Marriot & Rossum
[2023] FedCFamC1F 1035
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Marriot & Rossum [2023] FedCFamC1F 1035
| File number(s): | PAC 1660 of 2021 |
| Judgment of: | HOGAN J |
| Date of judgment: | 8 December 2023 |
| Catchwords: | FAMILY LAW – PARENTING – Where the mother alleges that the child has been sexually abused by the father and paternal grandfather – Where the father and the paternal grandfather deny all allegations that they sexually abused the child – Whether the child would be at an unacceptable risk of sexual abuse if she spent unsupervised time with the father – Whether the child would be at an unacceptable risk of psychological harm if she continues to live with the mother – Where the father and paternal grandfather are found not to pose an unacceptable risk – Where it is found that the child will be at an unacceptable risk of suffering psychological harm if she spends unsupervised time with the mother – Where a moratorium of time is appropriate – Where it is in the best interests of the child that the mother is restrained from approaching the child’s home, school or any place at where the child is engaged in extra-curricular activities |
| Legislation: | Australian Passports Act 2005 (Cth) Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) |
| Cases cited: | A v A (1998) FLC 92-800; [1998] FamCA 25 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 CDJ v VAJ (1998) 197 CLR 17; [1998] HCA 67 Eastley & Eastely (2022) FLC 94-094; [2022] FedCFamC1A 101 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235 M v M (1988) 166 CLR 69; [1988] HCA 68 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 Morden & Coad [2019] FamCAFC 233 N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 |
| Division: | First Instance |
| Number of paragraphs: | 108 |
| Date of hearing: | 27, 28, 29 & 30 November 2023 and 1 December 2023 |
| Place: | Parramatta |
| Counsel for the Applicant: | Mr Duc |
| Solicitor for the Applicant: | Legal Aid NSW |
| Counsel for the Respondent: | Ms Edwards |
| Solicitor for the Respondent: | Khalil Family Lawyers Pty Ltd |
| Counsel for the Independent Children's Lawyer: | Ms Hayward |
| Solicitor for the Independent Children's Lawyer: | Shedden & Associates |
ORDERS
| PAC 1660 of 2021 | |||||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) | |||||
| BETWEEN: | MR MARRIOT Applicant | ||||
| AND: | MS ROSSUM Respondent | ||||
| INDEPENDENT CHILDREN'S LAWYER | |||||
ORDER MADE BY: | HOGAN J | ||||
DATE OF ORDER: | 8 DECEMBER 2023 | ||||
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1. All parenting plans and previous parenting orders are discharged.
2. The child, X, born 2018, live with the father from the rising of the court today.
3. Pursuant to s 68B of the Family Law Act 1975 (Cth) the mother, her servants and/or agents be and are hereby restrained by injunction from removing the child from the Court Children’s Service at Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta.
4. The mother shall leave the Court precinct immediately upon the rising of the Court today.
5. Court Children’s Service is authorised to deliver the child, X, born 2018, into the care of the father, Mr Marriot, following the explanation provided by the Court Child Expert in compliance with Order 3 of the Order made on 1 December 2023.
6. The father have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth), relating to the child.
7. Within forty-eight (48) hours of the making of this order, the mother shall provide to the father, by correspondence directed to his solicitor:
(a) a list of all of the services with which the child is currently engaged, including those in respect of which her name is on a waiting list for the provision of services, with such list to include the name, addresses and contact details of the service providers; and
(b) a copy of any report in relation to the child which has been prepared within the previous twelve (12) months by any service provider.
8. Within seven (7) days of the date of this order the father shall make an appointment for the child to attend upon a general medical practitioner for the purpose of obtaining a mental health care plan to facilitate the provision of counselling or other mental health services to the child and he shall then implement any reasonable recommendations contained within such plan.
9. Pursuant to s 68B of the Family Law Act 1975 (Cth) the mother, her servants and/or agents be and are hereby restrained by injunction from spending time with, contacting or communicating with the child by any means for 18 weeks from the date this order.
10. Following the expiration of 18 weeks from the date of this order, the child shall spend time with the mother on one occasion per fortnight, for no less than two hours per visit, with such time to occur:
(a) under supervision provided through B Family Services, Suburb E (or another supervised contact service as is agreed between the parents in writing); and
(b) on such days and at such times as are prescribed by B Family Services or such other supervised contact service as has been agreed between the parents in writing.
11. Each parent shall contact B Family Services within forty-eight hours of the making of this order and each shall then:
(a) attend any assessment or intake session (however described) required by the contact centre as a condition for the provision of its services; and
(b) attend at any appointment made by B Family Services; and
(c) comply with all reasonable rules imposed by B Family Services as a condition for the provision of its services; and
(d) comply with all reasonable requests or directions made by staff of B Family Services; and
(e) share equally in meeting the fees charged by B Family Services for the provision of its services.
12. In the event that B Family Services is unable or unwilling to provide supervision as set out in this order then:
(a) the parents shall, within seven (7) days of being notified of the service’s inability or unwillingness to provide supervision, attempt to agree upon an alternative supervised contact service; and then
(b) if the parents are unable to agree on an alternative supervised contact service within the time prescribed above:
(i) within a further seven (7) days: the father shall provide the mother, in writing, with the names of three alternative supervised contact services; and then
(ii) within a further seven (7) days: the mother shall select one of the three (3) alternative supervised contact services from the list provided by the father and shall advise the father in wiring of her selection; and then
(iii) within a further forty-eight hours: both parents shall contact the selected alternative supervised contact service and shall do all things necessary to enrol in the first available intake session or assessment; and thereafter
(iv) both parents will do all things necessary to arrange for the supervised time prescribed by this order to occur at the alternative supervised contact service, including attending at any assessment or intake session (however described) required by the selected alternative supervised contact service and meeting equally that service’s costs of providing supervision.
13. Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother, her servants and/or agents be and are hereby restrained by injunction from:
(a) attending at any school or other educational facility of any kind at which the child attends; and
(b) coming within 100 metres of any school or other educational facility of any kind at which the child attends; and
(c) attending at any location at which the child participates in any extra-curricular activities; and
(d) coming within 100 metres of any location at which the child participates in any extra-curricular activities; and
(e) coming within 100 metres of the child’s residence, save as permitted by the father in writing; and
(f) having any contact or communication with the child other than as is prescribed by this order or agreed between the parents in writing.
14. The father shall keep the mother informed at all times of his residential address and a telephone number, including a mobile telephone number, and an email address by which he can be contacted and shall advise her of any change to such details within twenty-four (24) hours of the change occurring.
15. The mother shall keep the father informed at all times of a telephone number, including a mobile telephone number, and an email address by which she can be contacted and shall advise him of any change to such details within twenty-four (24) hours of the change occurring.
16. During the time the child is spending time with a parent, that parent shall:
(a) respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) speak of the other parent respectfully in the presence of or hearing of the child; and
(c) not denigrate or insult the other parent in the presence or hearing of the child and shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d) refrain from involving the child in any parental conflict.
17. Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them.
18. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child X, born 2018, be permitted to have a passport or an Australian travel document (as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally for the purpose of holiday travel.
19. Within fourteen (14) days of a written request from the father, the mother do all such acts and sign all such documents as may be required to apply for or renew a passport (or Australian travel document) for the child or any other documents deemed necessary for the purpose of overseas travel.
20. In the event the mother refuses or fails to sign the application for the child’s passport or Australian travel document then:
(a) the father shall be entitled to seek the passport (or Australian travel document) to issue without the written consent of the mother and it is requested that an Australian travel document issue for the child notwithstanding the mother’s refusal or failure to provide her written consent; and
(b) any requirement for the signature or consent of the mother be dispensed with and the father is at liberty to do all acts and sign all documents necessary and have such authority as is necessary, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) (as amended) to procure a valid Australian travel document for the child without the signature or consent of the mother, including that the father is authorised to sign all documents on behalf of the mother; and
(c) the father may seek that the Minister administering the Australian Passports Act 2005 (Cth) consider issuing an Australian travel document pursuant to s 11(2)(a) of the Australian Passports Act 2005 (Cth).
21. The costs of the child’s Passport Application or renewal shall be paid by the father and the child’s passport shall be held by the father.
AND IT IS FURTHER ORDERED THAT
22. Each parent and the Independent Children’s Lawyer have leave to provide a copy of the Order made 8 December 2023, the Reasons for Judgment published in support of the same, the Child Impact Report dated 18 January 2022, the Family Report authored by Ms C, dated 7 March 2023, and the report authored by Ms F, dated 10 August 2023, to:
(a) any psychologist, counsellor or other therapist upon whom the parents and/or the child attend/s for the purpose of therapy; and
(b) the Department of Communities & Justice and/or the authority of any State or Territory responsible for child protection; and, if necessary
(c) any member of the New South Wales Police Service, the police service of another State or Territory and the Australian Federal Police.
23. Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than any proceeding associated with this proceeding or any appeal in respect of this Order.
24. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
AND IT IS FURTHER ORDERED THAT
25. All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
26. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
NOTATION
A. There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B. The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marriot & Rossum has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are in the best interests of X, who was born in 2018.
X’s parents, who first met when they were in their late teens, have never lived together. Whilst the father’s evidence included that their sexual relationship first commenced when they were in their early twenties and continued thereafter for a period of about 13 years on the basis that he spent a number of nights each week at the mother’s home during which time they were physically intimate, the mother’s evidence included that she and the father only had sexual intercourse on one occasions and that this was productive of X.
To the extent that it is necessary to resolve this difference, I think it much more likely than not that the relationship between X’s parents unfolded as the father recounted – that is, whilst they never lived together, the parents knew each other, including intimately, for a lengthy period of time, albeit that their relationship was attended by periods of absence.
X has always lived with her mother and continues to do so. The father continues to live with the paternal grandfather as he has for many years. X’s time with her father to date
The father and X have only spent very limited time together.
In the almost three years which preceded the father commencing proceedings in the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia (Division 2) was then known) on 31 March 2021, X spent time with her father as follows: (a) from her birth in 2018 until April 2019: between one and five occasions each week, on a sporadic basis;[1] and then (b) from April 2019 until around October 2019: whilst the mother said that the father chose not to see X for six months, his evidence included that he initially saw her once or twice each week and then the time decreased in frequency to once each week (and for shorter durations), until the mother refused to allow X to spend time with him;[2] and then (c) from October 2019 until April 2020: on a sporadic basis. [1] Affidavit of the mother filed 23 November 2023 at paragraph 36. [2] Affidavit of the mother filed 23 November 2023 at paragraph 37; affidavit of the father sealed 13 October 2023 at paragraphs 88-91.
X did not spend time with the father from about 25 April 2020 until 30 June 2021.
After Judge Myers made an interim parenting order on 30 June 2021 which provided, amongst other things, for X to spend time with the father from 10.00 am until noon every Saturday and for such time to be supervised by a person agreed between the parents, X spent time with her father and the paternal grandfather on 13 occasions – nine of these visits were of two hours’ duration and four of these visit were of four hours’ duration; all were supervised by the paternal grandfather.
After Judge Myers made a further interim parenting order by consent on 23 September 2021 (which order provided, amongst other things, that X spend time with the father from 10.00 am until 1.00 pm on either Saturday or Sunday of each week and on Christmas/Boxing Day), X spent time with the father on 25 September 2021, 1 October 2021 and 9 October 2021.
X ceased spending time with the father after the mother reported to the police and the Department of Communities & Justice (the Department), in late 2021, that X had told her the things summarised in the Schedule.
On 22 April 2022, a further interim parenting order was made by consent. The April 2022 order provided, amongst other things, that X spend two hours each week with the father (with such time to be supervised and occur at B Family Services, City D) and communicate with him via a video call on her birthday and as agreed between the parents. The mother was required to provide the father with details about the general practitioner upon whom X attended.
