MCFEIN & SARAPOVA

FAMILY COURT OF AUSTRALIA

MCFEIN & SARAPOVA

[2010] FamCA 1229

FAMILY LAW – CHILDREN – With whom a child lives – Risk

APPLICANT:

Mr McFein

RESPONDENT:

Ms Sarapova

INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Partners

FILE NUMBER:

SYC

8440

2007

DATE DELIVERED:

23 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

17,18,19,20,21,
23,24 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jauncey

SOLICITOR FOR THE APPLICANT:

Clayhills Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

Diana Perla & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Michael Tiyce

Orders

That all existing orders in relation to the child V, born … May 2005, (‘the child’) are discharged.
That the father and mother have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father, commencing on the second weekend after the date of these orders from 10:00am until 4:00pm on Saturday, and each alternate weekend thereafter under the supervision of Ms W for a period of 3 (three) months or such shorter period as she is prepared to accommodate.
Upon the expiry of order 4, that the child spend time with the father:
5.1from 10:00am until 4:00pm on the Saturday and Sunday of each alternate weekend
5.2on Christmas Day 2011 and each alternate year thereafter from 10:00am until 5:00 pm
5.3on her birthday from 11:00am to 3:00pm on a weekend or from 5:00pm to 7:00pm on a school day
provided that all such time is supervised by one of the paternal grandparents or the paternal aunt.
That the period referred to in order 5.1 extend from 10:00am on Saturday until 5:00pm on Sunday of each alternate week when the child turns 7 (seven) years of age, subject to the requirement for supervision set out in order 5.
That the period referred to in order 6 extend to the conclusion of school on Friday to the commencement of school on Monday in each alternate week when the child turns 8 (eight) years of age, subject to the requirement for supervision set out in order 5.
That all overnight periods prescribed in orders 6 and 7 take place at the home of the paternal grandparents or aunt.
From the child’s 10^th (tenth) birthday, she spend time with the father for one half of all of the short school holidays, as agreed between the parties but failing agreement for the first half of even-numbered years and the second for odd-numbered years, and during the Christmas school holiday period for two five day blocks as agreed between the parties or failing agreement for the second week and the fourth week.
That the requirement for supervision between the child’s 8^th (eighth) and 10^th (tenth) birthdays be suspended on the basis that the night time occurs at the home of the paternal grandparents or the paternal aunt and that those persons or any of them be present in the home during this time.
That any requirement for supervision/monitoring and any limitation as to venue is discharged from the child’s 10^th (tenth) birthday
That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That, within one month of the date of these orders, the mother pay to the father a sum of $1,900 on account of Dr Q’s fees.
That, within one months of the date of these orders, the mother pay the balance of Dr Q’s fees in the sum of $1,200.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8440 of 2007

MR McFEIN

Applicant

And

MS SARAPOVA

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr McFein and Ms Sarapova are the parents of a little girl, V, born in May 2005 and now 5 years old. The applicant father initially sought orders that the child live with him and spend time with the mother each alternate weekend and for half of all school holidays. By the end of the trial he had sensibly abandoned this application. He then proposed that the child remain in the primary care of the mother and spend alternate weekends and half of all school holidays with him. He was prepared to accept supervision of the child’s time with him until she starts school at the beginning of 2011.
The respondent mother and the Independent Children’s Lawyer (‘the ICL’) proposed that the child live with her and spend supervised time with the father until her 12^th birthday. This time would gradually increase to alternate weekends and half of all school holidays.
The mother alleged that the father sexually abused the child, an assertion which he strongly denied. He maintained that, if any person had sexually abused the child, the perpetrator was the mother’s current partner Mr C. The father seemed to suggest that the most likely explanation for the child’s disclosures of sexual abuse was “coaching” by the mother.
In final submissions the ICL suggested that there was “not sufficient evidence that the father or anyone else sexually abused the child”. The mother pressed for a finding that the father sexually abused the child.
Another significant issue in the proceedings was the effect on the father of a major brain injury which he suffered in 1979 when he was 13 or 14 years old. He was left with permanent frontal lobe damage after a drunken driver hit him while he was riding his bicycle. Unfortunately, the father’s injury has adverse effects on his cognitive and emotional functioning. As appears below, he has made very creditable efforts to overcome the effects of his injury.
I will consider in the course of these reasons the impact of the father’s injury on his capacity to provide for the child’s needs and whether she requires protection while in his care. There is no doubt that the effects of the injury on the father’s behaviour during the parties’ relationship have had major ramifications on the mother’s ability to trust him.

