 2 to the relationship with the father, not once but twice, I find myself seriously doubting the veracity of her evidence about these startling matters.

1. The mother also alleged that on one occasion during their cohabitation in Brisbane the father, in the mother’s presence, asked her daughter, J, to give him a massage to which the mother took great objection, saying it was inappropriate for the girl to give the father a massage. The father denied he had ever done so. The mother’s evidence did not go as far as including any other detail that caused me to be particularly concerned about that matter, even if it did happen. But again, I was left struggling to accept that it had actually happened as the mother related it.

2. There was also evidence that on one occasion when the father, the mother and J were apparently watching TV together, J was lying on the floor in front of the father who was seated on the lounge. She was apparently only wearing underpants on the lower half of her body and the father said that she should put some shorts or something else on. The mother related this event as if it was evidence of the father inappropriately looking at J’s bottom. The father acknowledged the event in his evidence but related it as just an occasion of his having remarked on the child’s under-dressed state so that it could be rectified by her putting some more clothes on. I accept the father’s explanation as reasonable in the circumstances.

3. The father asserts that the mother has concocted the allegations of sexual abuse against him to deny him a relationship with the child, B. He asserts that she has made up these allegations about the matters that I have just referred to in the previous paragraphs as part of this scheme that was put together by the mother shortly after the mother was served with the father’s application for parenting orders on 23 November, 2009. In fact, the father asserts that the mother contacted him shortly after she was served with the proceedings and said to him “you are trying to take [B] from me”. He says he had his solicitors write to her in response to reassure her that he was not and that he was simply only seeking to spend regular time with B. The father’s evidence is that when the mother received that letter from his solicitors the mother contacted him telling him that she wanted to reconcile their relationship, an offer that he immediately interpreted as being nothing more than an attempt to delay the hearing of his application for parenting orders that the child spend more time with him.

4. Of course, if the mother has made up the allegations, she has, perhaps, also involved her elder daughter, J, in the scheme. If true, that could have serious detrimental affects on J’s emotional wellbeing, in addition to any it might already have had on B’s.

5. If the father’s assertions are correct then, of course, they call into question the willingness and ability of the mother to facilitate, and encourage, a close and continuing relationship between B and her father. Indeed, Mr C expressed the opinion, at paragraph 49 of his report, that the mother did not seem to place much importance on B maintaining a significant relationship with the father. Mr C based that opinion, at least, on the mother telling him that she considered it “not important” for B to visit her father, and, probably also, on her record of not presenting B to the contact centre consistently and regularly after FM Purdon-Sully’s February 2010 order.  Of course, I also recognise that conduct like that on the part of the mother is, at the same time, not inconsistent with an honestly held belief by her that the father has done the things that she says he has done and that he has perpetrated sexual abuse on their child.

6. I observed that the father appeared to be very nervous when he was cross-examined. His evidence was, however, that he has suffered from anxiety all of his life and also suffers from panic attacks. That was not put in issue. He was, notwithstanding his nervousness, firm and consistent in his denials of the allegations as they were put to him by the mother’s counsel. Of course, it is not unusual for sexual abusers to deny allegations that they have sexually abused. However, there was nothing about the father’s demeanour and the substance of his oral evidence that gave me any particular cause to doubt his veracity.  Some of his evidence about matters that he had asserted as against the mother that were denied by the mother, and upon which he was challenged in cross-examination, had, as I remarked at the time in the trial, a distinct ring of truth about it. In particular, I refer to his evidence that the mother had taken his credit card without his knowledge and permission and that when she went to use it to obtain cash from an automated teller machine that it was retained by the machine, forcing her to disclose her actions to him, after which bank employees had to be asked to retrieve the card from the machine for him. I believed the father’s evidence about that and did not accept the mother’s denial of that.

7. The father was also supported in affidavit evidence by, separately, his former wife, his adult son and his son’s wife. They have all been supervisors of time that B and J have spent with the father over the last year, fully aware of the allegations made by the mother. They all remarked on the warmth of the relationships they have observed that the father has with the girls. The father’s former wife said that it has become increasingly difficult for her to supervise the time that B (and J) spend with the father. I accept, by inference, that she expresses confidence that there could readily be a move to an arrangement where the time the girls spend with the father is no longer supervised   She was not cross-examined by counsel for the mother, nor were the father’s adult son and his wife.