X spent time with the father at the contact centre on 10 July 2022; she refused to spend time with him on 24 July 2022 and 7 August 2022.
On 8 May 2023, a further interim parenting order was made by consent in terms which provided for: X to attend upon a paediatrician as agreed between the parties, the mother to attend her general practitioner for a mental health assessment (and provide the same to the Independent Children's Lawyer and the father’s lawyers) and undertake any recommended treatment; the father to be restrained from approaching X’s school and from removing her from school.
Between May 2023 and the start of the trial on 4 December 2023, X spent time with the father at the contact centre on 17 September 2021 (although the father was outside of the playroom, he and X could see each other) and 1 October 2023. X refused the visits on 29 October 2023 and 12 November 2023. Broad overview of the competing proposals The father[3] [3] Amended Initiating Application sealed 29 September 2023.
The father sought that orders be made to accord him sole parental responsibility for the major long-term issues relating to X and for X to live with him. He initially proposed that, after a three-month moratorium over X’s time and communication with the mother, X spend time with the mother as follows: (a) for twelve (12) visits: for no less than two hours each fortnight, with such time to be supervised and occur at B Family Services, Suburb E (and for the parents to share equally in the costs of the same); and then (b) for six (6) visits: each alternate Sunday from 10.00 am until 3.00 pm; and then (c) each alternate weekend from after school or 3.00 pm Friday until the commencement of school or 8.30 am Monday.
The father also proposed that, after X started to spend alternate weekend with the mother, she also spend half of the school holidays with each of her parents and also spend time with both of them on or during celebratory occasions such as at Easter and at Christmas.
Although the father's formal position did not change after the evidence closed (other than to take up the suggestion made by Ms C[4] that the duration of the proposed moratorium over X's time with her mother should extend to about six months), the submissions made by Counsel for the father ultimately expressed support for the position advanced by the Independent Children's Lawyer. The mother[5] [4] The author of the Family Report. [5] Amended Response to Initiating Application sealed 23 November 2023.
The mother sought that orders be made to accord her sole parental responsibility for the major long-term issues relating to X and for X to live with her. She proposed, via her formal court documentation, that X spend supervised time with the father each alternate Saturday from 11.00 am until 12.30 pm and that such time occur at B Family Services Suburb E.
However, when cross-examined, the mother said that, provided that it was supervised, she did not really care whether X’s time with the father was for the duration suggested in her Amended Response or longer or where it occurred: that is, she did not necessarily require that X’s time with her father take place at a contact centre. This position needs to be assessed in the context where the mother maintained her proposal that the father be liable for all costs associated with X’s supervised time with him. and where she had not made any inquiries to determine the cost of having X’s proposed supervised time with the father occur away from a contact centre.
Whilst other may disagree, I was left with the distinct impression that the mother’s suggestion that X’s time with the father could occur away from a contact centre was illusory – neither of these parents are likely, in my view, to be able to afford the likely costs of off-site supervision.
The mother also proposed that an order be made restraining the paternal grandfather (who is not a party to these proceedings) from being in X’s presence; she proposed that an order be made restraining both parents from recording each other (by video or audio means) whilst speaking with each other concerning “these proceedings”.
On the final day of the trial, the mother sought, unsuccessfully, to amend the orders she sought. The proposed amendment was, in essence, that orders should be made for X to move immediately to live with a maternal aunt in Town H; for there to be a six-month moratorium over X's time with the mother (during which the mother would engage in therapeutic counselling) and that X spend time with the father between 9.00 am and 6.00 pm on the Saturday and Sunday of each alternate weekend, with such time to occur in Suburb E and to be supervised by the maternal aunt. The maternal aunt was not a witness in the mother’s case.
Whilst the mother’s application for leave to amend her response was refused for the reasons expressed at the time - which included that the orders proposed to be sought necessitated the joinder of the maternal aunt (from whom no evidence had been adduced in the mother's case and who, at that point in time, had played no part at all in the processes associated with these proceedings, including the preparation of the Family Report) - all Counsel agreed that the court could have regard to the fact that the mother had proposed, in open court, that such orders were orders which were in X’s best interests. The Independent Children's Lawyer
Counsel for the Independent Children's Lawyer submitted that the court would be persuaded that X's best interests would be met by orders which would see her live with the father and accord him sole parental responsibility for the major long-term issues relating to her. The Independent Children's Lawyer also submitted that it was in X’s best interests for the court to make an order that she have no time and no communication with the mother. Some general comments about these Reasons, including the Schedule to the same
So that there is no misunderstanding about how the information recounted chronologically in the Schedule (summarised from aspects of the evidence before the Court) which accompanies and forms part of these Reasons has been used in the determination of the parenting orders now in X’s best interests, I record that: (a) I accept that the information recounted therein was provided by whomever is said to have provided it and, unless I indicate otherwise, that events happened in the way recounted by the author of the notes; and (b) where indicated in the Schedule, I accept the opinions proffered by those who have proffered them; and (c) the Schedule does not contain a summary of all of the evidence – whilst it outlines matters I consider to be particularly relevant to the determination of those parenting orders now in X’s best interests, the absence of any particular evidence from the chronological recitation of events should not be taken to indicate that the same has not also been the subject of consideration in the discharge of the obligation to make parenting orders which are now in her best interests and proper - especially given the relatively limited time between the conclusion of the trial and the delivery of these Reasons; and (d) because of my assessment of the mother’s veracity, perceptions and her capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of the information conveyed by her as recounted by the recipients of the same: that is, whilst I accept that the mother said what she is recorded as having said, I do not necessarily accept that what was said (and therefore reported by the recipient of the information) was a truthful or an accurate representation of what had, in fact, happened – although it may, on occasion, have accurately represented the mother’s perception of what was reported to have happened; and (e) unless otherwise indicated, I have accepted the account of events recorded in the various source documents referenced therein in preference to any contrary account provided by the mother. Some general comments about the evidence given by, and the credit of, the witnesses
I generally accept the evidence given by the father; he was unshaken during his cross- examination and he appeared to me to be truthful. Save for the paternal grandfather’s denials about swearing, I otherwise generally accept his evidence. I accept the evidence given by the paternal aunt without reservation.
The following is but one example of the evidence which has persuaded me that I need to approach the mother’s evidence with significant caution. She said that when, during a changeover with him on 9 October 2021, she asked the paternal grandfather why he sat in the back seat of the car when the father was driving him and X away from the changeover location, he said words to the effect of: “what we do in our car is our business and what you do in your car is your fucking business”. However, the recording of the exchange that day makes it clear that, whilst the paternal grandfather told the mother that he did not care what X did in her car, the only person who swore was the mother when she told him that X was not his “fucking child”.
Further, whilst the mother told the paternal grandfather during that changeover that he had just sworn, that simply did not happen. That the mother told the paternal grandfather he had done something which he clearly had not done (at a time when she did not know that she was the subject of his recording of her) certainly suggests that she is more than capable of making an assertion, including forcefully and with conviction, that an event or action happened when it did not. A further example of this conduct can, I consider, be found when the mother asserted to the Contact Centre, after a visit between the father and X, that X had made a disclosure to a worker – that is, she contacted the service to assert that this had in fact happened when I accept that it had not.
When cross-examined, the mother denied that she has not wanted the father to be a co-parent of X. However, given: (a) the comments she has made about the father and about her attitude to X spending time with him to various people over time, including before the date on which she alleges X made her first disclosure of sexual abuse by the father and the paternal grandfather – as set out in the Schedule; and (b) the unambiguous comments she made to Ms C and Ms F about the father and X spending time with him, I simply do not accept such denial; in fact, it and the mother’s evidence about the support she asserted she had demonstrated for X to spend time with the father and have a relationship with him are, in my view, overwhelmingly contradicted by her repeated comments to the effect that she will never let the father see X.
Given these examples of the issues involved in attempting to assess the mother’s evidence, I have also concluded that, where the contents of documents maintained by services or organisations of whatever description conflict with the mother’s evidence, I prefer the content of the documents.
When called, the maternal grandmother made a number of alterations to the evidence she had previously given in her affidavit. I accept the evidence she gave to explain her earlier evidence and to put it in context. Her affidavit contained no evidence about the video call which the mother asserted had occurred in late 2021, during which X allegedly made the first disclosure that the father had touched her inappropriately. In fact, the maternal grandmother’s initial response when asked about video call certainly suggested to me that it was highly likely she had no independent recollection of the same. Whilst, when cross-examined about the mother’s assertions about what happened during the asserted communication on that day, the maternal grandmother supported the mother’s version of events, I consider it much more likely than not that she simply adopted this account once she had been told it was what her daughter had said happened. Given that, as already noted, the maternal grandmother’s affidavit contained no evidence at all about the video call during which, on the mother’s evidence, X had disclosed for the very first time that the father and paternal grandfather had touched her vagina, I think it much more likely than not that the maternal grandmother did not have any independent recall at all of the conversations with X that happened that day. Given the alleged content of the conversation, it seems unlikely that the maternal grandmother would have forgotten what had been said if the events had in fact happened as the mother said they had. The various experts
Unless otherwise expressed, I accept the evidence given by MS Z (who authored the Child Impact Report), Ms C (who authored the Family Report) and Ms F, a forensic psychologist who assessed the mother. Of these, only Ms C was required for cross-examination. To the extent that the evidence given by any of them is contradicted by evidence given by the mother, I prefer the evidence given by the experts. APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[6] in relation to X, I may, subject to s 61DA[7] and s 65DAB[8] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[9] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[10] In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[11] The matters to which regard must be had in determining those parenting orders which are in her best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any discussion, particularly where the evidence leads inexorably to a particular conclusion.[12] [6] Family Law Act 1975 (Cth) s 64B. [7] Presumption of equal shared parental responsibility. [8] Parenting plans. [9] Family Law Act 1975 (Cth) s 65D. [10] Family Law Act 1975 (Cth) s 60B. [11] Family Law Act 1975 (Cth) s 60CA and s 65AA. [12] See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Whilst the issue of the benefit to X of maintaining a meaningful relationship with each of her parents is the primary consideration which is first listed in s 60CC(2) of the Act, it seems to me that this consideration is best addressed after determining whether, because of their conduct, either parent poses an unacceptable risk of harm to her. It also seems to me, because the Act mandates that protecting children from harm is an imperative,[13] that it makes sense to reach conclusions about whether X would be at an unacceptable risk of harm if she spent time with a parent before considering whether she will benefit from the opportunity to maintain a meaningful relationship with both of her parents and assessing the other relevant considerations. [13] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[14] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[15] Even in undertaking such assessment, this Court is not compelled to make a determination about whether the father and/or the paternal grandfather sexually abused X; however, orders which would place X at an unacceptable risk of harm clearly could not be seen as being in her best interests. [14] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it. [15] Family Law Act 1975 (Cth) s 60CC(2)(b).
The task which I am required to undertake in these proceedings differs from that which a judge hearing a criminal proceeding is required to undertake; in determining whether a person poses an unacceptable risk to a child, the Court looks through a lens that is very different to that used when, in discharging obligations in criminal law, a jury determines whether the Crown has, by the evidence led, discharged the onus of satisfying them beyond reasonable doubt of the requisite elements of an offence. Rather, in exercising jurisdiction in parenting proceedings under the Act, I must consider whether all of the relevant evidence persuades of, or contributes to the persuasion of, the conclusion that X would be at an unacceptable risk of suffering harm if required in the future to spend unsupervised time with a parent.[16] [16] M v M (1988) 166 CLR 69 and the numerous authorities which have been decided after it was delivered, including Isles & Nelissen (2022) FLC 94-092.