Background

The father was born in 1965 and is now 45 years old. He has deliberately misrepresented his date of birth, so as to appear younger, on a number of occasions and on several official documents.
The mother was born in 1980 in the Ukraine and is now 30 years old. She came to Australia with her parents in 1996, at a time when she had a limited command of the English language.
In 1986 the father was awarded a gross sum of $225,000 as compensation for his brain injury. His father seems to have taken control of this money and made a number of unsuccessful investments. Some of the investments appear to have been intended to advance his own financial interests, rather than those of the father. They have been in dispute for many years about repayment of this money and compensation for the father’s loss. Nonetheless, both the paternal grandparents supported the father in these proceedings and gave evidence in his case. They had no hesitation in offering themselves as supervisors of the child’s time with her father.
The parties met in 1996 when the mother was 16 and the father 31 years old. He told her that he was 23 but informed her of his true age in about November 1996. They began engaged soon after their relationship commenced and lived together in the home of the mother’s parents. Shortly afterward, the maternal grandparents moved out of the property.
In 1999 the mother leased a flat and the father moved in with her. They separated in November 2001 but reconciled in September 2002. Late in 2002 the parties moved into the maternal grandmother’s apartment and then took up their own accommodation.
In late 2002 or early 2003 the father was charged with two counts of obtaining money by deception. For the purpose of these criminal proceedings he was assessed by a psychiatrist, Dr J, and a clinical psychologist, Dr T. Dr J prepared a report dated 19 July 2003, which was tendered in these proceedings. Dr T carried out a neuropsychological evaluation of the father and prepared a report dated 8 July 2003. She reassessed him on 17 July 2009 and prepared an updated report.
During the pregnancy with the child, the mother moved out of the parties’ home and went to live with the maternal grandmother. In March 2006 the father travelled alone to Brazil for 4 to 6 weeks, at a time when the child was only 10 months old.
After the child’s birth the father continued to live in the flat the parties had shared. The mother and the child stayed with the maternal grandmother. The father visited from time to time and then moved into an apartment rented by the mother in June 2006.
In August 2006 the mother and the child spent two months in the Ukraine, with the father’s consent. He again went to Brazil for two weeks but told the mother that he was in Canberra, for reasons associated with his studies for a university degree. It seems that he was involved in a relationship with a Brazilian woman during these two trips to South America.
The mother and the child returned from Russia to Sydney on 24 September 2006. The father had been living in the maternal grandmother’s apartment. The mother maintained that the premises were in a very messy, unhygienic state upon her return. She said that she then ended the relationship. The father agreed that the relationship ended at this time but gave different reasons which amounted to significant incompatibility between the parties.
After the separation the father rented a flat. The child spent time with him during the day until December 2006, when there was an unsuccessful attempt at an overnight stay. The father rang the mother at about 11:00pm, after the child failed to settle, and she collected the child.
In December 2006 the mother met her current partner, Mr C, a German national who was on a working holiday in Australia. They quickly formed a relationship but he was obliged to return to Germany in January 2007.
The mother did not tell the father about her new relationship. In January 2007 she told him that her mother had won a trip to Paris and wanted her to accompany her. The mother told the father that she intended to carry out some business for her mother in Hungary and Germany. These statements were untrue and, in fact, the mother intended to travel to Germany to pursue her relationship with Mr C.
The father expressed concern about the effect on the child of a long flight to Europe but the mother left with the child in late January or early February 2007. Unbeknown to the father, they went to live in the home of Mr C’s mother in Germany. They lived there until May 2007, when they moved to Munich due to Mr C’s employment.
In April 2007 the mother told the father that she was engaged to a German man and wanted to stay in Germany until February 2008. The father commenced Hague Convention proceedings for the return of the child, which were finalised by way of formal undertakings. The mother and the child returned to Australia in February 2008.
Between February 2007 and February 2008 the father made two trips to Germany to see the child. During the first trip in May 2007 the mother allowed only a couple of hours daytime contact and did not permit the father to see the child each day.
The father returned to Germany shortly before Christmas 2007 and stayed for only a brief time. During this visit the mother permitted the child to spend time with him only under her supervision.
In October 2007 the father qualified in his profession. In February 2008 he secured employment in Sydney. On the last day of the trial I was informed that he had just accepted a new position.
Between March and October 2008 the child spent increasing amounts of time with the father, culminating in alternate weekends from Friday afternoon until Monday morning. The father and the child stayed in the home of the paternal grandparents or with his aunt, on these occasions.
According to the mother, the father contacted her in April 2008 and told her that the child’s vaginal area was red and sore. He allegedly told the mother that the child had complained to him about soreness, so he checked her genital area.
According to the father, the child complained to him of soreness in mid-2008 and he observed that her vaginal area was red and swollen. He said that he asked the mother to seek medical attention.
On 14 April 2008 Dr B examined the child in the presence of the mother and maternal grandmother. She observed an inflamed vulva and prescribed cream to treat the condition. The mother said that the condition resolved after a few applications of the cream. She maintained that the child always returned from the father with an irritated vagina and in a temperamental mood.
The mother alleged that the child made a disclosure of sexual abuse to her for the first time on 10 September 2008. I will consider below the details of this alleged disclosure and subsequent similar statements by the child.
Following this conversation the mother spoke by telephone with the paternal grandfather. He allegedly said “I don’t think it is what you think it is but I will keep my eye on it all when [the child] is in [the father’s] care”. The mother then spoke to an unidentified counsellor on a “help line” for two hours. There was no evidence as to what she was told by this person.
The mother made a notification to the then Department of Community Services (“DOCS”) on 11 September 2008. She alleged that, thereafter, the child continued to complain that the father hurt her and touched her inappropriately and that she began to soil herself. The mother made another notification to DOCS on 25 September 2008 and the matter was referred to the Joint Investigation Response Team (‘JIRT’).
On 30 September 2008 a JIRT caseworker conducted “a risk of harm assessment”. Dr Z recommended a paediatric assessment, as the child’s symptoms suggested the common childhood condition of vulvo-vaginitis. JIRT rejected the referral because the child had made no disclosure of sexual abuse.
On 1 October 2008 the mother’s solicitor wrote to the father and informed him that she had unilaterally suspended the child’s time with him. The father replied on 2 October 2008 and, inter alia, indicated his concern that the child was being left alone with Mr C.
On 5 October 2008 the paternal grandparents visited the child at the home of the mother. She told them to leave when the paternal grandfather tried to talk to her about the allegations of sexual abuse.
Early in October 2008 the father received a phone call from a DOCS worker, who informed him that the mother had complained that he touched the child inappropriately. The father had a voluntary conversation with this DOCS officer.
On 6 October 2008 the father attended Hospital and informed staff that he felt depressed, suicidal and was having difficulty in coping. Hospital staff assessed that he was a low suicide risk.
On 10 October 2008 the father made a notification to DOCS. On 15 October 2008 DOCS closed the case.
On 12 October 2008 the father again attended Hospital and told staff that he was feeling depressed. He was given further advice and medication.
On 16 October 2008 the mother asked Dr B for a referral to a psychologist for the child. On 23 October 2008 she took her to the first of many consultations with Ms D. The child made a disclosure of sexual abuse by the father during the first consultation with Ms D .
On 13 November 2008 the father filed an application for parenting orders in the Federal Magistrates Court. On 19 December 2008 interim orders were made by consent, providing that the child spend time with the father for three hours on three specified dates under the supervision of a professional person, Ms W. These orders also provided that the child spend time with her father from 12 noon until 2:00pm on 26 December 2008, under the supervision of the maternal grandmother.
On 24 December 2008 the father consulted Dr A at his local Medical Practice. He reported feeling anxious, depressed and suicidal. She prescribed antidepressant medication.
On 22 January 2009 interim orders were made by consent, which provided that the child spend time with the father each alternate Saturday from 11:00am until 2:00pm under the supervision of Ms W. These orders permitted the father to bring members of his family to the visits.
On 25 February 2009 the child made a disclosure of sexual abuse by the father to a childcare worker, Ms S. In April 2009 she made a further disclosure of sexual abuse by the father to Ms L. These disclosures prompted further notifications to DOCS.
On 28 April 2009 a JIRT team interviewed the child. Their notes indicated that the reports may be “malicious” because the parents had made allegations against each other. On 11 May 2009 the father attended a voluntary interview with JIRT officers.
On 14 May 2009 the child made another disclosure of sexual abuse by the father to Ms D, who made a further notification to DOCS. On 14 November 2009 the child made a further disclosure to Ms S, who again notified DOCS.
In December 2009 orders were made by consent which provided that the child spend time with the father on 25 December 2009 and on 27 December 2009. This time was supervised by the maternal grandmother.
On 18 January 2010 the child made a further disclosure of sexual abuse by the father to Ms G, who made another notification to DOCS.
On 15 February 2010 the father attended the child’s kindergarten. There was a dispute between him and the principal as to the nature of his behaviour but the upshot was that police attended and required him to leave the premises.

