McGowan & Hahn
[2024] FedCFamC1F 418
•24 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McGowan & Hahn [2024] FedCFamC1F 418
File number: PAC 2445 of 2018 Judgment of: CHRISTIE J Date of judgment: 24 June 2024 Catchwords: FAMILY LAW – PARENTING – Where the child is in the primary care of the mother – Where the child’s time with the father has been supervised arising out of allegations by the mother that the father has engaged in sexual abuse of the child – Observations of sexualised behaviour by the child – No evidence supporting a finding that the father acted in a manner consistent with sexual impropriety in his time with the child in the period up to the imposition of supervised time, or at all – No unacceptable risk of future harm to the child in the unsupervised care of the father – Where the mother maintains her belief that conduct by the father is responsible for the child’s sexualised behaviour – Where the mother’s belief impacts on her functioning and interactions with the father – Where the mother has been continuously and publicly negative to and about the father and the paternal family such that it has obscured her capacity to understand and demonstrate the importance of that relationship to the child – Where the mother repeatedly has adversarial interactions with services and professionals and agencies such that it raises concerns of the child being exposed to same – Orders for a period of no time between the child and mother to assist with the transition to the father’s care – Where the supervision of time between the child and the mother is necessary to ensure that the child is protected from psychological harm. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 65DAA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.06
Cases cited: De Roma & De Roma (2013) 49 Fam LR 226
Isles & Nelissen (2022) FLC 94-092
L v T (1999) FLC 92-875
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Division: Division 1 First Instance Number of paragraphs: 336 Date of last submission: 11 June 2024 Date of hearing: 4–6 March, 24 May, 6–7 June 2024 Place: Sydney Counsel for the Applicant: Mr Finch Solicitor for the Applicant: Aaron Legal Solicitors Counsel for the Respondent: Ms Coulton (direct brief) Counsel for the Independent Children's Lawyer: Dr McConaghy Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 2445 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR McGOWAN
Applicant
AND: MS HAHN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for X born 2017.
2.X live with the father.
3.X spend time with the mother as agreed and failing agreement as follows:
(a)At the expiration of 2 months from the date of these orders, supervised at least until X turns 12 (and thereafter at the election of the father), on one occasion each fortnight, for up to three hours, supervised by an agency engaged by the father (“the agency”) on dates and times provided to the parties by the agency with the costs to be shared between the parties equally;
(b)On the Sunday of Mother’s Day each year at times which are nominated by the agency;
(c)At such other times as the father agrees in writing.
4.Pursuant to s 68B of the Family Law Act 1975 the mother not contact X or approach X, X’s school, X’s residence except with the consent in writing of the father.
5.Pursuant to s 68B of the Family Law Act 1975 each party is restrained from:-
(a)Making any negative, critical, belittling or derogatory comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of X.
(b)Doing or saying anything to and/or within the presence or hearing range of X that could make her feel fearful of the other parent or to feel unsafe in the company or care of the other parent and each party will each use their best endeavours to ensure that no other person does so.
6.Within 21 days of the date of these orders, the father is to engage X with a child psychologist.
7.The father is to facilitate X’s attendance on the child psychologist in accordance with the child psychologist’s recommendations.
8.For the purpose of Order 6, the father is permitted to provide to the child psychologist a copy of the following:
(a)The Reports of Dr Q dated 15 December 2020 and 15 December 2023;
(b)These Final Orders made; and
(c)A copy of the reasons for judgment delivered in these proceedings.
9.The mother shall notify the father of an email address for communication within 7 days.
10.In the event of a medical emergency, the father is to notify the mother of what has occurred and X’s prognosis and treatment as soon as practicable and within 24 hours of such emergency occurring by email to the address provided in order 9.
11.The father is to provide the mother with X’s school reports within 7 days of receipt of same by email to the address provided in order 9.
12.The father is to provide the mother with any medical report he receives in respect of medical treatment provided for X by a specialist medical practitioner by email to the address provided in order 9.
13.Pursuant to s 65Y of the Family Law Act 1975, the father is authorised to remove X (female) born 2017 from the Commonwealth of Australia and only to countries which are a signatory to the Hague Convention, at such times as are nominated by the father.