In determining whether X will be at an unacceptable risk of harm if her time with a parent is unsupervised, the Court undertakes a predictive exercise that requires the determination of whether, based on the evidence before it, it considers there to be a risk to her in the future – the predictive exercise involves an assessment of the magnitude of the risk and the harm that would be caused to X if the risk was manifest and the consideration of whether matters can be put in place to adequately mitigate that risk becoming manifest. It is unnecessary for a risk to be assessed as being “probable” before it is unacceptable; depending on the magnitude of the risk and the harm which X would suffer if it eventuated, the possibility of its occurrence may suffice for it to be regarded as “unacceptable”. A conclusion that an unacceptable risk of harm exists may be based on matters such as plausible but unproven allegations of abuse made by a child against the parent alleged to pose the unacceptable risk of harm. Whilst conjecture about the future is based on historical facts and circumstances, only the relevant historical facts need to be proven on the balance of probabilities.[17] An accumulation or coalescence of factors, not individually proven on the balance of probabilities, can still be sufficient to demonstrate the existence of an unacceptable risk of harm to X.[18] [17] Isles & Nelissen (supra). [18] Eastley & Eastely (2022) FLC 94-094 and the inferential reference at [31] to Johnson & Page (2007) FLC 93-344 at [68]–[71]. The father: the relevant considerations Will X be at an unacceptable risk[19] of being sexually abused by her father and/or the paternal grandfather if her time with them is unsupervised? [19] See: M v M (1988) 166 CLR 69; N and S and the Separate Representative (1996) FLC 92-655; A v A (1998) FLC 92-800; Bant & Clayton (2019) FLC 93-924; Isles & Nelissen (supra).
During the final submissions, Counsel for the mother submitted that the mother’s position was that the evidence, including that given by the mother, was not sufficient for the court to find that there was veracity in the allegations X had been sexually abused by the father or the paternal grandfather.
Whilst such concession may, in another case, have meant that it was unnecessary to consider further the assertions that X has been sexually abused by both the father and the paternal grandfather, I consider that X’s best interests will be better met by recording findings about this issue.
I accept the father’s evidence that, he did not change X’s pull-ups or take her to the toilet at any time during the 13 visits X had with him between 30 June 2021 and 9 October 2021. I accept his evidence that he did not change her clothes and that he has never done so; I also accept his evidence to the effect that the only time he could recall touching X in the "bottom area" was when, having run around in the front yard of the home he shares with the paternal grandfather, she fell over – whilst uninjured, she had grass all down her back (from her shoulders to the backs of her legs) and he wiped this off using his hand: an action which saw his hand come into contact with her bottom/nappy area, on the outside of her clothing. I also accept the father’s evidence that X had not appeared to have been bothered by his actions – which were, in my view, entirely innocuous and completely consistent with day-to-day parenting of a child of X’s age.
I accept the father’s denials of sexually abusing his daughter. I am not persuaded that he touched X’s “vagina” (which I have taken to be a reference to her vulva and genitals generally) or that he inserted his fingers into her vagina or that he tried to have her touch his genitals or that he acted toward X in any way that was sexual or abusive. Similarly, I am not persuaded that the paternal grandfather sexually abused X or that there was anything sinister in him sitting with X in the back of the car to keep her company and, in essence, entertained whilst the father drove them back to their home – a journey of about 20 minutes’ duration.
Given my conclusion that the mother has previously simply invented aspects of conversations that she has asserted have occurred and that I consider there to have been a degree of misstatement and/or exaggeration in her recounting of events (see, for example, the difference between the mother’s recounting of what happened at the Contact Centre and the Contact Centre notes), I retain significant reservations about whether the conversation the mother recounted as having occurred in late 2021 in fact happened in the way that she said it did. I also note the significant differences in the account the mother provided in her affidavit about the events of October 2021 and account she provided to the Department when she contacted the Helpline in late 20121 and to the police when she spoke with them a short time later, as set out in the Schedule.
However, I hold no reservations at all about my conclusion that, in the mother’s care, X has been consistently and, I suspect, almost routinely exposed to the mother’s view that she has been sexually abused by the father and the paternal grandfather and that she will be harmed or suffer abuse if she spends any time with them at all. I think it much more likely than not that the mother has not taken any measures to shield X from exposure to her expression of her views that, amongst other things, the father is dirty and a paedophile and the paternal grandfather is a paedophile.
In addition, the evidence overwhelmingly persuades that X has been exposed to her mother’s way of perceiving the actions of others – by way of example, the mother’s evidence and her recounting to others (including Ms F) was, in essence, that there was something inherently unusual about the paternal grandfather sitting in the back seat with X whilst the father drove them home. In fact, she told Ms F that she had thought it suspicious that he did so, commenting “Who would do that?”
I accept the evidence given by both the father and the paternal grandfather about why the paternal grandfather sat with X in the back seat of the car while the father drove them home; I consider the paternal grandfather’s actions in this respect to be nothing more than that of a person concerned to try to ensure that X enjoyed the car trip home. That the mother regarded the paternal grandfather’s sitting with X in the back seat as conduct which gave rise to suspicion and, clearly, as indicative of something sinister, says much more about her perceptions than it does about his conduct.
In addition, the mother also appeared to consider that there was something inherently suspicious and wrong with the father wanting to touch X when he spent time with her, in the mother’s presence, when she was much younger – although it seemed to me that his described actions amounted to nothing more than a parent delighting in the existence of their child and wanting to engage with that child and have her engage with him.
Whilst it is clear that X has, on occasion, made comments to persons other than the mother that the father has touched her “gina”, such comments need to be considered in the context in which they have been made. In this case, I am easily persuaded that it is much more likely than not that, since at least about late 2021, X has been exposed on a regular basis to her mother’s uncontained and unrestrained expression of her seemingly unwavering belief that both the father and the paternal grandfather have sexually abused her. Given this, it is hardly surprising that X has taken up such comments and repeated them – albeit, in my view, without any true appreciation of their meaning.
Regard need only be had to Ms C’s recounting of five year old X’s assertion to her that “[Mr Marriot]” and her grandfather are “paedophiles”. When asked what a “paedophile” is, X’s response – whilst a manifestation of admirable logic – that it is “[Mr Marriot] and grandpa” clearly demonstrates that she had no understanding at all about the meaning of the word she had spoken to Ms C.
However, that she used such a word at her age to refer to her father and paternal grandfather certainly persuades me that, before she spoke with Ms C on 16 February 2023, X had heard it used many times to refer to them. I simply do not accept the mother’s contention, in essence, that X may only have heard that term used very infrequently; I think it overwhelmingly improbable that X would have used that term as she did to Ms C if her exposure to it had been as limited as the mother suggested.
I also record that, having interviewed X on more than one occasion and having otherwise conducted whatever investigation flowed from such interviews (which included that X’s daycare reported that they had not seen her to behave in a “sexualised manner”), the police concluded that there was no plausible evidence to support a conclusion that X has been the victim of sexual abuse perpetrated by either the father or the paternal grandfather. As already noted, I join in that conclusion.
I also accept Ms F unchallenged opinion that the allegations that the father had sexually abused X appeared to have arisen once he had the opportunity to spend time with her beyond the conditions of the mother’s control and that the allegations then extended to the paternal grandfather, who supervised the time between X and her father.[20] [20] Forensic Psychologist Report, paragraph 136.
Having regard to the evidence, I am persuaded that X would not be at an unacceptable risk of harm if her time in the future with her father and/or her paternal grandfather was unsupervised. I reject the mother’s contention that X will be “raped” by either the father or the paternal grandfather if she spends unsupervised time with them in the future. The other considerations
I accept Ms C’s description of the father’s engagement with her when interviewed via MS Teams in early 2023 and when observed with X a short time later I accept he was engaging, answered the questions asked of him and took time to reflect and think about X’s needs; I also accept he spoke confidently and enthusiastically about being a father.[21] I accept that the father has engaged with a psychologist whom he has previously seen regularly and that he has completed programs recommended by the Court, including the Men’s Behaviour Change program at G Family Services and Keeping Kids in Mind.[22] [21] Family Report, paragraph 78. [22] Family Report, paragraph 53.
I accept that the paternal grandfather provides the father with the assistance he outlined in his evidence; I am not persuaded that the father’s hearing loss[23] (or any other issue) will prevent him from attending to X’s needs, especially given that he will continue to have the paternal grandfather’s support on a daily basis and whatever support may be necessary from his sister, X’s maternal aunt. I also accept Ms C’s assessment of the father as independent in that he attends to his own finances, shopping and pays his own bills albeit that, if necessary, he calls upon the paternal grandfather to provide him with some assistance. [23] Diagnosed as having a loss in both ears.
I reject the mother’s contention that the fact that the paternal grandfather receives a carer’s pension for the assistance he provides to the father means or establishes that the father is incapable of caring for X. I accept the various observations made of the father’s interactions with X as set out in the Schedule). I also accept Ms F’s unchallenged assertions to the effect that, whilst the mother described the father as being disengaged in his approach to parenting X, his ability to interact and care for her and generally discharge the responsibilities of being one of her parents has been significantly limited by the mother’s conduct.
Whilst the mother clearly considers that the father is incapable of meeting X’s needs and/or caring for her on a day-to-day basis, I am persuaded by the observations of his conduct toward X and their interactions (albeit very, very limited and, most recently, under supervision) that he has the capacity to meet X’s needs. I accept, generally, the submissions to the effect that what the father has lacked to date is the opportunity to demonstrate that capacity.
I accept that, after the allegations were made that he had sexually abused X, the paternal grandfather sought the assistance and support of a psychologist. I accept Ms C’s account that this appeared to have been an appropriate engagement. There is, in my view, nothing to suggest other than that, if called upon, the paternal grandfather and X’s paternal aunt would do all that they could to assist the father to care for X and to support her if orders were made for her to move to live with the father. The mother: the relevant considerations Will X be at an unacceptable risk[24] of being suffering psychological harm if she continues to live with her mother or spends unsupervised time with her? [24] See: M v M (1988) 166 CLR 69; N and S and the Separate Representative (1996) FLC 92-655; A v A (1998) FLC 92-800; Bant & Clayton (2019) FLC 93-924.
The following evidence of the mother’s approach to the father’s interactions with X and the suspicious prism through which she appears to have viewed them - even before the reported events of late 2021 – persuades that it is much more likely than not that the mother was predisposed to assess both the father and the paternal grandfather as posing a risk to X: (a) in early 2020 , she told her support worker that: (i) she did not like it when the father wanted constantly to hold or touch X as it made her feel uncomfortable; and (ii) she did not want him to ever have X on his own; (b) in mid-2020 she told her support worker about how disgusting the father was and how he was sexually inappropriate with X whenever she was allowed to spend time with her and spoke about him touching her on the bum or trying to pick her up all the time; and (c) in late 2020 she told the paternal grandfather at a changeover that the “touchy-feelyness” had to stop and that X had told her that the father sat next to her with his arm around her when they were watching cartoons.
Nothing in the mother’s evidence at the trial persuaded of any change to this predisposition.
I also accept that, when she spoke with Ms C on 19 January 2023, the mother was unable to consider that the allegation that the father and/or paternal grandfather had inappropriately touched X might have been the consequence of a misunderstanding or that it did not happen and that she indicated that Ms C was another person that did not believe her daughter.[25] I also accept that the mother commented that, if X spent unsupervised time with the father, she would be “raped”; she expressed a similar view to Ms F when assessed by her on 7 August 2023.[26] [25] Family Report, paragraph 104. [26] Forensic Psychologist Report, paragraph 64.
Despite the appropriate concession made by Counsel who appeared for her that the evidence was not sufficient for the court to find that there was veracity in the allegations X had been sexually abused by the father or the paternal grandfather, there was nothing in the mother’s evidence to suggest that her views about this issue have in fact changed significantly; further, nothing in the mother’s evidence suggested that it was likely that her views about this issue and about the father’s role in X’s life differed from those she has previously expressed.