8. Finally, in respect of the assessment of the sexual abuse issue, I remark that the mother sending the children to spend what was apparently unsupervised time with the father on two occasions after the time when B is said to have made the disclosure that her father touched her on her “pissya” appears, to me at least, to be inconsistent with the holding of an honest belief that he had done that. That inconsistency was not sought to be explained by the mother. That inconsistency of action, particularly, causes me to further seriously doubt the veracity of the mother’s assertions that B disclosed to her before Christmas such information that caused the mother to truly believe that the father had actually sexually abused B.

9. Ultimately, considering the whole of the evidence in this matter, and, more particularly, having regard to all of those matters I have just discussed, I cannot say that I am satisfied to the requisite standard that sexual abuse of B has occurred at the hands of her father. Whilst I stop short of an absolute finding that the father has not sexually abused B, such a finding being, as a matter of course, I acknowledge, very difficult to make, I do find that it is most unlikely in this case that he did.

10. I am not, in all the circumstances, prepared to go as far as finding that the mother has made up the allegations about that which B is alleged to have said or that she has intentionally involved her daughter, J, in pretence. That is as much because I do not consider that there is actually any pressing need for such findings considering the competing parenting applications that are before me and my current views about what parenting arrangements will meet the best interests of B as it is about not actually being satisfied to the requisite degree to be able to make those findings. 

EQUAL SHARED PARENTAL RESPONSIBILITY

1. Accordingly, I do not find that the s.61DA presumption is rebutted due to sexual abuse perpetrated against B or her sister, J, by the father. As to the remaining issue relevant to the existence of the presumption that it is in the best interests of a child for the child’s parents to have equal shared responsibility for the child, namely whether or not there are reasonable grounds to believe that a parent of the child has engaged in family violence, as I have observed already, both the mother and the father have made allegations that the other has engaged in family violence (that falls within the definition of that term contained in the Act) at some time in the relationship. I will not set out the detail of the allegations that each makes against the other.

2. I do not because I consider, on all the evidence in this case, that even if I was to find that one of the mother or the father or both of them had engaged in the family violence that is alleged (independently of the sexual abuse allegations) by each against the other sufficient to rebut the presumption, that it is nevertheless in the best interests of the child, B, for both the father and the mother to have equal shared parental responsibility in any event and I intend to make an order providing for it.  I do not intend to trivialise the issue of family violence by taking this course but rather to avoid having to make findings about it that I do not consider necessary in determining the proper parenting orders in this case.

3. I am particularly mindful of the meaning of ‘parental responsibility’ as ascribed by s.61B of the Act being ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. I am particularly mindful of the effect of a parenting order that provides for shared parental responsibility as set out in s.65DAC of the Act. That section provides that such an order requires each of the parents, when making a decision about a major long-term issue in relation to the child to make the decision jointly and, in doing so, to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.

4. I am left with no doubt in this case that the father wishes to have an ongoing, meaningful relationship with his daughter, B. I find on the evidence that the child, B, does already have a relationship with the father that can truly be described as meaningful. I find that it is in B’s best interests for her to have such a relationship with her father and, therefore, to be given every opportunity for same to continue to develop. Therefore, I consider that B would benefit from the involvement of both of her parents in making decisions about the long-term issues that do and will affect her life. I find nothing that causes me to consider that the father would not be able to appropriately participate in the decision making process in respect of the long-term issues in relation to the child or that his participation in such a process would be contrary to B’s best interests.

5. Although, I find, considering all of the evidence, that B’s best interests require her to continue to live with, and to be principally cared for by, her mother, I am concerned, as was Mr C by his account, that the mother does not necessarily regard the maintenance and furtherance of the relationship between B and the father as very important for B. Accordingly, I consider it critical that an equal shared parental responsibility order be put in place that will require, by force of law, in particular, the mother to consult the father in relation to decisions to be made about long term issues concerning B and to make a genuine effort to come to a joint decision with him about that issue. Therefore, I do not consider it necessary, at least in this case, to have to determine whether  the presumption is rebutted and then to go on, in any event, to determine that it is nevertheless in the child’s best interests for an equal shared parental responsibility order to be made.