The Evidence and Witnesses

The applicant father relied on the following affidavits:
1.the father sworn on 10 March 2010, 19 February 2010, 13 August 2010
2.the paternal grandfather sworn 19 February 2010
3.the paternal grandmother sworn 19 February 2010
4.Ms K welfare worker and father’s friend sworn 23 February 2010
5.the father’s aunt sworn 3 March 2010
6.Dr F (consulting psychologist) sworn 9 March 2010
7.Mr X (police officer and father’s friend) sworn 11 December 2008
Ms K, Dr F and Mr X were not required for cross-examination.
The respondent mother relied on the following affidavits:
1.the mother sworn 25 February 2010
2.Ms S (childcare worker) sworn 8 February 2010
3.Ms Y (childcare worker) sworn 24 February 2010
4.Mr C (mother’s partner) sworn 23 February 2010
5.the maternal grandmother sworn 17 February 2010
6.Ms G (mother’s friend) sworn 22 February 2010
7.Ms D (the child’s psychologist) affirmed 10 April 2010
Ms S and Ms Y did not give oral evidence.
The ICL relied on an affidavit of Ms W, the professional contact supervisor, sworn on 12 March 2010. Ms W gave oral evidence.
I had the benefit of a Magellan report dated 26 March 2009. I also had the considerable assistance of three reports and oral evidence from the single expert, Associate Professor Q (‘Dr Q).

Approach to These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.

The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…
In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨   make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
“…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
and at page 75:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”
In M and M the High Court identified the relevant standard of proof as (at pp76-77):
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’”
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(3) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.”
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
“In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
“In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool in the determination of the issue of “unacceptable risk”.

The Allegations of Sexual Abuse

The mother alleged that the child started to “hump her teddy”, bed wet and scream at night in March 2008. Perhaps relevantly, she had returned from Europe in February 2008 and immediately began to spend time with her father each fortnight. Between April and September 2008 the child’s time with her father gradually increased to block periods of approximately three days per fortnight.
On 4 March 2008 the mother took the child to Dr B, who noted that “the reason for contact” was a viral urinary tract infection. On 14 April 2008 Dr B examined the child in the presence of the mother and the maternal grandmother. The mother told Dr B that she was concerned about “child irritability, sleep disturbances at night and redness in the genital area”. (sic) Dr B observed “redness of vulva between labia major on inner surface and inflammation of vulva”. She prescribed a cream and the condition quickly resolved.
The mother alleged that the child’s vagina was “irritated” on each occasion when she returned from time with her father. He maintained that he saw redness in her genital area on numerous occasions, while helping her to dress, from about July 2008.
The mother alleged that the father told her in April 2008 “[the child’s] vagina is red and she is hurting”. She maintained that this statement prompted her to take the child to Dr B on 14 April 2008.
The father alleged that he said to the mother “[the child] told me that she is sore in the genital area, it is red and swollen” and asked that she take the child to a doctor. He said that he conveyed this information to the mother after the first occasion when the child said to him “owa Daddy it’s owa” and pointed to her genital area. He estimated that the child began to complain of soreness and that he first observed genital redness about July 2008.
The father maintained that the mother gave him the cream prescribed by Dr B for use when the child was suffering from redness in the genital area. The mother denied that she ever gave cream to the father.
The notes of Dr B (exhibit 6) show that she prescribed Kenacomb cream on 1 July 2008 as well as 14 April 2008. The second prescription was for “skin rash on R buttock”.
In August 2008 the father asked the mother to allow the child to spend time with him in a house which he shared with an older couple. To this point, she had spent time with her father only in the homes of the paternal grandparents or aunt.
On 25 August 2008 the parties attended a Legal Aid conference. The mother made no suggestion of any possibility of sexual abuse of the child by the father.
The child spent time with her father from 10:00am until 7:00pm on Fathers Day, 7 September 2008. After this visit she made her first complaint of sexual abuse, which the mother described as follows:
“On Father’s Day, 7 September 2008, [the child] spent time with [the father], from 10am to 7pm. When she returned she was whingy and snappy. Three days later on Wednesday, 10 September 2008, [the child] was still quite irritable and I was bathing her. She did not let me wash her around her vaginal area but this was usual. I said to her words to the following effect:
‘Can I wash you carefully, or do you want to wash yourself?’
[The child] replied, in a voice that was very disturbing to me:
‘No mummy, don’t hurt. Don’t hurt me.’
I became extremely concerned and worried. I said to [the child] words to the following effect:
‘What is wrong? Why do you think that I would hurt you?’
She said to me words to the following effect:
‘No mummy, I don’t want to talk.’
I took her out of the bath and sat her down on the bed and hugged her and sang her a song. She kept whimpering and saying:
‘No mummy. No mummy. Please no.’
I was very, very worried. I said to her words to the following effect:
‘I am your mummy and I am your friend and I will protect you. You don’t have to have any secrets from me and you can tell me if anything is wrong.’
I then said to her:
‘Did someone hurt you?’
And she answered in a quiet voice:
‘Yes, daddy hurt me there.’
My head started spinning. I said to her words to the following effect:
‘How?’
She said words to the following effect:
‘With his finger.’
She then started crying and rocking in my arm. She said words to the following effect:
‘I don’t want to talk any more. No butterflies, no butterfly.’
And then she started rocking herself in the corner of her bed. I felt helpless and I gave her a hug and reassured her with words to the following effect:
‘You can tell me anything you want and I will protect you and I will not be angry with you.’
I said:
‘Do you want to show me what happened?’
She then lay down on her bed and spread her little legs and said:
‘Daddy did this.’
As she was rubbing her genital area. She then curled up in a ball and said words to the following effect:
‘I don’t want to talk any more.’
I then stroked her head and sang her a song.”
The mother made a report to DOCS on 11 September 2008. As noted, she rang the paternal grandfather on 10 September 2008 and apparently informed him of the child’s complaint. She alleged that he said “I don’t think it is what you think it is but I will keep my eye on it all when [the child] is in [the father’s] care”. The mother requested him to ensure that one of the paternal grandparents was present at all times during the weekend of 19 September 2008.
On 12 September 2008 the mother took the child to Dr N. She told the doctor that she suspected sexual abuse but, nonetheless, sent the child to spend the following weekend with her father. She alleged that the child again refused to allow her to wash her or put on her underwear when she returned from this visit. According to the mother the child regularly soiled herself and complained that her father had hurt her from this point.
On 30 September 2008 the matter was referred to JIRT and the child was taken to the Randwick Children’s Hospital Child Protection Unit. She was examined by Dr Z, who advised that her symptoms were indicative of a typical childhood genital condition known as vulvo-vaginitis. JIRT rejected the referral as the child had made no disclosure of sexual abuse.
On 1 October 2008 the mother unilaterally suspended the child’s time with the father. At the same time he became suspicious that the child was being sexually abused by the mother’s partner. In correspondence with the mother’s solicitor, the father noted that the mother had told him that the child’s genital redness and pain were due to an infection which she had picked up from the toilets at her kindergarten.