Given the mother’s view that X has been sexually abused by both the father and the paternal grandfather, her comments about that issue to others (including workers at the contact centre, Ms C and Ms F), my assessment of her inability or unwillingness in the past to shield X from the expression of those views and my assessment that it is highly unlikely that, without therapeutic intervention, the mother will be able in the future to refrain from expressing her view to X or in her presence, I think it much more likely than not that, if X continues to spend unsupervised time with her mother, she will continue to be exposed to the view that she is a victim of familial sexual abuse. Such a consequence cannot in my view be regarded as something which is in X's best interests; rather, I consider it to be a risk from which X must be protected because of the future consequences for her of growing up thinking, erroneously, that she has been sexually abused by both her father and paternal grandfather.
Given the mother's assertion that X will be “raped” if permitted to spend unsupervised time with the father and paternal grandfather and my assessment of her inability or unwillingness to shield X from her views about the father and the paternal grandfather, I think there is a very significant risk that, if she continues to live with her mother and orders are made for her to spend unsupervised time with the father (and paternal grandfather), X will be (if she has not already been) exposed to the mother’s view that those persons will rape her. Again, this is a risk from which X must be protected.
Given the mother’s reported comments to X during their attendances at the Contact Centre (which I regard as attempts to undermine X’s confidence in the service) and Ms F’ assessment of the potential impact on X if what I accept was the mother’s decision to insist that X wear pull-ups during the visits she had with the father and the paternal grandfather between late June and mid-October 2021 (namely, that it may have caused X anxiety and was a pre-emptive strategy that suggested the mother was hypervigilant to X being sexually abused), there is a very significant risk that, if X remains living with her mother and orders are made for her to spend unsupervised time with the father and the paternal grandfather, she will continue to be exposed to conduct by the mother which actively seeks to undermine and erode her sense of safety and which seeks to have her believe and feel that she is at risk. Such a consequence cannot in my view be regarded as something which is in X's best interests and is a risk from which she must be protected
Consequently, I consider that X will be at an unacceptable risk of suffering significant psychological harm if she continues to live with the mother or spend unsupervised time with her. The other considerations
I accept Ms C’s account[27], based on her interview of the mother via MS Teams in early 2023 and the observations with X conducted a short time later, that the mother was abrupt; adamant in her thoughts; unwilling to consider alternate options when asked to consider different scenarios and forceful at times. I accept she raised her voice on the phone and yelled over the top of what Ms C was trying to say on occasion. I also accept that she subsequently called Ms C several times after the observation to discuss the same. [27] Exhibit 4: Family Report dated 7 March 2023.
The mother was interviewed by Ms F, a forensic psychologist, in mid-2023.[28] Whilst the mother’s evidence included that she had laughed when she read Ms F’s report, Ms F was not required for cross-examination. [28] Exhibit 5: Forensic Psychologist Report dated 10 August 2023.
I accept Ms F’s assessment that it appeared from the mother’s dialogue that, when the father tried to assert his paternal rights to have a close relationship with X, she (the mother) interpreted this as him threatening or trying to control her or threatening to take X from her. Such assessment was buttressed by aspects of the mother’s evidence which included that she regarded the father’s attempt to have X spend time with him (including on each alternate weekend) as being him attempting to “take” X away from her.
I accept Ms F’s recounting that the mother referred to her firmly fixed belief that the father had sexually abused X.[29] I also accept that the mother made the comments to Ms F that Ms F recounted in her report and that these included that she called the father “[Mr Marriot]” and did not talk about him and that whilst she did not say that she hated him, X might have overheard her saying that she did not like him. As already noted, the evidence persuades that X has been, in my view, consistently and repeatedly exposed to her mother’s negative views of both the father and the paternal grandfather. [29] Forensic Psychologist Report, paragraph 135.
I accept the opinions expressed by Ms F, for the reasons she expressed, to the effect that: (a) the mother is unlikely to be an individual who can compromise with others or place trust in them – she impressed as interpersonally sensitive and quick to take offence; and (b) suggestions or alternative perspectives may well be viewed by the mother as being insults to her beliefs or interpersonal rejection;[30] and [30] Exhibit 5, Forensic Psychologist Report, paragraph 132. (c) the reports of Ms C’s observations between X and father suggested that the mother had engaged in fear-priming with X prior to X meeting with her father; and (d) the contact centre records indicated that the mother had not provided X with any confidence to participate in contact visits with her father and that, at times, she appeared to undermine X’s confidence; and (e) due to the mother’s psychological presentation and her expressed views, it was unlikely there would be any circumstances under which she could support X to comfortably and confidently form and maintain a relationship with the father;[31] and (f) X’s comments to police that “[Mr Marriot] trying to take me. He is trying to kill my Mum. Mummy is crying. We need him in jail and in trouble so we can laugh at him”. “My Mum told me he will come to school and take me” were indicative of a child under intense emotional strain – given my conclusion that the father has not abused X, I accept that the mother is the most likely cause of this strain on X;[32] and (g) given that X had referred to her mother becoming angry if she spent time with the father (and a similar theme being evident in the Contact Centre notes) and that she had evidenced resistance in acknowledging her paternal relationship to the father, there was a risk that, if X and the father spent time together in the future, the mother might say or do things to undermine X’s confidence in spending time with him; and (h) X would be placed under serious emotional strain in any co-parenting arrangement which involved the mother facilitating X’s time with the father or her communicating with him;[33] and (i) given the absence of any indications of reality-altering mental illness, the mother had been motivated to fracture the relationship between X and her father due to her need to control the emotional and exclusive bond she maintains with X – a position supported by the anxious attachment she described with X; and (j) the mother’s narrative of how she failed to provide clear parental expectations for behaviour to X and the anxious attachment held by the mother for X suggested that there were blurred boundaries in the parent/child relationship - there was an impression that the mother did not deal well emotionally with opposition shown by X and her reported acceding to X’s preferences in order to maintain her emotional connection to X was considered to be a further indication that she maintained an anxious connection to X, which at times overrode good parental judgement; and (k) if the mother had been the victim of childhood sexual assault, the legacy of such assault may be a complex array of emotional dysfunction which heightens the mother’s threat perception about X’s safety, contributes to her anxious attachment to X and explains her difficult relationships with others and her polarised thinking – it would also strengthen the possibility that she suffers from a Personality Disorder;[34] and (l) due to the mother’s distrust of authority, her difficulties with trusting relationships and her rigid cognitive style (as evidenced by her fixed beliefs) she is unlikely to willingly engage in therapy and is unlikely to remain unengaged - treatment would be expected to extend beyond 12 months and the likelihood of treatment reversal was considered to be high.[35] [31] Forensic Psychologist Report, paragraph 162. [32] Forensic Psychologist Report, paragraph 142. [33] Forensic Psychologist Report, paragraph 160. [34] Forensic Psychologist Report, paragraph 126. [35] Forensic Psychologist Report, paragraph 154.
I accept that the mother did not tell Ms C about her mental health history. I also accept that she advised that she had weaned herself off the anxiety medication prescribed to her because she did not believe she needed it; I also accept she told Ms C that she did not believe she needs any further contact from a psychologist. Nothing in her evidence at the trial suggested that her view about the necessity for psychological engagement had really changed.
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| 8 August 2022 | Contact Centre notes I accept, as set out in the notes, that when the mother called the service she expressed concern about the supervised contact, including that she felt intimidated by having two workers present; she said that the staff had been asking X to go see the father. I accept that when the worker told the mother that staff provide encouragement for children to see the other parent (although the mothers are encouraged to provide encouragement and positive reinforcement), the mother said that they would not be telling X to see the father but would allow her to make the decision. I accept the mother asked the worker what the next step was as X was becoming distressed, not sleeping and had been wetting the bed before visits. I accept the mother said that they felt staff were pushing X to go through and X’s concerns were not being heard because of a lack of understanding on the part of the staff; she said they had heard a worker telling X to see the father; she also said that they did not want to be “crucified” for X’s refusals as she understood there were orders for X to spend time with the father at the service. I accept that, when questioned about the process, the worker said that continued child refusals may result in suspension to allow clients to readdress the orders and to seek legal advice. I accept the mother asked if the case workers had been writing how they felt about her in the notes and that she was told that case notes contain only observations and that she was welcome to subpoena the file for further information. | Exhibit 1, page 119 |
| 10 August 2022 | Contact Centre notes I accept, as set out in the notes, that the mother called the service to discuss her concerns about the service’s case noting and mandatory reporting. I accept she said she had been made aware that the service was not documenting the case notes correctly and that she had been advised of this by her solicitor – she also said she continued to feel intimidated by two staff welcoming her and X at the arrival. I accept the mother said that the workers were asking her to be supportive/encouraging of X proceeding through to the father and that both she and her brother had been telling X: “Go play with [Mr Marriot]…You will not be in trouble” – she said she could not do any more than what she was already doing to support X to see the father. I accept that the mother asked the worker if the service had completed a helpline report (as they are mandatory reports) and that she said X had, on three occasions, verbalized sexual abuse to a particular worker; I accept the mother was told that all staff at the service are mandatory reports and that a report had been made, although no details of the same could be provided. I accept the mother said that she was concerned that the worker supervising the session did not understand X and that this may have prohibited the service from completing mandatory reporting. I accept the mother was told that the worker had completed case notes which appeared accurate and that he had complied with his duties as a mandatory reporter. I accept that the mother became increasingly distressed while on the phone – she said X continued to have nightmares now that she was attending supervised time and that, when discussing her nightmares, the child said that she was “terrified that [Mr Marriot] will come and get her”. I accept the mother said that X had said she was worried the father would “bury us underground”. I accept that, when asked if she had any understanding about how X had come to say such things, the mother said that, while working with the FF Organisation, a safety plan was being organised, because X had previously made such statements. I accept the mother said that the father continued to contact her via text, threatening her after X declines supervised time with him: however, when the worker suggested that she provide this information to the police, the mother said that they were not helpful in her situation; she also said she had given this information to her solicitor. I accept the worker told the mother that, if the father continued to send threatening text messages, she should consider providing that information to police for her safety. I accept that, when the worker asked her if X was receiving any mental health support, the mother said that services continued to decline to see X due to the pending court matter. | Exhibit 1, page 120 |
| 10 August 2022 | Contact Centre notes I accept, as set out in the notes, that when the Independent Children's Lawyer called the service, there were discussions about the service’s concerns. The Independent Children’s Lawyer was advised about the service’s decision to suspend supervised time for two months; the service was to complete referral to Family Connect and Support for the mother. I accept that the service made that referral that day. | Exhibit 1, page 122 |
| 11 August 2022 | I accept that the mother’s evidence included that supervised visits at the Contact Centre were suspended because X did not want to attend. | Mother’s affidavit filed 23 November 2023, paragraph 117 |
| 11 August 2022 | Contact Centre notes I accept, as set out in the notes, that the service wrote to the mother to confirm that the service had been suspended due to continued child refusals. I also accept that the service advised that, to continue using it, it recommended that the mother adhere to the following recommendations/s: 1. commence a Post Separation course: the service offered “Keeping Kids In Mind” (KKIM); 2. seek support for her ability to encourage and facilitate the commencement of supervised contact between X and her father and engage with a psychologist/counsellor during the suspension period. 3. continue to engage with her solicitor. I accept the service advised that it would suspend its services for eight weeks (two months) to enable the concerns it had raised to be addressed and that the file would be automatically closed after this period if the same were not addressed. | Exhibit 1, page 127 |
| 12 August 2022 | I accept that the Contact Centre notified the father that it was suspending its services for eight weeks pending his completion of the Keeping Kids in Mind course. | Father’s affidavit sealed 13 October 2023, paragraph 260 |
| 12 August 2022 | Contact Centre notes I accept, as set out in the notes, that when the service contacted her to advise that a decision had been made to suspend its services for eight weeks to allow her to complete the requirements outlined above, the mother indicated that she believed the father may become threatening in his communications with her due to the suspension. I accept that when the worker advised her to immediately seek support from police if this occurred, the mother said this was already her plan. | Exhibit 1, page 122 |