IS THERE AN UNACCEPTABLE RISK TO THE CHILD AND, IF SO, WHAT IS THE MAGNITUDE OF THAT RISK?

1. I cannot on all of the evidence in this case make a finding that the father definitely did not sexually abuse the child, B. Cases in which sexual abuse allegations are raised against a parent in which such a definite finding can be made are, at least in my view, likely to be rare. Nevertheless, I have, though, made the finding that it is very unlikely that the father sexually abused B as the mother says she believes he did. Accordingly, I do not find that making parenting orders that provide for B (and, indirectly, her sister, J) to spend some regular time with the father that is unsupervised would place either of them in a position of unacceptable risk to their physical and emotional well-being such that it should not happen. I will be making parenting orders that provide for the child and, potentially, J, to spend such time with the father.  I consider that the orders I propose to make address and deal with all residual risk that remains.

SHOULD IT BE EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME?

1. Moving, as required, to the s.65DAA consideration process, given that I will be making an equal shared parental responsibility order, I readily determine in the circumstances of this case that spending equal time with each of the mother and the father would neither be in B’s best interests nor reasonably practicable having regard to the matters required to be considered in this regard (the reasonable practicability issue) as prescribed in s.65DAA(5) of the Act. As well as noting at this point that the father does not himself seek an order that B does spend equal time with him, I note a number of matters that I consider as being immediately determinative of both of these issues. They are (and they are not necessarily the only such determining factors):-

   (i)that the child has only spent limited, supervised time with her father in the last twelve months and any move to spending equal time with her father now would likely have a very negative impact upon her given her young age and her undisputed primary emotional attachment to her mother;

   (ii)the father does not have suitable accommodation arrangements to house the child as he remains living in a shared house with two other single, unrelated men with no apparent immediate financial prospect of being able to change that to something more appropriate in which to accommodate the child;

   (iii)that no order is sought by the father in respect of J and, accordingly, there could be no expectation that J would accompany B to her father’s in an equal shared care arrangement and the two sisters are so close that they should not be spending much, if any, time not living together in the same household.

2. As to consideration of whether a “substantial and significant time” order, as that term is defined in s.65DAA(3) of the Act, is in B’s best interests and reasonably practicable, I am satisfied that it is in B’s best interests to spend time with her father on days that fall on weekends and holidays and on weekdays, albeit with some limitations as to timing and duration on those days because of regard I have to the matters I set out in the immediately preceding paragraph, as well as other s.60CC considerations.

3. I do consider, notwithstanding those limitations that I intend the parenting orders to include, the orders will allow the father to be involved in aspects of the child’s daily routine and occasions and events that are of particular significance to the child and of special significance to the father. In that regard, I consider that the orders that I will be making will provide for the child, B, to spend “substantial and significant” time with the father in a manner that is in her best interests and is reasonably practicable. The parents live close enough to each other for it to be practicable for them both to comply with the orders that I propose to make. That much they have proven by their immediate post-separation conduct and by their conduct since the interim parenting orders made by O’Reilly J on 8 July, 2010. I consider that they both have the capacity, which is likely to continue to improve in time as these proceedings become further behind them, to implement the arrangements that the orders I propose to make will put in place. Whilst I have some reservations about their current capacity to communicate appropriately with each other so as to resolve any difficulties that might arise in implementing the arrangements that the proposed orders will put in place, I am satisfied that the arrangements will be such that only a limited amount of communication between them will be necessary in any event. I consider their capacity to be able to achieve the level of communication that the proposed orders will require now and, more relevantly, in the future is sufficient such as to satisfy me that the proposed orders are reasonably practicable. I am also satisfied that the impact on B of the arrangements that are encompassed within the proposed orders will be such that I could not say that it is not reasonably practicable to make them because of such impact. I am satisfied that B will readily adapt to and cope with the arrangements, particularly if her sister accompanies her as is proposed to be provided for.

1. Between separation in the middle of 2009 and January 2010, the children both spent time with the father in blocks of a few hours at a time relatively frequently. On the evidence, I find that the father, although living in his share accommodation arrangement, undertook appropriate activities with the girls, generally, away from that home.