On 16 October 2008 the mother attended Dr B’s surgery and requested a referral to a psychologist because of her suspicion of sexual abuse. On the same date Dr B formulated a “GP mental health plan” for the child and noted “problem/diagnosis: generalised anxiety, irritation in genital area, history of incontinence, faecal incontinence”. The child was then referred to Ms D.
On 23 October 2008 the child made the first of a number of disclosures to Ms D. She said “I don’t want to visit Daddy, he hurt me on my bummy”. These disclosures continued over subsequent months.
On 25 February 2009 the child made a disclosure to a childcare worker, Ms S. During a visit to a library the child saw a red button in the bathroom and asked “what is that for?”.Ms S said to her “it is for danger or if you need help”. They then had the following conversation:
“[The child]. If you press that button police will come and take the bad people away. My daddy is a bad person.
Ms [S]. Are you happy with your daddy?
[The child]. No I am scared of my daddy because he touched my pitzer.”
“Piessia” is, apparently, a Russian word for “vagina”. Various spellings appeared in the affidavits and other written evidence.
Ms S also said in her affidavit that she saw the child masturbating, groaning quite loudly and staring in a vacant manner. She deposed that the child had soiling and wetting problems which ceased in 2009.
Ms S made a notification to DoCS and this time JIRT accepted the referral. The JIRT file (exhibit 14) recorded that there had been nine previous notifications of “risk of sexual harm” between October 2008 and April 2009.
The child was interviewed by JIRT on 28 April 2009. A JIRT officer made these notes of the interview:
“K – Use voice – outside voice
[child] – [V] dunno
K – Birthday?
[child] – I’m 3
K – Favourite colour is pink
Talking about drawing
K Story about boy?
Not established
K Pink pen – truth?
Established
Colouring
K Break – let me know
K Why here?
[Child] Don’t know
K Family?
[Child] G/ma, mama, grandpa, nanny, daddy and Dan
K Bros/sisters?
[Child] No
I When I’m big I’ll have a baby
K Like about mum?
[Child] Cuddles and kiss. Like when drop me off to kindy, go to [M’s] house, like that mamma gives me presents
K Don’t like about mummy?
[Child] Hurt me. I don’t like mummy to hurt me
Walk around
K What do you mean by hurt?
[Child] Don’t know
K Daddy
[Child] + don’t like when he touch my pitzer
K What touch with?
[Child] His hand
K Any other word for pitzer?
K Where is pitzer?
[Child] Draw – on vagina
[Child] I call my bummy bottom
K Tell me everything about that
[Child] No
K Why?
[Child] I don’t know why
K Where were you?
[Child] Somewhere else in his house
[Child] I don’t know
K What feel like?
[Child] I don’t know
[Child] I just saw him just touch my pizzer
[Child] […] is neighbour
[Child] Nice lady girl
K What like about daddy?
[Child] Mm mm
K. What like?
[Child] Pink
[Child] I like him give me presents
K Anything else?
[Child] He give me colours and paper to draw
K What don’t like?
[Child] Just – I don’t know
K Why touch?
[Child] Cause he wanted to
K Feel like?
[Child] Sad
K Where?
[Child] I was sad
K Say anything?
[Child] No
K Were your clothes on or off?
[Child] On
K How did that happen?
[Child] –
K Told anyone?
[Child] mamma
K What did Mamma say?
[Child] Not nice
K Live with daddy?
[Child] No
K How know?
[Child] –
K When do you see daddy?
[Child] I don’t know
K Who lives with you?
[Child] Mummy and [Mr C]
[Child] He goes to work
K Who is?
[Child] My daddy
K What like?
[Child] He gives me presents
K What don’t you like?
[Child] He don’t hurt me
K What mean by that?
[Child] I got one picture
K Hurt me – how hurt?
[Child] Push
K On anything else?
[Child] No
K I’m a police lady – help kids
K Anything else?
[Child] No”
On 19 September 2009 the single expert, Dr Q, reported:
“There are allegations that the child has made disclosures of sexual abuse. I did not question her specifically since she has been interviewed and questioned already and it would be damaging to her for such questioning to be repeated. However I note from the JIRT file that it is not at all clear that [the child] made a convincing disclosure and there does not appear to be any independent party who has witnessed a disclosure or sexualised behaviour.
[The child’s] relationship with her father is extremely affectionate and close and she showed no indication of anxieties or difficulties concerning him. This does not necessarily exclude the possibility of sexual abuse but certainly there is no evidence clinically to support this.”
Dr Q watched the recording of the JIRT interview of the child on 28 April 2009 and offered these comments:
“[The child] names persons in her family. She has some difficulty with the concept of truth and lies, which is not remarkable given her young age. Asked what she doesn’t like about her mother [the child] says ‘hurt me’ and there is a suggestion of a freeze response; this is possibly indicative of trauma and gives cause for concern. By contrast when she talks about daddy touching her ‘pitzer’, [the child] does not show that kind of response and seems undisturbed and continues playing. She is not able to give much context for that disclosure: he touched her with his hand and it was in his house. What did she feel like? ‘Sad’ When asked what she doesn’t like about daddy, [the child] does not repeat the disclosure.
[The child] mentions [Mr C]; he is ‘daddy’. What does she like about him? ‘He don’t hurt me.’ It is of concern that that is her first response. Asked to elaborate on ‘hurt’, she says ‘push’; she becomes restless, loses attention and the interview is terminated.”
Dr Q considered that the child was referring to her father when she said “daddy” during most of the interview.
A number of witnesses gave evidence of further disclosures by the child of sexual abuse. Ms S deposed that, on 4 November 2009, she had a conversation with V and her friend M. M said to her: “Did you know that [V’s] dad doesn’t live in the same house as her?” V replied: “Yes because he touched my pitzer. I was a bit scared.” Ms S made a further notification to DOCS and was told by an officer: “You do not have to continue reporting these types of disclosures, the case is closed.”
Counsel for the ICL submitted that “there is insufficient evidence for a finding that the father or anyone else sexually abused the child”. Counsel pointed to the disruption in the child’s life prior to the disclosures and the anxiety which these multiple changes must have generated. It was suggested that this disruption had an impact on the child’s behaviour.
I see merit in this analysis. On any view, the mother and father had a turbulent relationship marked by chronic conflict. When the chlid was only 15 months old the mother took her to the Ukraine for two months. Almost immediately upon her return there was an unsuccessful attempt at overnight time with the father.
In December 2006 the mother entered into a relationship with Mr C, thus a significant new person entered the child’s life. Mr C left Australia in January 2007 and the child did not see him again for about one month. The mother then took her to Germany and they lived with Mr C’s mother for the next three months. They moved from within Germany in May 2007 and returned to Australia in February 2008.
The child saw her father in Germany for very limited periods in May 2007 and around Christmas 2007. After she returned to Australia she spent increasing amounts of time with her father in the homes of either the paternal grandparents or a paternal aunt. It is thus abundantly clear that she experienced numerous changes and significant disruptions in her young life. When this chronology was put to Ms D she said: “certainly it is possible that it would be disruptive to a child and cause clinginess”.
The mother began to notice the child screaming at night, “humping her teddy” and wetting the bed early in 2008. She had just been separated from her father for 12 months, at the age of less than three years. On her return from Europe in early 2008 she immediately began to spend time with her father, which increased to block periods of three days and nights over a few months. Previously she had to adjust to living with Mr C and his mother. It is hardly surprising that she exhibited disturbed, unsettled behaviour.
The mother said that she was very worried about the child staying overnight with her father, because she had concerns about his ability to care for her and his “mental condition”. It would not be surprising if she conveyed her uneasiness to the child.
The mother said that she was “shocked” when her father told her that the child’s vagina was red and sore in April 2008. She immediately questioned why he would look at her genital area. It seems to me that it would have been remiss of him to do nothing about the child’s complaints of soreness. It would also have been remiss of him to fail to apply cream to relieve the condition. Ms D said: “of course I would expect a father to apply cream if a child had an irritation”. It could well have been that he inadvertently hurt the child when he applied the cream.
Dr B did not suggest a sinister cause for the child’s redness in April 2008. She simply prescribed a cream to treat the inflammation. On 30 September 2008 Dr Z recommended a paediatric assessment because the child’s symptoms were consistent with a common childhood condition of vulvo-vaginitis. There was thus no evidence that a medical practitioner placed any sinister connotation on the child’s redness and soreness. In October 2008 the father reported to the mother’s solicitor that she told him that the redness and pain was due to an infection which the child picked up from the toilets at her preschool.
The mother made a notification of sexual abuse by the father to DOCS on 11 September 2008. From that point, the child’s complaints escalated and were made to a variety of people in the mother’s circle. Significantly, these statements continued after the child’s time with her father occurred only under the supervision of Ms W.
I find it impossible to believe that the father touched the child inappropriately under the supervision of a professional in that role. Ms W said she observed nothing untoward whatsoever and this evidence was unchallenged.
Of course, it is possible that the child referred to past abuse when she made complaints during supervised time. I am of the view that it is much more likely that she is regularly reminded of her complaints of sexual abuse by the mother, her partner and probably the maternal grandmother.
The mother and her partner praise the child when she complains of sexual abuse by the father. For example, the mother said: “…You are so brave in talking to us and we are so proud of you”. Mr C said: “You are a clever girl and we are very proud of you”.
Dr Q was unconvinced that sexual abuse had occurred, after viewing the JIRT interview of the child. She noted that the child was extremely affectionate toward her father and showed no anxieties when she observed them together. She acknowledged that this interaction does not necessarily exclude the possibility of sexual abuse. She observed, however, that there was no clinical evidence that sexual abuse has taken place.
The father emphatically denied that he sexually abused the child. He agreed that he applied cream to her genital area in 2008. It could well have been that he inadvertently hurt her, as she suffered from inflammations and he had little experience in cleaning her or applying cream.
As noted, the child led a very disrupted life between late 2006 and the time when the allegations first arose in 2008. It would be surprising if she did not display unsettled behaviour during this period.
It is thus my assessment that there is an innocent explanation for the child’s genital redness and pain and for her disturbed behaviour. I consider it likely that she has been encouraged to continue to make complaints of sexual abuse by her father because of positive reinforcement by the mother and Mr C. The father strongly denied any sexual abuse but agreed that he had touched the child in the genital region for appropriate, indeed necessary, reasons. There has been no opportunity for sexual abuse since December 2008. For all of these reasons I am satisfied to the requisite standard, and I find, that the father did not sexually abuse the child and that there is no unacceptable risk that he will do so in future.
I find also, to the requisite standard, that no other person sexually abused the child. I am satisfied, specifically, that Mr C did not do so.