| 12 August 2022 | Contact Centre notes I accept, as set out in the notes, that when the service contacted him to advise that a decision had been made to suspend its services for eight weeks to allow him to complete the requirements of the suspension, the father advised that he had already completed the KKIM course and would send through his certificate. | Exhibit 1, page 123 |
| 12 August 2022 | Contact Centre notes I accept, as set out in the records, that the service emailed the mother and, amongst other things, provided the following information to the mother about the Keeping Kids in Mind course: Keeping Kids in Mind is a group program to help support parents through post separation and ongoing conflict. It is a difficult time for all involved, especially when navigating feelings of loss and grief and the practicalities of parenting through separation. The program supports parents to understand the impact ongoing conflict may have on the child both in the short and long term. In a supportive and safe environment, you will explore separation from your child's perspective and learn how to support them with both the emotional and practical challenges of parenting after separation. Program is 5 x 2 ½ hour sessions, with face to face and online options available; for more information view the website here. I accept the service noted that the file had been suspended until late 2022. | Exhibit 1, page 123 |
| 12 August 2022 | Contact Centre notes I accept the father emailed the service the certificate he had to confirm his completion of the Keeping Kids in Mind course. | Exhibit 1, page 124 |
| 12 August 2022 | Contact Centre notes I accept, as set out in the notes, that the mother contacted the service to ask whether the information provided meant that X’s visits with the father would recommence on 9 October 2022 and whether it would still occur on Sundays. | Exhibit 1, page 125 |
| 12 August 2022 | Contact Centre notes I accept, as set out in the notes, that the service advised the mother that the same scheduling for X’s visits with the father would remain in place such that the next potential supervised visit would happen on 16 October 2022. | Exhibit 1, page 125 |
| 3 October 2022 | Contact Centre notes I accept, as set out in the notes, that the father made multiple calls to the service about the recommencement of X’s supervised time with him and that he asked that their time resume. | Exhibit 1, page 134 |
| 3 October 2022 | I accept that the Contact Centre contacted the father to ask whether, given that the eight-week suspension period was nearly over, he wanted to resume supervised time. | Father’s affidavit sealed 13 October 2023, paragraph 262 |
| 7 October 2022 | I accept the Contact Centre contacted the father to advise that, whilst they were waiting for the mother to contact them, visits with X should recommence on 16 October 2022. | Father’s affidavit sealed 13 October 2023, paragraph 263 |
| 7 October 2022 | Contact Centre notes I accept that the father emailed the Contact Centre to advise that he would like to recommence the visits with X as soon as possible. | Exhibit 1, page 134 |
| 7 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the father called the service, he was advised that it was aware he was ready to recommence using its services; I accept he was told that the Contact Centre would reach out to the mother for her update. I also accept the father said that he believed the mother was causing X to not want to see him. | Exhibit 1, page 134 |
| 7 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the service contacted the mother and advised that the family could recommence supervised time visits on 16 October 2022 if the mother was able to commit, she said that she would not be able to complete the parenting course the service had asked her to do because of the cost of the same and because X was in her care all of the time. I accept that when the worker informed, in essence, that the mother could discuss doing the course online and that there may be the possibility of having the fees waived, the mother said that she felt the course was unnecessary because she and the father had never been in a relationship; she said she would not do the course as it did not apply to her situation. I accept that the worker advised the mother that the course focused on all parents experiencing conflict. I accept that the mother discussed the previous sexual abuse allegations (which the services noted were “unsubstantiated”) and said that she would make a complaint if the service had not reported X’s comment about the same to the Department. I accept that the mother discussed X’s emotional state when told about potentially seeing the father (namely, bed wetting and emotional distress) and said that she did not experience this when there was no mention of the father. I accept the mother said they would not be telling X to see the father. Although they will tell her she is safe. I accept the worker advised that the service would support X seeing the father but no child would be forced to do so. The mother said she would follow up about the parenting courses and the requirements she had to address. I accept that when she was asked if she agreed to supervised tie between X and the father resuming, the mother said that they had no choice as it had been court-ordered. | Exhibit 1, page 134 |
| 11 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the service contacted the mother to follow her up about the recommendation she do a parenting course, the mother advised that she had not commenced the course and that she was unable to do so because of finances and time restraints due to X being in her care. I accept the worker advised that the mother could complete any post separation course (either through it or another service) and said that the family file would be closed due to the mother not meeting the recommendations: it was explained that the service was not denying a service but the mother would have to start a post-separation course before supervised time between X and the father could resume. | Exhibit 1, page 13 |
| 11 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the service contacted the mother to discuss the closure of the file, she was verbally distressed throughout the phone call: she said there were no courses suitable for her to attend; X was in her care and she was not prepared to leave her with anyone else so she could complete the course; she also raised continued concerns with the cost of courses. I accept the worker said that B Family Services and JJ Organisation would adjust the costs for any parent wishing to attend the course and that she could request brokerage from the FF Organisation. I accept that the mother said that the father had not parented X and therefore a post-separation course was not suitable – she continued to refer to the father as a “ a paedophile” and questioned how the service would feel if the court made a decision for X to spend time with the father; she discussed the potential for X to be raped. I accept the worker told the mother she was unsure how the service could be of any continuing assistance as the mother continued to have extreme worries and that the service provided a safe environment for supervised time to occur as outlined in court orders. I accept the mother became increasingly distressed – she said she had always done as the service had asked, was on time and continued to tell X to go with the ladies. I accept that the mother questioned how staff could then continue to ask X to enter a room with “a paedophile”. I accept that, when the worker asked the mother how she would like the service to proceed (as she had declined each suggestion that had been made), the mother said she was not declining to do the course, had never declined to do the course but there was no course that meets her needs. I accept the mother said the father was not a parent to X and never would be – she said she had never been in a relationship with him and, therefore, a post-separation course was not suitable. I accept the mother also said “Keeping Kids in Mind” is a stupid name for a course, as the service did not keep kids in mind. I accept the mother said she had told X that she would need to attend supervised time on Sunday and that X had already wet her pants twice; I accept the mother became increasingly upset and questioned how the service could ask her to do a parenting course as this was not going to change her mind and X would still continue to refuse to move through the service. When asked by the worker how she wanted the service to proceed, the mother said she was going to be blamed as the reason for the closure of the file; when she said she would continue to receive threats from the father and the worker told her that she needed to provide the same to police so that they could assist immediately, the mother said that the police do not assist her – she said the father had previously threatened to kill her but the police had not provided any intervention. I accept that when the worker told the mother that she was going to close the file, the mother reiterated that she would be blamed because the father continued to be able to complete all courses as he did not have children. When the worker reminded her that she was not prepared to complete a post-separation course, the mother said that she had not declined, but there was no course suitable for her needs. I accept the mother stated that X had refused to go through to see the father and this should have been enough – she said X declined to see the father because he had touched her and that the worker should have taken X aside and spoken to her, separate to her. I accept that when the worker advised the mother that the service would provide both parents with withdrawal letters which would say that the service had been withdrawn because the other failed to comply with the service’s recommendations), the mother said she would not give this to her solicitor because the reason for closure was not a true reflection of the circumstances. I accept that the worker told the mother that she could hear X in the background; when she spoke about X witnessing the mother in this destressed state, the mother said that X would know why she was upset and that she was going to keep X safe. I accept that the mother agreed to the worker’s suggestion that they end the call. I note that the service’s records recount that the outcome was that withdrawal letters would be provided to the parents. | Exhibit 1, page 135, 136 and 137 |
| 11 October 2022 | Contact Centre notes I accept, as set out in the notes, that the mother left a message with the service to advise, in essence, that she had spoken to the JJ Organisation and that someone would be calling her back with information about a course, although she was not sure if it was the course the service wanted her to do. | Exhibit 1, page 137, |
| 11 October 2022 | Contact Centre notes I accept that the Contact Centre notified both parents via email that it was withdrawing its services. | Exhibit 1, page 137 and 138 |
| 13 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the service returned the mother’s call, she advised that she wanted to make a complaint and asserted that: 1. workers in the Suburb E location had documented false information in case notes; 2. X had made two disclosures of sexual abuse to worker at that office: on the first occasion, the worker told the mother verbally about this; on the second occasion, whilst X was in another room, she and her brother heard X make a disclosure but, despite this, the worker continued to force the child into seeing the father and her brother was required to intervene; 3. the service workers 'force' children to see their father's: this happened with X and occurred with two younger teenagers whilst she was present; 4. the service workers are liars. I accept the mother said that her solicitor had told her that the services case notes included that she presented as a 'mess' and that she had a right to be upset with this description. She also said that her solicitor supported her concerns that the suggested parenting courses were not suitable for her to attend. I accept the mother also suggested that the supervising worker did not understand X when she spoke. I accept that, as the mother told the person with whom she was speaking that she was not taking the call "seriously", she was advised that she could complete her complaint in a number of ways. I accept that when the mother said she would prefer to speak directly to the manager, she was told that all the information would be provided to the manager, who would then contact her. | Exhibit 1, page 138 and 139 |
| 13 October 2023 | Contact Centre notes I accept, as set out in the notes, that when the service contacted the father, he asked for further detail about the recommendations that had been made – he was told that the service was unable to disclose the details of the recommendations and could only advise that the mother had not addressed these and that there had been child refusals. I accept that the father said, amongst other things, that he had done all that had been asked of him to gain a relationship with X. | Exhibit 1, page 139 and 140 |
| 20 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the service co-ordinator contacted the mother to discuss her complaint, the mother expressed her concerns about the program and the staff – she alleged staff failed to report what happened and said that what was included in their case notes was lies and misleading information. I accept that when the co-ordinator asked her if she was aware of any benefit the staff would receive for producing such false documentation, the mother said something to the effect of: "that's what I would like to know". I accept that the co-ordinator confirmed that staff would be spoken to, the mother said that she should also speak with her brother who was present for all but the first contact. I accept the mother also raised concerns that the staff had failed to report both disclosures made by X; she reiterated the concerns she had expressed earlier to the first worker to whom she made complaint on 13 October 2022. | Exhibit 1, page 141 |
| 21 October 2022 | Contact Centre notes I accept, as set out in the notes, that the service wrote to the mother about her complaint and, in essence, advised her that: 1. her frequent contact with the service staff to share her concerns has assisted in addressing the issues raised; 2. there were no findings to suggest that the case notes recorded were not the true and accurate account of each worker’s engagement with her; 3. insofar as her claim that staff omitted information from the case notes that should have been included was concerned, it was considered that all documentation and case notes were based on observable behaviours and interactions and included conversations and comments; 4. whilst she had asserted that the service should have reported both disclosures by X, the first disclosure had been reported (as per the service’s mandatory reporters' obligations) and the second disclosure (which consisted of similar language to the first disclosure such as "touching", "vagina", "bathroom/ shower" & "bed/ blanket”) had not been the subject of further report because it did not contain any new information and X was in her care; 5. the service had been unable to identify any motivation or benefit to staff for including misinformation or lying in the notes kept on the file and could not find any reason for them to falsity documents; 6. the service was satisfised that all staff acted in accordance with the service’s code of ethics and conduct. | Exhibit 1, page 144 and 145 |