2. Since O’Reilly J’s orders, the girls have spent longer blocks of time with the father, including regularly during the daytime on each day of alternate weekends. That time has been spent supervised by either Ms S or Ms R and the father’s adult son, Mr P, has often been present. The evidence, which I accept, is that the father has been undertaking appropriate activities with the children. They have furthered their relationships with him and also with his extended family. I consider it appropriate to put in place orders that allow the child (and J if that be J’s and the mother’s wish) to spend slightly longer time with the father during the daytime on alternate weekends and also for a few hours after school each Wednesday. The father can, as I expect he probably will from time to time, make his own decisions about whether or not he spends any of that time with the child (and J if she accompanies B) in the company of Ms S, Mr P or Ms R. I am satisfied that he will undertake appropriate activities with B (and J if she is with B) during that time such that the time spent together will benefit the child. The provision for the child to spend a few hours with him from immediately after school on Wednesdays allows the father to have some communication and interaction with the child’s school, including her teachers, if that is what he chooses to do. He may even be able to assist the child with any homework tasks she is given on those days. I find that the father utilising those opportunities, which I expect he might, will benefit the child. Seeing and experiencing her father having a positive involvement in those aspects of her life has to benefit the child.

3. I also consider it in the child’s interests to be able to spend time with the father during school holidays. The orders I propose to make will provide for the child to spend time with the father, at his election, during the first half of the end of term holidays each year and during the first week and the last two weeks of the Christmas school holidays each year.

4. The orders that I will make do not provide for any overnight time to be spent by the child with the father in the first six months after the orders are made. I consider that period of six months a suitable lead in period, in the circumstances of the case, for the child to become accustomed to spending regular, longer periods of time in her father’s care without having one of his family members around in a supervisory capacity. The orders will provide for the child to spend overnight time with the father thereafter on the alternate weekends during school terms and in the school holidays but only in circumstances where the father is staying in accommodation with one or more of his former wife, his adult son, Mr P, and his daughter-in-law, Ms R. I consider this condition necessary because it is not appropriate, at least in my view, in all the circumstances of this case, for the child to spend overnights with the father in his current share house accommodation and also because there is no apparent, clear prospect of the father’s circumstances changing in the near future such that he can properly accommodate the child on overnight visits, save for his being able to have the child stay with him in the home of one of his extended family members or, at least, for weekends or holidays away with one or more of those family members. As the child already has relationships with each of these other persons, the imposition of such a condition will allow her to continue her relationships with them, as well as further her relationship with the father.  It should also assist the mother to be able to cope, to the extent that same may be necessary, with the transition to overnight time being spent by the child with the father.

5. At the same time, the orders I propose to make will provide for the father to give the mother timely notice in writing of his intention to have the child stay overnight with him on any of those occasions and details of the place of proposed accommodation and person or persons who will be staying with him.

6. Clearly, should the father, at some time in the future, be able to secure accommodation for himself on a permanent basis that makes it possible for him to appropriately accommodate the child for overnight visits, I expect the orders I propose to make should be able to be varied by agreement between the parties to facilitate such arrangements. Without intending to bind any judicial officer who might have to consider the issue at some later stage, I would, at least, consider same should amount to a change of circumstances sufficient to justify a reconsideration of the parenting orders should the father present with his own accommodation in which he could accommodate both girls privately and securely and the mother not willingly move to a facilitation of same.

7. I propose to make orders that provide for the child to spend, again at least for the foreseeable future, no longer than two weeks in one period during the longer Christmas school holidays. In the circumstances of the case, I consider any longer than that would be too long for the child, at her age, to spend away from her mother with whom she is most securely attached, when she has spent such short periods of time with her father over almost the last two years. Again, that is something I would expect the mother and the father to be able to reasonably review after a couple of years.

8. The orders I propose will provide for the child to spend time with the father on days that are special to the father and the child such as Christmas Day (alternating from morning to afternoon each year), Father’s Day,  and his and her birthdays. I am satisfied that is in her best interests. Similarly, the orders will provide for the child to be with her mother for some time on Christmas Day, for Mother’s Day and for the mother’s birthday, the child’s birthday and the child’s sister’s birthday. That, too, is in her best interests.