The Effect of the Father’s Brain Injury on his Behaviour

Dr Q was much more troubled about the impact of the father’s brain injury on his behaviour than the possibility of sexual abuse. This concern led her to recommend supervision of the child’s time with him.
As noted, the father suffered a serious frontal lobe injury at the age of 13 or 14. In 2003 he was assessed by a clinical psychologist, Dr T, and a psychiatrist, Dr J, when he faced two charges of obtaining money by deception.
Dr T prepared a report dated 8 July 2003, in which she stated:
“The overall impression is of a person who suffers from major depression with significantly elevated anxiety. He experiences significant somatic symptoms such as headaches, pain and gastro-intestinal disturbance. He is excessively vigilant and suffers from feelings of anxious insecurity. His relationships with others are strained due to him experiencing frustration and irritability with them. His personality indicates borderline features such as having thoughts of self-harm and suicide and impaired interpersonal relationships.
[Mr McFein] has sustained a serious head injury at age 14 and this has resulted in deterioration of a number of areas of intellectual functioning including capacity to maintain complex attention, visual short-term memory skill, capacity to deduce elements missing in pictures, capacity to reason in an abstract fashion, capacity to comprehend social situations presenting in a non-verbal way, capacity to carry out mental arithmetic skill and processing speed. His verbal functioning is generally intact and some facets of this functioning are in the superior range eg knowledge of word meanings. His overall verbal functioning is in the superior range and non-verbal function is in the average range.
His emotional and personality functioning are significantly impaired. He is suffering from major depression with suicidal ideation. He has impaired relationships with others and is quite self-critical and generally fearful of loss. To his credit, however, he has persevered with his formal education although this must have been most difficult at times. He has an impaired ability to read social cues, which are not explicit, which would significantly impede his capacity to predict cause and effect relationships. In summary he is suffering from major depression and borderline personality disorder.
The deterioration in his cognitive functioning would impair his ability to make appropriate social judgments and to reason his way through abstract situations. His cognitive deficits have most likely been a significant factor in him not exercising sensible judgments in the financial dealings, which led to him being charged. Furthermore, his personality profile indicates various features such as depression, anxiety and impaired interpersonal relationships and these features may also have played some part in him not exercising appropriate judgment in these situations. He is a poor judge of character and will fixate on an aspect of a situation rather than see the broad picture. This limits him from using a more insightful and appropriate strategy.”
Dr J prepared a report dated 19 July 2003, in which he stated:
“[Mr McFein’s] frontal lobe impairment can explain his behaviour during this episode and also many of his behaviours over the years.
The injuries have led to memory impairment, poor planning, poor judgment, poor self-awareness, poor emotional control, concrete thinking and personal difficulties. His poor self-esteem has led to depression. His naivety has led to difficulty in personal interactions. His judgment about financial matters appears also to have been very poor.
The explanation as to how Mr [McFein] has obtained a number of university degrees is that they have all been obtained under ideal circumstances, where he has been given special consideration to sit his exams for longer periods of time, been able to hand in work almost at his leisure and it appears he was probably given special consideration for the content of his work.”
Dr T prepared an updating report dated 17 July 2009, in which she stated:
“It would appear from today’s testing that Mr [McFein’s] performance has improved significantly from that of 2003. This factor is in a large part due to his tenacity and willingness to persist both with his education and job and employment history which from his report has been fairly consistent in the last number of years. Given the fact that he has been a victim of a frontal head injury, there may be times when his executive function is not as precise and efficient as it would be in a normal person of his age which may well account for his tendency to carefully check his work and may also account for his long hours at his job [in] matters which require attention to detail. Although at present he appears emotionally restricted, there is nothing specific in the data of today’s testing that would suggest he should not be allowed unsupervised access to his daughter….I have only been associated with this client on two occasions and undoubtedly Dr [Q’s] family report and specifically the evaluation of the daughter will be most useful in the determination and outcome of his case.”
In cross-examination Dr T said, inter alia:
“In 2009 he was much more able to deal with emotional material.
An example [of the impairment of his emotional and personality functioning] is him making decisions and providing information without thinking through the wider implications.
It is about naivety, not seeing the cause and effect.
He suffers from a lot of anxiety, he has a lot of anxiety about authority and evaluation. If he was hospitalised and experienced himself as suicidally depressed and did not disclose that to me, I would be concerned.
I have no hesitation in saying that in 2009 he was anxious, fearful and I would expect periods of depression, difficulties at times with social interactions especially in periods of stress.
I agree that his presenting to [the] Hospital and Dr [A] shows a degree of insight into his condition and a willingness to get help.
I think he has found a place for himself where he likes to stay in his comfort zone, where he does not have to make a lot of complex judgments about social cues.”
It should be noted that there was no evidence that the father was “hospitalised and experienced himself as suicidally depressed”. He attended Hospital on 6 October 2008, complaining of feeling depressed, and was assessed as a low suicide risk. He attended the hospital again on 12 October 2008 and was provided with medication and advice in relation to his depression.
Dr F assessed the father and prepared a report dated 29 January 2010. He stated inter alia:
“His effective verbal intellectual development had progressed normally after his recovery and he would now be considered to fall into the superior range (IQ 120-130). The type of damage that he suffered, as confirmed by radiology, would require him to work rigidly in order to master what was required by the educational syllabus. His ability to do this effectively, and to obtain a graduate status, implies that, for his brain, verbal processors are located in the right hemisphere, whereas for most subjects, it is the left hemisphere that is dominant for verbal processing. This would explain why, in the test results, the more verbal tasks were done efficiently, whereas those tests that required ‘mental manipulation’ in working memory….were far less efficiently processed. Thus, his non-verbal rating would be much lower, falling within the average range (IQ 90-110). In my opinion this is a significant IQ discrepancy.