| 24 October 2022 | Contact Centre notes I accept, as set out in the notes, that when the mother called the service to discuss the content of the official complaint response letter (summarised above), she said that she did not agree with the findings. She also said staff had lied throughout their documentations. I accept she said that her concerns were not that the disclosures were not reported to the Department but rather that they were not documented in the case notes; when she asserted that staff had commented about her mental health, the co-ordinator said that staff had not written any case notes referring to the mother's mental health. I accept the mother said that her solicitor had said otherwise. I accept that when the co-ordinator asked her if she had seen the case notes (as she was so adamant that information was missing and her mental health had been called into question), the mother said that her solicitor had told her about what was in the notes and had commented that her brother should have been spoken to by the co-ordinator during the course of the investigation of the complaint. I accept that during this conversation, the mother referred to the father as a “paedophile” and said she would never agree to him having unsupervised contact with X; she questioned how the service could allow a child to encounter their abuser. I accept that when the co-ordinator attempted to explain that supervised contact was highly dependent on the mother's encouragement of the child to participate in sessions, the mother said that X had been given the choice to attend; whilst she had told X she would be safe, she would not encourage her to spend time with the father. I accept that when the co-ordinator asked the mother what point she was trying to make (given that she had said that X would not be encouraged to spend time with the father and the service had been withdrawn), the mother said that the withdrawal letter had been written in a manner that appeared to blame her for the service ending. I accept the co-ordinator explained that the decision to close the file had been based on the mother's inability to comply with the request to attend a post-separation parenting course: to which the mother responded "it was only a recommendation. I accept that, when the co-ordinator also reminded the mother that the service had also written that there had been child refusals, the mother said that it did not matter anyway because she would still stand firm before the court on the matter of the father having contact with X. I accept that when the co-ordinator offered the mother access to the program at a later stage if the family required it, the mother declined the offer and added that staff were liars; she said she would not be returning to the program. I accept that when the mother also spoke of the services’ lack of support of her, she was reminded that the service had referred her to the family referral service but she had declined the support. I accept that the mother continued to say that no service wanted to support X with counselling due to either X's age or the fact that the family was engaged in court proceedings; she also said the service should have done more to accommodate her childcare needs when attempting to follow-up on the requirement that she attend a post-separation parenting course. I accept that when the mother also questioned the benefits of such a course in any event because she had never been in a relationship with the father and he had never been a parent, the co-ordinator attempted to explain the benefits to the mother. I accept the mother spoke of X's behavioural concerns and said that she had “flipped” furniture and that she planned to engage a paediatrician for appropriate support and assessment of X's behaviour. | Exhibit 1, page 142 |
| 19 January 2023 | Ms C interviews the parents and X for the Family Report Whilst I generally accept the contents of the report in its entirety, the following are of particular note: · the mother indicated she did not want the father to know her address or where X attended school or went to any activities as she believes he would try and take X: she appeared genuine in her convictions and to date had not advised the Court of X starting school and where she is attending – she said she would “pull her out of school if he [the father] knows and I’ll home school her.” · the father said the mother had threatened to “pack up and move to where her mother is in Orange and had said she was going to pack up and move to Queensland and there was nothing he could do about it · the mother spoke about the Court process and Court orders, she commented she would not adhere to any orders that provide for X to spend time with the father or the paternal grandfather as “they are paedophiles and they will never see her, I will protect her”. She reported several times during the assessment that she would never allow X to be alone with either her father or paternal grandfather as X was not safe; she repeated comments like: “what, so she has to go there to get raped, then someone will believe her, I believe her and will do anything to protect her.” · The mother said she would “go to gaol before letting them [the father and paternal grandfather see X”. · The father commented it was when he requested X’s birth certificate to obtain a Medicare card for X for when she was with him that the allegations of sexual assault were made. · the mother indicated she would like to relocate with X as she had concerns for her own and X’s safety: she nominated either City EE where her mother resided or in Queensland where her father resided. · the mother commented a number of times that it did not matter what the Court decided, X was sexually assaulted and neither the father nor the paternal grandfather would ever spend time with X again. · it was possible X had attuned to the mother’s behaviour and told her what she believed the mother wanted to hear. · the mother indicated she did not agree with the process of the Court and said: “who did the Court think it was telling my daughter she has to spend time with a paedophile”. · When asked how, if contact between X and the father occurred, she would like changeovers to happen, the mother said she would not be letting X spend time with anyone despite any Court orders as “they don’t know what they are doing, and do they want her to get raped then they do something about it”. · the mother Ms Rossum was unable to consider the allegations might be a misunderstanding or did not happen and indicated that the family report writer was another person who did not believe her daughter. | Family Report dated 7 March 2023 [28] [33] [34] [35] [84] [97] [98] [99] [100] [103] [104] |
| Early 2023 | NSW Communities and Justice – Triage I accept, as set out in the notes, that the caller reported the following information: X was physically assaulting the dog, hurting herself and threatening to hurt the mother and herself. The caller also reported that the mother had made threats to self-harm if X was removed from her care. I accept the caller advised that they were concerned the father would get access to X and alleged that the child had been sexually abused by him when she was three years of age. I accept the Department was told that X had attended a child expert report session with her father today; she later slept and awoke hysterical and crying and screaming and wanted to go to the toilet; whilst in the toilet she banged on the door and said she wanted her mother, and it took half an hour to calm her down. I accept the Department was told that, when X was asked about her nightmare, she said it was about Mr Marriot and he was touching her and looked scared: she was reassured that he would not be touching her. It was reported that, when she was told last week that there was going to be a meeting with Mr Marriot the following week, X “trashed” the house: she picked a child's chair up and threw it; she tried to hurt a puppy by putting her hands around its throat and she hit, kicked, and dragged the puppy around. I accept that the Department was also told that X “loses it” whenever Mr Marriot is mentioned: she has wet her bed and did not tell her mother she had done so. I accept that the Department was also told that when X saw a five year old friend naked, she said Mr Marriot had the same as him but with hair on it: this incident was said to have occurred the previous year but had not been reported to the Department. I accept that the Department was also told that X said last week: “I told him to stop” and “I told him No” – when asked who she was referring to, she said “[Mr Marriot]”; she also said he had tried to make her touch his private area: again, this had not been reported to the Department. I accept that the Department was also told that, before Christmas last year, when a person asked X to show her belly button and went to touch it, X said: “Don’t touch my vagina”. I accept the caller said that they did not think that the Detectives were taking this seriously; it was also reported that there was a history of domestic violence and the father had previously threatened to kill the mother and X. I accept the Department was told that the mother was isolated from her parents and that whilst her brother lived in the next local government area, he worked most days. I accept that the Department noted that the JCPRP substantiated the allegations in the first instance – before the police investigated – and that the father and paternal grandfather had been eliminated as suspects: there was no evidence to support any sexual abuse by them. | Exhibit 1, page 187, 188, 189, 190, 193, 194, 195 |
| 9 May 2023 | I accept, as the father contended, that despite the terms of the 22 April 2022 order requiring the mother to have X call him on her birthday, the mother did not arrange for this to occur. | Father’s affidavit sealed 13 October 2023, paragraphs 267-270 |
| 19 May 2023 | I accept that the mother’s evidence included that, when she took X to see a paediatrician (Dr KK (as required by orders made on 8 May 2023), her friend “[Ms NN]” accompanied them. I accept the mother said that X was worried the entire time that Mr Marriot was coming and she and Ms NN both assured her that it was only going to be the three of them. I accept the mother said that, whilst she was completing the necessary paperwork, she noticed Ms NN and X talking quietly with each other. She said that Ms NN told her later that day that X had made disclosures about the father sexually abusing her whilst she was completing the paperwork: the mother said she was upset at the disclosures made by X to Ms NN and mentioned this to her social worker, who made a report about it. | Mother’s affidavit filed 23 November 2023, paragraphs 90; 148-150 |
| Mid-2023 | NSW Communities and Justice Helpline Assessment/ DOCS Helpline I accept, as set out in the notes, that the Department recorded new information relating to the allegations of sexual assault. I accept that the Department was told that, in May, X told an unnamed person that Mr Marriot (her father) had weed on her and clear wee came out; the unnamed person was said to have said that X used a wrist motion with her hand and said that Mr Marriot did that on his penis and touched her vagina area. I accept the notifier expressed concern that, if the court rules that X had to spend time with Mr Marriot, more harm could be done – it was reported that this was already impacting her behaviours in the home and that she had recently started bed-wetting again and at school and that this happened as the court dates get closer. I accept that the Department’s notes include the assertion that X was not then at risk when in her mother’s care but, based on what X had said (or, more accurately, what X was said to have said), this would change if she was placed into the father’s care. I accept that the Department recorded a decision to screen the information provided in for “risk of significant psychological harm” as X had said that day that she could not go outside as she was scared because she might see Mr Marriot (the father); it was reported that this comment had been made during a conversation where X also mentioned Mr Marriot had threatened to bury her – whilst this asserted threat had previously been reported, the information about X being scared to see the father was new information. I accept the following comments are made in referring to the 21 March 2023 assessment: 1. it had included reference to ‘symptoms of psychological harm’ because of the behavioural symptoms X had been said to have displayed (eg hitting the dog; strangling the dog and sitting on it); and 2. whilst this behaviour had been the subject of previous reports, it appeared to be “a pattern of behaviour” that was escalating (as it was reported that X had threatened to kill the dog and the mother) and “given the previous reported history in relation to sexual abuse by the father and the recent Child Expert Report recommending that X live with her the father, it is reasonable to consider the father's sexually abusive behaviour to be the pattern of parent/carer behaviour that is escalating X's psychological harm symptoms”; and 3. the issue of “mental health” had been included as a parental risk factor because the mother had expressed suicidal ideation, which was tied into the current family court case where they have recommended that X live with her father – the mother had said that “she can't live knowing that X is there at her father's" and words to the effect of: "how would I ever be able to"; whilst the mother had not expressed having a plan, it was reasonable to consider it a risk, as it could impact her ability to manage X's current psychological and harming behaviours. I also accept that reference was made to a decision on 19 April 2022 to screen in the report then made for “Sexual act or exploitation” for X. I accept that, during this aspect of the notes, reference is made to X having disclosed to an unnamed person[55] that the father and paternal grandfather had not only touched her vagina but had stuck their fingers inside her vagina. It was also recorded that she had told an unnamed person that they had touched her underneath her clothing on her breast and vagina. The Department noted then that the information that the paternal grandfather had touched her on the breast and that the father and the PGF had touched her underneath her clothing was new; it had also been reported that, since the disclosure, X had shown indicators consistent with sexual abuse, such as bed wetting and "outbursts". | Exhibit 1, page 177, 178, 179, 180, 181, 182 |
| Mid-2023 | NSW Communities and Justice – Joint Response Unit Triage I accept, as set out in the documents, that the JRU accepted the referral of the report made on 30 May 2023. I accept the documents also record that X had made a disclosure to an unnamed person that she had told her father “no” because he tried to get her to touch his private parts. I accept that Unit noted that there had been numerous attempts to interview X in relation to concerns about sexual harm by the father (concerns which had not been substantiated) and that it was reluctant to keep interviewing X before clarifying the disclosure from her – consequently, the matter was referred to the Suburb LL CSC with the request that they speak with X away from her mother and, if sexual abuse is disclosed and confirmed, refer the matter back to the JRU. | Exhibit 1, pages 163, 167,168, 171, 172, 173 |