14.The father is required to provide the mother not less than 45 days written notice of his intention to travel with X, including a written itinerary of travel sufficient to identify the place or places that will be visited and a copy of return travel documents.
15.Pursuant to s 7 and s 11 of the Australian Passports Act 2005 the father is authorised and permitted to apply for and receive an Australian passport for X born 2017 notwithstanding the consent of the mother has not been obtained.
16.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 IT IS REQUESTED that the Australian Passport Office of the Department of Foreign Affairs and Trade do all acts and things to issue an Australian Passport in the name of X born 2017.
17.Within 30 days the mother pay to the father the sum of $4,400.
18.Within 30 days the mother to pay the ICL costs in the sum of $9,625.
19.Within 30 days the father to pay the ICL costs in the sum of $9,625.
20.Pursuant to Sections 65DA(2) and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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).
Part XIVB 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 a pseudonym McGowan & Hahn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is a case about parenting arrangements for X, aged 7.
The applicant father seeks orders for sole parental responsibility and for X to live with him and (following a period of no contact) spend time with the mother supervised on certain conditions.
The respondent mother seeks orders for sole parental responsibility and for X to live with her and spend supervised time with the father indefinitely.
There is an Independent Children’s Lawyer (“ICL”). The ICL seeks orders that the father have sole parental responsibility for X, that X live with the father and that X spend supervised time with the mother after a period of no time on six occasions per year for a period of three hours on each occasion.
This is a case about whether X faces an unacceptable risk of harm in the care of one or other of her parents.
It is plain that the conflict between the parents precludes any conclusion that they should share (equally or otherwise) parental responsibility for X and accordingly each seeks an order in his or her favour. The single expert, Dr Q, recommended that sole parental responsibility should be given to the parent with whom X lives. I agree.
THE LAW
In a parenting case the orders must be ones which are in the best interests of the subject child. To determine what orders will be in her best interests, I must have regard to the relevant considerations in the Family Law Act 1975 (Cth) (“the Act”) giving primacy to protection of the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The final hearing in this matter commenced prior to 6 May 2024 so the statutory matters which I must consider are those which existed as at 4 March 2024.
This is a case about assessment of past events and their relevance to assessment of future risk and accordingly the matters discussed in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) have application.
CONSIDERATION
The mother’s evidence, both in its content and the manner in which it was delivered, are worthy of discussion in these reasons for judgment. The mother’s answers to questions in cross‑examination by counsel and where I sought clarification were detailed and often non‑responsive. Repeatedly, she offered information which had not been sought.
The mother disavowed statements under her own hand on a number of different occasions. She also suggested that subpoenaed documents had been altered (but not necessarily by a party to proceedings). On a separate occasion when asked about an email which she had written to a police officer, Ms R, a copy of which had been produced on subpoena, the mother said “[Ms R] has altered that email, I would presume, which is another issue with New South Wales Police” (Transcript 6 March 2024, p.170 lines 42–44).
As regards the documents which were purportedly documents prepared by the mother, she often disavowed their content on the basis of the language used. For example, a submission which had been filed in the proceedings on her behalf was raised with her because it contained a representation to the effect that the child having unsupervised time with the father may be appropriate at a later age. The document filed 9 February 2021 says:
The mother’s reasoning for this was once the child was old enough to understand inappropriate touching, she could communicate without any misunderstandings, and the father would be less inclined to engage in inappropriateness.
The mother said it was not her “vernacular” (Transcript 6 March 2024, p.174 line 20). In due course (after the filed copy was retrieved, which, on its face, was authored solely by the mother) she accepted that the document may have been filed on her behalf and so while the language was not hers, the content represented her position (at that time).
A further example was her disavowing an affidavit which she had sworn and filed on 19 February 2019 which says at the footer of the document that it was prepared by her. Counsel for the father sought to raise an inconsistency between the mother saying under cross‑examination that the child did not have a urinary tract infection (“UTI”) and the affidavit which says, “I also told [the father] that [X] had a urinary tract infection”. The mother said in cross-examination that she “didn’t write that” (Transcript 6 March 2024, p.210 line 30) and:
... I wouldn’t have those gaps in that white text. I’m a professional
…
I would never submit anything with that space. That white space is toxic.