Tests of concentration and attention reveal no deficits whatsoever, and these are most commonly rendered less efficient by frontal lobe damage. However, consistent with the result in the non-verbal measure, he was less flexible in the face of unanticipated variability, and more likely to prefer to function in a routine and familiar modes (the technical term is ‘rigidity’).
The implications of these deficits for normal social functioning should be seen in social interaction, namely more emphasis on social isolation (introversion rather than extraversion). They also imply that he would place a high premium on self control. The control of mood and behaviour is certainly a frontal lobe process, and I have emphasised that he has ‘rigid’ qualities that would take the form of behaviour over ‘control’ in social interaction, using intact frontal processes.
However, under the stressors normally present in domestic cohabitation, these control processes may become compromised. Thus, a child may be described by his parents as ‘a saint when in public but a devil at home’.
In terms of personality adjustment, the result of the psychological screening inventory is consistent with a male adult who is well adjusted to demands of social propriety. Nothing in his patterns of response implied that he was unduly defensive, and there was no tendency to bias his responses in a favourable direction. Personal, clinical observations, and the objective test process, showed nothing that might suggest he was emotionally unstable, or prone to undesirable social behaviour. It is possible that, if sufficiently stressed or provoked by a partner, he could erupt with verbal abuse and shouting. Nothing in the history I have studied suggests that this eruption would result in physical aggression and violence, particularly against a small child.”

In her first report Dr Q made these observations:
“[The father] seems able to meet the needs of the child in all respects and he showed a notable child focus. He has a very complex developmental history in that he suffered a serious brain injury in his teenage years and demonstrable brain damage remains apparent on MRI. In light of that injury he has done remarkably well and his presentation at the moment gives little indication that he suffers any disability. It would appear that at times he has emphasised this issue and at other times, as for this assessment, has minimised it. This may suggest a somewhat manipulative approach. At assessment he presented a rather boyish, eager to please quality and possibly some naivety and seemed a little immature for a man of his years; this may reflect some continuing effects of the brain injury. Possibly this was the issue that led to his involvement in the fraud charges, or perhaps he exploited the issue of his vulnerability on that occasion as he may have done with dispensation for study.”
In cross-examination Dr Q was taken to a document which set out an agreed summary of parts of the evidence. In relation to the father’s behaviour, the document stated (without correction):
“The father gave evidence
.that the date of birth given in his application was incorrect as it was prepared in his office In Circumstances where he had provided him employer with the incorrect date and knew about the incorrect date at the time the application was sworn
.that the father used an incorrect birthdate on a number of occasions and that he has not taken steps to amend the incorrect date on his passport
.that the father told the Mormon church that he did not have a child in circumstances where [V] had been born and he was baptized into that church in 2006
.acknowledged he did not consider the potential consequences of knowingly giving false information in affidavits and other documents including sworn documents, including the social and professional/legal consequences having regard to [his profession], although he did amend the date in a subsequently filed amended application
That the father wrote a letter to a child who may or may not be his child in circumstances where no steps have been taken to clarify the paternity issue and when the man known to the child as his father had died.
.the letter was addressed to the mother and the child and the child was approximately 12 years of age
.that the father acknowledged he did not consider the psychological and emotional consequences on the child.
.the father acknowledged on occasions he went overseas including to brazil and these were occasions that he simply had to get away from everything
.the father acknowledged that he had lied to the mother about travelling to Canberra in fact travelling to brazil
.that the father had lodged caveats against his parents properties to protect what he described as his interests pursuant to a verbal agreement where the terms of the agreement were not specific
.that he was close to commencing proceedings in the district court to obtain a timetable to require his father to participate in mediation as the dispute had existed for a number of years
.that the paternal grandfather admitted that he had been grabbed by the father and that the behaviour would have been inappropriate from anyone else
.there was no affidavit filed by the fathers sister”
Dr Q made these comments about this information:
“This material tends to support a lot of concerns that the mother had.
It tends to make me more cautious about his situation.
He has been dishonest – he seems to have acknowledged that he has not told the truth.
His dishonesty impacts directly on her ability to trust him.
His failure to think through consequences is a concern.
The letter to ‘[the child mentioned above]’ is written from quite an egocentric perspective, it is all about meeting his needs, not the child’s, and shows that he does not appreciate the impact on other people.”
Ultimately, Dr Q said that she would be concerned if the child was alone with the father and favoured supervised time. She made this recommendation because of his impaired ability to think through the consequences of his decisions and behaviour but not on account of any unacceptable risk of sexual abuse.
It seems to me that the child needs to be protected from the father’s anxiety, naivety and impaired emotional and personality functioning. I mean no criticism of the father in reaching this conclusion. On the contrary, I commend him for the great efforts which he has made to overcome his injury. I also consider that the mother’s ability to trust the father has been so compromised that she needs the reassurance of supervision of the child’s time with him.
A classic example of the father’s failure to think through the consequences of his actions was his attendance at the child’s kindergarten on 15 February 2010. It was no excuse for him to say that the child asked him to go to the preschool. The principal was entitled to ask him to leave because he was not a person listed on the child’s enrolment form. He did not deal appropriately with this direction and the conflict escalated to the point where the principal called police. The whole unfortunate episode would have been avoided with some forethought on the father’s part.