| Mid-2023 | NSW Communities and Justice – Joint Child Protection Response Program – Region OO I accept that, as discussed above, X was interviewed by Departmental officers at the school without notice to the mother. Whilst regard has been had to the entire transcript of the interview, I consider it particularly pertinent to record that, during the course of it, X said the following: 1. “I don’t have a dad. He’s in a dirty house, he touched my gina”; and 2. When asked how she knew her father touched her on her gina: “I remember in my head. It was in the bathroom. He peed on me in the bathroom, bedroom, everywhere in the house” and that it happened when she was two or three years of age; and 3. “It’s not a lie, I need more people to help. [Mr Marriot] is trying to take me. He is trying to kill my mum; He is writing messages; he wants to take me. Mummy is crying. She says [Mr Marriot] sending messages.” 4. When asked about the last time with her father/Mr Marriot: “He wants me to take my clothes off. No way I’m doing that. I shouldn’t go. I learnt to myself. I want everyone to save me. We need police, doctor, school to help me”; and 5. “We need him in jail and in trouble so we can laugh at him”; and 6. When asked if she wanted Mr Marriot to go to jail: “Yes, me, my mum and my family. We are not joining on [Mr Marriot’s] team. Nice family not dirty family. He and mummy watched on the phone that girl and boy are sad because they are going to their dad’s. I’m not going to my dad’s. I’m not on [Mr Marriot’s] team”; and 7. “I wish [Mr Marriot’s] gone. I just want to move away, far from [Mr Marriot’s] house. If I go to [Mr Marriot], he’ll make me go to a new school”; and 8. “I want more people to keep me safe. So I need someone to save me. I am still worried. I need someone at school”; and 9. When told by the interviewer that she was safe at school: “My mum told me he will come to school and take me. I have 20 cameras outside the house, I need more cameras in the house. I’m going to be safe with mummy. Hopefully he will not come to my house. I have cameras, police, doctors. [Mr Marriot] make me vomit. I’m frowning, I’m sad. He might come to my house. He will do something bad to me.” |
| 28 June 2023 | Contact Centre notes I accept, as set out in the notes, that the mother said that she would not pay for X to have to see “the paedophile” (the father). I also accept she said that X was now verbalizing what the father’s penis looks like. | Exhibit 2, page 15. |
| 1 July 2023 | Contact Centre notes I accept, as set out in the notes, that when the service contacted the mother, she advised that she wanted to make a complaint about her previous engagement with the service in 2022. I accept she said that when she last accessed the service, staff 'forced' X to go through to see the father and did not listen to her – even when she disclosed sexual abuse to staff, they still encouraged her to go through for a visit with the father. I accept that the mother also said she previously felt pushed into encouraging X to go through for a visit with the father and that she would be labelled by staff in case notes as a 'bad parent’ if she did not endorse the visit. I accept that when the mother was advised that the service did not force children to see parents when they make it clear they do not wish to do this, the mother said she felt that happened previously and she was reluctant to use the service again because she feared the same thing would happen. I accept that when the worker asked her what would happen if X was happy to go through for a visit with the father, the mother said that she would support that if that were the case. I accept the mother asked the worker what would happen if the father breached the service agreement as she suggested he had previously – she also said that, due to the sexual abuse allegations, the father should not bring gifts to 'bribe [X]' but he had previously told her that he had a gift for her at home. I accept the worker advised the mother that the service followed the “sexual abuse” agreement (as would have happened during the previous engagement) and that it stipulated that the father was not to bring any gifts; I accept the mother was also told that the service had a range of policies and procedures in place to ensure that risk is minimised. | Exhibit 2, pages 16 & 17. |
| 7 July 2023 | ORDERS – Altobelli J. I accept that the orders made by consent included that X’s supervised time with the father resume for no less than two hours per fortnight and occur at the Contact Centre and for the parents to contact the centre within 48 hours of the date of the order to arrange a further intake assessment. | |
| 17 July 2023 | I accept that when the father contacted the Contact Centre, he was told that the mother was yet to contact them. I accept he had his solicitors write to the mother’s solicitors about this. | Father’s affidavit sealed 13 October 2023, paragraph 301-302 |
| Late July 203 | I accept the Contact Centre contacted the father to advise that the mother had contacted the centre. | Father’s affidavit sealed 13 October 2023, paragraph 303 |
| 4 August 2023 | Contact Centre notes I accept, as set out in the records, that when the service emailed the mother to thank her for re-registering with it, it asked her to confirm that she had enrolled in a post-separation course and noted that it highly recommended Keeping Kids in Mind. I accept, as set out in the records, that when the mother contacted the service, she advised that having received the email she was unsure why she would have to do that course as she had never been in a relationship with the father. | Exhibit 2, p 19 |
| 8 August 2023 | Contact Centre notes I accept, as set out in the records, that when the service contacted the mother, she discussed not being in a relationship with the father and queried the services’ recommendation about the course. I accept that when the worker discussed that the purpose of the KKIM course was to focus on the child being at the centre of the parental interactions and that children deserve to be given an opportunity to have meaningful and positive relationships with parents and recommended another course to support the mother’s parenting, the mother said the course was not necessary as she did not see a need for it; she said that her past childhood or experiences did not come into play; she also advised that she had started to do the Circle of Security course with her social worker (and she was asked to provide the service with evidence of the same). I accept that the mother also asserted that previous visits at the service with the staff had been negative – she said X had felt forced and she did not want her to be forced. I accept that the mother said she had explained to X that the father was her “dad” and that the visit with him would be in a safe setting with a support worker. I accept that the mother discussed having a support person when visits resumed and said that Sunday was the best option – she was told that the service did not then have any vacancies on Sunday but this might change; I accept that when the mother and the worker discussed that the father could not bring any items to the visit, the mother raised that chocolate had previously been at the visit. I accept that the service subsequently emailed the mother to advise that the intake appointment would occur at the Suburb E premises on 15 August 2023 and to ask that she provide it with a copy of the completion of the Circle of Security course. | Exhibit 2, p 19-20 |
| 22 August 2023 | Contact Centre notes I accept, as set out in the records, that during the mother’s intake assessment (conducted via Zoom), the worker acknowledged that the mother had completed the Circle of Security course. I accept that when the worker explained that the KKIM (a post-separation course) focused on the child and increased parental efficiency and aimed to help parents to see through their own child's eyes and the impact of being in a parental conflict situation, the mother said she had not been in a relationship with the father. I accept that when the worker noted that the course focused on the conflict that is between two people and the effect this has on children, the mother reiterated that she had not been in a relationship with the father. I accept that, when the worker mentioned the requirements of the court order (namely, that the mother to adhere to court orders, attend visitations and follow recommendations from the service) and that the service highly recommended KKIM, the mother said that she will be losing parental access to X regardless. I accept the mother discussed the father being a “paedophile” and the sexual abuse allegations; she asserted that service case notes were false and that staff had previously falsified reports and that she had met with a psychiatrist who had said she had a personality disorder. I accept that the mother also advised, amongst a number of other matters, that the last contact between the father and X had been a video call in May 2022; she also said that she would enrol in KKIM in 2024 and that the father messages her regularly with threats. I accept the mother said that X was on the waiting list for occupational and speech therapy and that the paediatrician believed she had ADHD, ODD and autism, although she could not be diagnosed until she was six years of age. I accept that, when the worker told the mother she was expected to provide positive encouragement to X in relation to the visit with her father, the mother said that she would not be telling X it is okay. I also accept that the worker responded to this position by telling the mother that, because she is X’s mother, X would look to her for reassurance and guidance and that she could provide a positive response (which might be as simple as a smile) and could reassure X that the worker would be there. I accept that the records note that the worker was to provide intake contact details for the mother to enrol in KKIM. | Exhibit 2, p 21-23 |
| 2 September 2023 | Contact Centre notes X’s orientation I accept, as set out in the records, that when the mother and X arrived early at the service, X introduced herself and the mother and appeared calm, talkative, and smiled when conversing with the family support worker. I accept that the mother said that she had been here before and was not treated very well by other staff; she also said something to the effect of going back to Court and that she had been told she may lose custody of X due to what had been made up about her by the service last time. I accept she said that she would only attend on Sundays so her brother (Mr GG) could attend with her as a witness that X was not forced into supervised contact. I accept that the mother also said that the school thought that X had ADHD and was “high” on the “spectrum”, at which time the worker redirected the conversation to the upcoming contact. I accept X separated well from the mother and smiled and waved at her as she walked through to supervised contact. I accept that the services’ observations included that: X was observed to be articulate, talkative and as initiating conversation – she said “'I'm scared, lock him outside” and pointed to the outdoor area; she said that Mr Marriot “disgusts me and makes me sick, he yuk and allergic”; she said “I don't want him in my house”; “he touched my gina”. Despite these comments, the service noted that X appeared calm and relaxed during the changeover; further, when she was leaving the service, X was heard to tell her mother: "Mummy guess what I told them? I told them that I would lock [Mr Marriot] outside". I accept, as set out in the notes, that during a “post-orientation” discussion between the mother and the worker, the mother said, amongst other things, that during her previous experience with the service, other workers "dragged" X into supervised contact with the father. I accept that the worker told her that: the service would follow X’s cues and would not force her to attend supervised time with the father, even though attending such time is court-ordered; the service requires parents to encourage children to attend and to reassure them that they will be safe with the staff member present. I accept the mother said she would not encourage X to see the father if she did not feel safe with him or want to see him. I accept that the worker acknowledged this and explained that the service asked for the mother to provide X with reassurance and to remind her she was safe with the worker. I accept that the mother referred to the father as a "pedo" and discussed X potentially being taken out of her care: she continued to say she would not encourage X to attend supervised time with the father; she also said that she did not want staff to continue to force X to attend. I accept that the worker reiterated that, when asked if she wanted to go through to see the father, X would look to her mother for reassurance and asked her to provide the child with this by telling her "You will be okay; you are safe with FSW'. I also accept that the worker commented that the service did not expect X to spend time with the father if she felt unsafe; that the worker would follow her cues if she felt uncomfortable or wanted to leave and would remove her from the supervised time. I accept that the mother continued to express that she would not encourage X to attend. I also accept that the worker then concluded the conversation and explained that it was going around in circles and was not appropriate to have within X's earshot. | Exhibit 2, p 24-26 |
| 17 September 2023 | I accept that X had supervised contact with the father. I also accept that the mother’s evidence included that this visit was short, that X was returned to her care after about 10 minutes and that she was reserved. The mother also said that, on the way to the contact centre, X told her words to the effect of: "Why are you making me do this" and "you are breaking my heart'. | Mother’s affidavit filed 23 November 2023, paragraph 122; 124-126 |
| 17 September 2023 | Contact Centre notes I accept, as set out in the records, that both parents arrived at allocated time. I accept the mother placed her arm around X as they stood next to each other, and that X was heard making a slight wailing noise; there were tears on her face. The mother told X “its okay” numerous times and rubbed her shoulder – she told the worker that X had been crying and had wet the bed. I accept that, as she started to tell X that it was okay and that she was seeing “[Mr Marriot]”, the mother’s emotions became heightened, the volume of her voice became louder, and she had tears in her eyes. I accept that, when the worker asked her to keep her emotions at bay (as heightened emotions may unsettle X further and heighten any anxiety that may be present), the mother said in essence, how was she meant to not be upset when her daughter was and that was upsetting to see; she started to tell X they were coming to see Mr Marriot, even though X had said that she did not want to come – after which the worker asked her to let X speak. I accept that when the worker asked X what she wanted to do and told her that, if she wanted to leave, she had a voice and could tell her or do a “thumbs down”, X nodded – after which the mother said that X thought that she was just going with the worker again. I accept that when the worker asked X if she wanted to go through (to the supervised contact room) and told her “or you can leave now”, X nodded and said she wanted to go with the worker. I accept that X and a worker walked side by side to the playroom. I also accept that the mother told another worker that she was documenting everything in case the service made "accusations" about her. I accept that the father was outside the room but X could see him when she entered it; I accept she looked at the father and displayed a half-smile to him and he smiled and waved; I accept that when the worker asked her what she wanted to do and whether she wanted to play with the father, X gave the “thumbs down” sign – which the worker acknowledged ; I accept the worker told X that the father could not hear her and she could speak. I accept that X smiled at the father; she was told by the worker that the door was closed and locked as she had asked, and she nodded. I accept that when the worker asked X again if she wanted to play, the child said “no” and that she wanted to leave; when she asked if her mother could come into the room, the worker told her that only X could as it was for her and what she wants to play with and that the father would be outside with the door closed. I accept X stared at the father and smiled; she said she was scared; when asked how she felt on the inside, she smiled. I accept that when the worker suggested they return to the mother, she and X shared a “high five” and the worker told her that she was proud of X and thanked her for coming through; when she said that maybe next time they could play in the room, X smiled. I accept that the worker thanked X for attending and said that she would see her soon and that X and the mother left the foyer holding hands. I accept that when the worker spoke with the father and advised him that X attending the playroom was progress, he said that he would keep trying even though the mother did not want X in his life; he said that, when X was one year old, the mother would say that she would make sure that he was not in X’s life; I also accept that the father said that he wanted X to know that he loves her. He commented about the mother alienating X and brainwashing her and asked the worker about what would happen next. I accept that the worker told the father that the service would contact him before the next visit. I accept that the service recorded the outcome of the session as being that X attended the visit for a moment. I also accept that the mother sent the service an email later that day in which she asserted, amongst other things, that she had tried to get X to see Mr Marriot and had even told her in the car that he was looking forward to seeing her and that it was ok for her to go play with him and that that mummy would not be upset with her – but she just kept saying “No, I don't want to”. I accept the mother also apologised for crying but said that when she saw X upset that made her upset too. | Exhibit 2, p 26-27 |