9. For the periods the child is spending time with the father on weekends and in school holidays, I propose orders that require the father to collect her from her mother’s home at the commencement of such time and the mother to collect her from her father’s home at the conclusion of such time. This way each parent shares equally in the transporting obligations and normality is otherwise presented to the child in circumstances where I do not find that the relationship of the parents is such that they will not be able to communicate in a reasonable, child-focused fashion at all such transitions.  I expect those transitions can be done speedily with a minimum of fuss and a minimum of communication required in the presence of the child with the child seeing her parents managing the process well.

10. The orders I propose to make provide for the child to be able to communicate by telephone with the father regularly between the times she spends with him and also to be able to communicate by telephone with the mother during extended time with the father during school holidays. Such regular and consistent telephone communication on set days and at set times provides certainty and routine for the child and the parents. That certainty and routine is in the child’s best interests, I find, as is the ongoing communication with the father between periods of time spent with him.

11. I propose to make orders that provide for the parents to keep each other informed of their addresses and phone numbers,  that restrain the parents from denigrating each other in the presence of the child and from talking about these Court proceedings with the child. I propose to make orders that the mother keep the father advised as to the school and other organisations the child attends as well as any medical professionals the child attends. The orders will also permit, as it is in the child’s best interests, the father to have contact with and obtain information from any of those professionals, schools or other organisations.

12. The father sought orders that provide for the child, B, to spend time with him. He opposed the making of orders that provide for B’s sister, J, to accompany B when she spends time with him. I got the impression from the submissions made by his counsel in respect of this matter that the father simply wanted to retain the right to determine whether he had both girls spend time with him or just B by herself from time to time.  In contrast, the ICL sought orders that provide for J to accompany B. The mother, too, sought orders that required her to use her best endeavours to have J accompany B. The evidence, as I have mentioned, was that the two girls have a strong attachment and a positive relationship. J’s presence with B will, I find, provide B with comfort and reassurance which, in all the circumstances of this case, particularly the limited nature of the time that B has spent with her father over the last eighteen months, is certainly in her best interests. It will also provide the mother with comfort and reassurance, to the extent that same may be necessary, knowing that J, who is older and more mature, will be there with her younger sister. There is no evidence to suggest that the relationship between J and the father is such that she should not or will not attend along with her sister. To the contrary, the evidence suggests a positive and warm relationship between the father and J. Accordingly, I determine it to be in B’s best interests that orders be made requiring that B be accompanied by J when she spends time with the father notwithstanding the father opposing such orders. However, short of ordering that the mother force J to go I propose to order, as counsel for the ICL and counsel for the mother both submitted I should, that the mother do all she can, that is by using her best endeavours, to have J accompany B with the father having no right to veto J’s attendance if she accompanies B.

13. The father seeks orders that restrain the mother from removing the child from Australia without his written consent. That application is supported by the ICL. Country 2 is not a signatory to the Hague Convention. Without restraint, the mother could, I find, easily return to that country with her two daughters and remain there. Her family live there. She still has strong ties to that country and could easily live and work there, I find. Her ties in this country are not yet as strong such that would satisfy me that she would be most likely to return the child to Australia after any journey overseas. In these circumstances, and given the concerns I have about the mother’s level of commitment to the furthering of B’s  relationship with the father, I am satisfied that there is an unacceptable risk of the mother not returning the child to Australia if she was to take her out of Australia. Accordingly, I determine, consistent with the child’s best interests at this time, that the mother shall be restrained from taking B out of the country and I propose to make orders that provide such restraint and place the child’s name on the airport watch list.

14. I have also determined that it is in the child’s best interests for both of the parents to attend and complete a post-separation parenting orders program offered by a Family Relationship Centre service provider with the aim being to improve the manner in which they communicate with each other and the respect they have for each other’s place in the child’s life. Each shall have twelve months within which to complete the course and will each have to provide evidence of completion to the other.

15. I order in accordance with the orders that are set out at the commencement of these reasons.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 April 2011.

Associate: 

Date:  21 April 2011