The Presumption of Equal Shared Parental Responsibility

The father sought that the parties have equal shared parental responsibility for the child. The mother and the ICL proposed that she have sole parental responsibility.
I have found to the requisite standard that the father did not sexually abuse the child. These allegations thus form no basis for a finding that the presumption does not apply.
The father alleged that the mother physically abused the child by hitting her. The only evidence was the child’s statement that her mother “hurt me” during the JIRT interview. I am not prepared to make a finding that the mother physically abused the child on the strength of this statement. Accordingly, there is no basis for a finding that the presumption does not apply because of physical abuse of the child by the mother.
The mother alleged that the father became very angry and aggressive toward her during the relationship. He was not cross-examined about these allegations, which are now of some antiquity. In my view there was insufficient evidence to warrant a finding that the father has engaged in family violence.
I do not consider that there was sufficient evidence for a finding that the presumption has been rebutted because equal shared parental responsibility would not be in the child’s best interests. The parents have good reason to distrust each other, given their past lies and the allegations of sexual abuse. The mother’s case placed great emphasis on the father’s lies to her. It should be remembered, however, that she lied about the purpose of her trip to Europe in 2007 and the reason that she separated the child from her father for one year.
In my view the mother failed to establish that it would be contrary to the child’s best interests for her mother and father to have equal shared parental responsibility. The father has a great interest in and devotion to his child. He dearly wishes to play a significant role in her life. The mother, on the other hand, wishes to limit his involvement. I am inclined to accept that she has said to him several times “[Mr C] is [the child’s] stepfather and she only needs a stepfather” and “…a stepfather can replace a biological father. [The child] does not need you because she has [Mr C].”
It is true that there was a great deal of conflict between the parents during their relationship. The father admitted that his brain injury caused him to be moody and temperamental. He alleged, and I accept, that the mother is a volatile person and cultural differences contributed to their conflict.
The situation is now different, in that the parents have limited interaction with each other. I can see no reason to exclude the father from a role in major decisions about the child’s life, for example, her education. He is an educated man and would have much to offer in this and other aspects of her development. I will order that the father and mother have equal shared parental responsibility for the child.
The consequence is that I am obliged to consider whether it would be in the child’s best interests, and reasonably practical, that she spend equal time with each of her parents. If I conclude to the contrary then I am obliged to consider whether it would be in her best interests, and reasonably practicable, that she spend substantial and significant time with each of her parents. The fact that neither parent sought these orders and the ICL made no such proposal does not relieve me of this obligation. I will carry out this futile exercise after an examination of the evidence relevant to the primary and additional considerations set out in section 60CC.