| 1 October 2023 | I accept that the father’s evidence included that he and X had supervised time together for the full hour and 45 minutes and that X appeared to engage with and enjoy. I accept that the mother’s evidence included that X had been upset for about 25 minutes when they arrived at the centre and that she had been required to physically push her in to get her to go into the room so that she could spend time with the Mr Marriot. | Father’s affidavit sealed 13 October 2023, paragraphs 310-328 Mother’s affidavit filed 23 November 2023, paragraph 127 |
| 1 October 2023 Supervised contact 9:15am to 10:45am | Contact Centre notes I accept, as set out in the records, that X was observed to be resistant to attend on arrival and that the worker suggested that she spend some time drawing pictures. I accept that after she had drawn some pictures, X was happy to go to the supervised contact room to hang them up on the wall, knowing the father was waiting at the door. I accept that during X’s supervised contact with the father, the mother told a worker that the father’s car was parked outside and that this had really scared X. FSW assured the mother that all will be case noted. I accept that after the mother asked a worker whether X had gone into the room and seen the father and was told that she had, the mother said: "I hope he is not taking photos of her". I accept that the services’ supervised contact summary includes the following: 1. When the mother and X arrived, X hid behind the mother, who said that she thought the father was supposed to park out the back and that he was out the front which has set her (X) off; and 2. Whilst X continued to hide behind her back, the mother commented that X had wet her pants at vacation care because she was coming here; and 3. At the handover by the mother, she commented to X” “They’re not going to make you do anything you don’t want to do”; and 4. Having drawn pictures with the workers, X was offered the opportunity to place them up in the contact room and father being advised that “[Mr Marriot]” was outside the door of room, she independently and willingly walked into room; and 5. After she entered the room, the father acknowledged X with a smile and eye contact – she walked around the room near him to hang her pictures and, after she started drawing with a worker, he joined in quietly: after he complimented her drawing and told her what he was drawing, X looked at him and smiled; and 6. When the father commented “I wonder what colour I should use next?”, X said I think blue” – she moved from her chair, walked around the table to the father and handed him the blue marker: subsequently, back and forth conversation (which centred on drawing) occurred between X and the father; and 7. X subsequently initiated going outside and invited the father to play hide and seek and other play, including soccer, shooting goals and drawing during which the father made comments such as telling her that he liked her drawing and the colours she was using and that he was happy to see her; and 8. X was seen to initiate play and interactions with the father; she was seen to smile, give eye contact and use positive engagement- when the father offered his hand to help her off the rocking horse, she declined and he accepted her response: the conversations between the father and X were appropriate; and 9. Close proximity between X and the father was seen to occur during the period of outside play; and 10. The father respected X's space and her emotional cues; and 11. After seeing a child walk past the room at 10.35 am, X said “It’s time to see mummy now”; and 12. After the worker asked X if she would like to say goodbye to the father, X walked herself back into room where the father was, waved and said: “Bye, see you next time” and the father replied: “Thank you for playing, see you again”; and 13. X was seen to skip down hallway, smiling. I accept that the service noted that X needed time to feel secure and familiar with the worker and the environment at the start if the session; the father was seen to provide strategies, did not overwhelm X and followed the worker’s lead. The service also note that the session of supervised contact had gone well: X had initiated interactions, games, drawing and conversation with the father and he had been responsive to her emotional needs and had provided opportunities for them to connect and engage positively. I accept that when the father was provided with positive feedback about the session, he said he had had a great time and had never had that much interaction with X. | Exhibit 2, p 28-29 |
| 15 October 2023 | I accept that the father cancelled the supervised contact visit that was scheduled to occur. | Exhibit 2, p 29 |
| 17 October 2023 | Contact Centre notes I accept, as set out in the records, that when she called the service, the mother asked the Co-ordinator if it had been documented that it took 25 minutes for X to separate from her and that she had not wanted to go through to the contact room. I accept the mother was told that the notes were written based on the observations of the staff. I accept that the mother asserted that, in the past, the service had failed to included information in the case notes that should have been there, and she was now making her own records. I accept that the mother also said that she was concerned with the comments made by a particular worker in her efforts to encourage X to attend the playroom. I accept the service subsequently emailed the mother to confirm that the next scheduled contact visit set for the 15 October 2023 had been cancelled by the father. | Exhibit 2, p 29-30 |
| 29 October 2023 | I accept that the mother’s evidence included that, whilst the parties attended at the Contact Centre, X did not want to see the father and did not enter the room. | Mother’s affidavit filed 23 November 2023, paragraph 129 |
| 29 October 2023 | Contact Centre notes I accept, as set out in the records, that when the father arrived at the allocated time, he discussed the previous visit being positive as X had stayed and engaged in play activities with him. I accept that the service regarded the previous father as positive and that there had been no concerns about it. I accept that, when the mother and X entered the foyer at the allocated time, X was seen to be shaking – although this stopped instantly when a worker spoke to her; she smiled when she greeted the worker. I accept the mother was seen to be rubbing X’s arm and say “it is okay” several times; she also said that she was not going to physically force X to go through like the last visit and that the worker would listen to X. I accept that when the worker asked X if she would like to go with her, X looked at the mother and nodded her head “no”. I accept the mother told X that she could go through and that she would not be in trouble – she made these statements several times. I accept that when the worker knelt beside X and asked her if she would like to hold her hand and go and do some drawing, X said that the worker had tricked her; when the worker questioned this statement, X said she did not tell her that “[Mr Marriot]” was in the room. I accept that the worker acknowledged and confirmed that he was in the building and that she was listening to X before asking her is she would like to go and do some drawings and they could have him in another room. I accept that X looked up towards the mother, who said that it was okay. I accept that when X asked if the mother could come with her and the worker said that she could not although she maybe could stay where they then were, the mother shook her head and said that she could not stay in this building and that she felt sick at even the thought of being in the same building as the father. I accept that when the mother proceeded to discuss receiving advice from her solicitor, the worker put her hand up and directed the mother to stop the discussion in front of X. I accept that when the worker asked X if she would like to sit in the kitchen with her and draw whilst the father was in the other room, X stared at her; when the worker again mentioned drawing like they did the previous visit and asking “[Mr Marriot]” to stay in the other room and told X that she would listen to her if she wanted to leave, X said that she had wanted to leave last time though the worker did not listen. I accept the mother then showed X the “thumbs down” and reminded her about this; I accept that the worker and X discussed this and that the worker told X she had a voice and needed to tell her otherwise she would not know. I accept that the worker told X that if today she wanted to leave early, she could tell the worker and she would call the mother who would not be far away and who would have her phone on. I accept that X continued to say that she would not go through to the contact room. I accept that when the worker told the father that X would not be coming through to the contact room, he said he was confused and mentioned that X must be confused; he said she had been happy to be with him at the previous visit and it was confusing and a pattern – the visit is positive and then X does not want to go through. He discussed that in the previous year X had been positive at a visit and then there had been a child refusal. | Exhibit 2, p 30-32 |
| 12 November 2023 | I accept that the mother evidence included that, on the way to the supervised visit with the father, X said words to the effect of, “I don’t want to go”. | Mother’s affidavit filed 23 November 2023, paragraphs 130-131 |
| 12 November 2023 | Contact Centre notes I accept, as set out in the records, that when the mother arrived with X, X walked in backwards, holding onto the mother's top with her face resting on the mother’s stomach. I accept that, when the worker greeted her and thanked her for coming in, X said: “I'm not going in”. I accept the mother started talking about a conversation she had had with X prior to attending and about how X could go with the worker; if she was not happy, she could leave, and the worker would not let her stay if she was not happy and commented that X must have wanted to go through on the previous occasion. I accept that, after one worker invited the mother into the lounge room for further discussion, X was asked to go through and say “hi” to the father and to see how she goes. I accept X said: “No I'm not allowed to”; when the worker told her that it was okay and she would be with her, X said: “'Mum is crying cause she is never gonna see me again, cause I'm going to a new school, far away”; I accept that when the worker asked her “How far away is the new school?”, X said: “[Mr Marriot] is gonna put me on airplane far away so I can't see mum, mum told me”. I accept she also said that: “But I love mum. I don't love him. I don't wanna see him, cause I hate him. He touched my gina”. I accept that when the worker asked X “What does love look like?”, X said: “I'm scared, cause he touched my gina, so when I go to his house he will touch me even more”. When the worker told X that she could see that she looked worried, X said: “Mum said he loves touching peoples ginas. Mum will cry so I cant see him. I'm not going, he will take me away. Mum said he will take me away today. I can't see [Mr Marriot]”. I accept that when the worker told X that she was not going to make her go, X said: “I just love my mum, he will take me away from her”. I accept that after she acknowledged X's feelings, the worker suggested that she knock on the door to the lounge area so the mother would know that she was ready to go. I accept that the father was advised that the supervised contact was not going to go ahead and the service recorded the outcome as being “child refusal”. I accept that the services records also include (under the heading “Notes Summary”) that, when a worker spoke with the mother away from X: 1. When asked if she had completed KKIM, the mother said that she had not because she had too much to focus on; and 2. When asked how she was feeling, the mother said she felt uncomfortable attending the supervised contact and was anxious about the final hearing; and 3. The mother said that X did not want to attend and that she had never referred to the father as "Dad" but had always referred to him as "[Mr Marriot]"; and 4. The mother said she had spoken to X about being taken from her – she said she had explained to X that she may need to live with the father, that this was not the mother's decision and that it was not up to her (the mother) to make this decision; and 5. The mother said X was fearful because she wanted to stay with her; and 6. The mother said how much she loves X; and 7. The mother discussed how feelings of previously accessing the service and said that it had made her appear as a "mess"; and 8. The mother said she had a strong support network of family and friends; and 9. When the worker asked her if she would like recommendations for counselling and other support, the mother agreed and said that she would prefer to have counselling via phone because she had not had pleasant experiences when she has attended counselling services on a face-to-face basis; and 10. The mother said that X had recently been diagnosed with ASD and may have ADHD and had been booked in to attend occupational, speech and other therapies; and 11. The mother said that she did not want to continue “forcing” X to attend supervised contact and that her solicitor had advised her not to force X to go if she did not want to attend – she also said that she struggled to pay for the supervised time. | Exhibit 2, p 32-33 |
[52] Although the father’s evidence did not include dates, it seemed more likely than not that the evidence given in paragraph 80 of his affidavit related to this approximate timeframe.
[53] Although the father’s evidence did not include dates, it seemed more likely than not that the evidence given in paragraphs 88 to 91 of his affidavit related to this approximate timeframe.
[54] The name is redacted in the police records. However, given the evidence throughout the trial, it is clear that the redacted name is that of the maternal grandmother.
[55] In the sense that the name of the person was redacted.
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