The Primary and Additional Considerations

I have carefully considered all of the matters set out in section 60CC. As is usually the case, not all of these subsections are relevant to the proceedings at hand.
As noted, the father is devoted to the child and wants to play a significant role in her life. Dr Q assessed that “she is strongly and securely attached to both her mother and her father”. I have found that the father did not sexually abuse the child and that there is no unacceptable risk that he will do so.
In my view the father has much to offer the child, although the effects of his brain injury mean that care must be taken to protect her while in his care. I am entirely confident that he would not deliberately put her at any risk. My concern stems from his tendency not to think through all of the consequences of his decisions and actions, as well as his anxiety and his naivety.
Subject to that caveat, I am comfortably satisfied that the child will derive great benefit from a meaningful relationship with her father. She will benefit from the knowledge that she has a devoted and loving father who is very keen to share in her life experiences as she matures. She will also benefit from the involvement of her paternal grandparents and extended family.
I consider that the child will also benefit from an ongoing meaningful relationship with her mother. She has been her primary carer for the whole of her life. The maternal grandmother has also played a significant role to this point.
I have found that there is no need to protect the child from abuse while in the care of either her mother or her father. My assessment that there is a need to ensure her well-being when with her father should not be construed as a necessity to protect her from abuse or neglect.
The child is only 5 years old and has not expressed any clear views as to parenting arrangements. I give little weight to the mother’s evidence of her alleged expressions of a wish not to see her father, for reasons which I have already set out in my consideration of the allegations of sexual abuse.
I have referred above to Dr Q’s assessment of the nature of the child’s relationship with each of her parents. Dr Q considered that she has “a warm and affectionate” relationship with the mother’s partner and “affectionate bonds” with the paternal grandfather, the paternal aunt and the maternal grandmother’s partner. Dr Q did not observe the child with the paternal grandmother but considered it likely that she has a similar relationship with her.
The mother has demonstrated clearly in the past that she does not hesitate to put her own needs ahead of the child’s relationship with her father. She was prepared to separate her from her father for one year to pursue her relationship with her current partner. She lied to the father about the reason for the trip to Europe and took no steps to ensure that the child maintained a relationship with him during this period. The child saw her father during this period of one year only because he twice travelled to Germany. Even then the mother took it upon herself to severely limit their time together.
The mother also unilaterally suspended the child’s time with the father on 1 October 2008. The more appropriate course would have been for her to make an application to the court.
I have no similar concerns as to the father’s willingness and ability to facilitate and encourage the child’s relationship with the mother. Ultimately, he agreed that she will remain in the primary care of the mother. Dr Q was of the opinion that “…he would comply with the requirements of the court and would not seek to undermine the child’s relationship with the mother”.
The change ultimately proposed by the father would see a reintroduction of unsupervised time when the child starts school at the beginning of 2011. This change would be relatively significant for the child, in that she has spent time with her father only under the supervision of Ms W since December 2008.
The change proposed by the father would almost certainly create anxiety in the mother and her partner, which would flow on to the child. Mr C seems to be very heavily invested in the truth of the allegations of sexual abuse. Dr Q said “the stepfather is approaching the situation very warily and that conveys to the child that she is not safe with her father”. The strength of his investment was illustrated by his tears in the witness box when he said “I would not feel good about an order for unsupervised time”.
On the other hand there is a need to change the arrangement for time supervised by Ms W. She said that she does not undertake long term supervision and would continue only for “an initial period” after orders of the court.
The paternal grandparents and aunt were prepared to supervise the child’s time with the father and to give any necessary undertakings to the court. They all impressed as caring, sensible and pragmatic people who would fulfil the role of supervisor very well.
The mother opposed supervision by the paternal grandparents. She relied on the conflict over the father’s compensation money and the supposed failure of the paternal grandfather to be present at all times on the weekend of 10 September 2008, when he had promised the mother that he would “keep an eye on things”. The mother also maintained that Dr Q was not supportive of supervision by the paternal grandparents.
In fact Dr Q said “it might be very difficult for time supervised by the paternal grandfather to proceed if there is litigation with [the father]: the relationship may break down”. She made no comment about supervision by the maternal grandmother or the paternal aunt. There is no reason whatsoever to think that the paternal grandfather would fail to meet all of the requirements of a supervision order. He was not subject to this stricture on the weekend relied upon by the mother.
The paternal grandfather admitted that the father grabbed him by the shirt about six times in the last few years. He said that the father was frustrated over his handling of the compensation funds but that they had reached a solution shortly before the trial. He said that the father told him that he intends to file proceedings in the District Court and that he understood the purpose to be to ensure that the issues are finalised.
It seems to me significant that the paternal grandparents both supported the father in this litigation and offered themselves as supervisors. They are obviously loving grandparents and value their own relationship with the child. I doubt that they would allow these issues with the father to separate them from their granddaughter. There is no similar concern in relation to the paternal aunt.
The only concern about the mother’s capacity to provide for the child’s needs and her attitude to the responsibilities of parenthood is her apparent disdain for her relationship with her father. Otherwise she cares very well for the child and is obviously devoted to her. I have no reason to think, however, that she would fail to comply with orders for the child to spend time with her father.
My concerns as to the father’s capacity to provide for the child’s needs stem from the effects of his brain injury on his behaviour, to which I have already referred. In my view these limitations on his capacity can be satisfactorily addressed by supervision of the child’s time with him until she is older and more mature. The ICL proposed that supervision cease when she turns 12 years old and be suspended between her 10^th and 12^th birthdays provided that she sleeps at the home of the paternal grandparents or aunt. I see considerable merit in this proposal, although I consider that the time frames could be shortened somewhat.
I have referred already to the mother’s allegations that the father was violent toward her and the paternal grandfather. The father alleged that he saw the maternal grandmother direct violence at the mother, a contention which she denied. There are no recent allegations of violence and no apprehended violence order is currently in force.
I am satisfied that the father has taken every opportunity to fulfil his responsibilities as a parent and that he has always provided financial support for the child. My clear impression was that he dearly wished to play a more significant paternal role but was prevented from doing so by the mother.

Conclusion

I have determined that the father and mother should have equal shared parental responsibility for the child. I am thus obliged to consider whether it is in her best interests, and reasonably practicable, for her to spend equal time with each of her parents.
It is patently obvious that it is not in the child’s best interests to spend equal time with each of her parents. I have found that her time with her father needs to be supervised for the short-to-medium term. I do not know where the father will establish his home, now that he has taken up employment in western Sydney. In this vacuum, I cannot tell whether it would be reasonably practicable for her to spend equal time with each of her parents. As noted, neither parent sought orders for an equal time arrangement.
The same considerations mean that it would not be in the child’s best interests, nor reasonably practicable, for her to spend substantial and significant time with each of her parents. As noted, neither parent sought orders which could be described in these terms.
I will order that the child’s time with the father be supervised in the short to medium term. I say again that this conclusion is not based on any risk of sexual abuse. It would be in the child’s interests if the mother and her partner seek professional assistance to overcome their fears in this regard.
I am satisfied that the paternal grandparents and aunt will properly supervise the child’s time with her father. I consider that the risk of a breakdown in the grandparents’ relationship with the father is not of sufficient magnitude to disqualify them from acting in the role of supervisor. I will order that Ms W continue to supervise for 3 months or as long as she is prepared to do so.
The mother proposed that the child’s time with her father be supervised until she is 14 years old. The father sought that supervision cease at the beginning of the 2011 school year. The ICL proposed that all supervision cease when the child turns 12 years old and be suspended between the ages of 10 and 12, provided that she sleeps at the home of the paternal grandparents or aunt.
I see merit in the scheme of orders proposed by the ICL but, as noted, I consider that the timeframes could be shortened somewhat. I conclude that supervision should cease when the child turns 10 and be suspended, as proposed by the ICL, between the ages of 8 and 10 years.
A number of orders for therapy for the parents were proposed by the ICL. It is a matter for them to determine whether or not they seek professional assistance. It is for the father to decide whether he obtains the assistance of a psychiatrist. These suggestions by the ICL are valuable but I will not impose such conditions on the parents.

The ICL sought an order to restrain the mother from taking the child to sessions with Ms D for a period of 6 months, unless pursuant to a medical referral or a recommendation from staff at her childcare centre. I was unsure of the basis for this application. Ms D impressed as a well-qualified, objective professional person. It may assist her to have copies of these reasons and the reports of Dr Q. I will make orders accordingly.
The ICL sought orders for payment of his costs and the balance of Dr Q’s fees. It was ultimately submitted that the priority is Dr Q’s fees. The father has paid $9,950, using borrowed funds, and the mother $4,950 from an unknown source. The father sought an order that each party pay half of Dr Q’s total fees of $16,100. To achieve that end, the mother would need to refund to him a sum of $1,900 and pay the outstanding balance of $1,200. The mother was prepared only to pay half of the balance of $1,200.
I was not told why the father should pay 65% of Dr Q’s fees, in comparison to the mother’s 35% thereof. She works full-time. Her partner has a full-time job. I see no reason why the mother should not share equally in payment of Dr Q’s fees.

I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 December 2010.

Associate:

Date: 23 December 2010

[2010] FamCA 1229

23 December 2010

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Costs

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Procedural Fairness