…
I don’t know where that has come from, but that – those white spaces in there are not something I would have produced.
(Transcript 6 March 2024, p.210 lines 20–35)
The mother was asked about documents returned under subpoena, being notes of sessions between the mother and the child psychologist, Dr G. The records of Dr G indicated that the mother had shown Dr G a video of a disclosure made by the child. Counsel for the father asked the mother about this. Her response was to say “[i]t looks like these records have been changed” and later, “I just don’t have any faith in the records due to [the father] providing the date of an SMS being changed” (Transcript 6 June 2024, p.184 lines 21–22, 40–42). Dr G’s notes were handwritten. It did not appear that they had been altered.
The video shown to Dr G was never discovered despite the father’s requests. The mother said she had given it to the police. It was not produced on subpoena. It is not clear whether there was more than one video or more than one occasion on which X was filmed.
Later, during cross-examination on the same topic (Dr G’s notes), I directed the witness to consider the note made by Dr G which reads, “I suspect he has been interfering with her since Feb[ruary] 2018.” The mother said in response, “[n]ot my vernacular, your Honour” (Transcript 6 March 2024, p.189 line 41).
The mother also denied sending messages which the records strongly suggested had been sent by her. An example was counsel for the father put to her that she had sent the father a text message referring to a case in New South Wales regarding allegations of familial sexual abuse:
You should watch the documentary on how luck [sic] you didn’t get the investigator that decided to interview two young boys 27 times over 3 years in which the mother and the officers themselves clearly “coached” the children: [YouTube hyperlink]
The above text message was annexed as an exhibit to the father’s affidavit.
In a similar vein, she denied sending a text message referring to a documentary about Michael Jackson which appeared to have been sent from her telephone number on 10 March 2019 but agreed she had sent a link to a documentary “I, Pedophile” which appears to have been sent in about July 2019.
In support of the mother’s belief that records had been altered, she pointed to the father having provided, in his evidence, a text message from the mother to the paternal grandmother which bore the wrong date. The text message was sent on 20 February 2019 but read 30 November 2018. The father produced the analogue phone belonging to his mother which also showed the incorrect date. There is no evidence to support the conclusion that the father had altered the date of the message and it was common ground that it was sent on 20 February 2019.
At one point during the mother’s cross-examination, counsel for the father was asking questions about a subpoena which had issued to Roads and Maritime Services relating to the mother’s residential address in circumstances where the mother had told the Court she lived in Suburb N and did not own a car. The following exchange took place:
[COUNSEL FOR THE FATHER]: So now you can see the relevance of the subpoena issued to the RMS?
[THE MOTHER]: Not particularly. It’s a level of detail that I would have thought a DNA test would have been more forensically important to this case or, you know, the paternity of the father.
(Transcript 6 March 2024, p.253 lines 34–37)
There is no evidence that X’s paternity was or has ever been in issue. The mother’s response was bewildering.
The effect of the mother’s manner and her responses was that it was difficult to determine whether she was dissembling or whether she genuinely believed that documents had been altered. I am prepared to accept that notes will contain occasional errors. The difficulty in this case was that the notes which the mother claimed were wrong or altered were all documents capable of assisting the father’s case and there was no evidence to support those records having been altered by him or on his behalf. The overall effect, given the number of times on which this occurred, was that I accept the documentary record as more accurate than the mother’s account and, where there is a difference, I prefer the account in the documents. In addition, because the mother repeatedly and with conviction denied she had made representations even in the face of unambiguous texts, emails or file notes, it inevitably impacted on the assessment of the evidence which she gave about key events in dispute.
The manner in which the father gave his evidence in cross-examination was unremarkable.
Having reflected on the manner in which the evidence was given, I will now turn to the relevant statutory considerations.
Parental responsibility
As foreshadowed above, I do not propose to make an order for equal shared parental responsibility because the evidence establishes that same would not be in X’s best interests. It follows that I am not obliged to consider either an equal time or a substantial and significant time regime (by operation of s 65DAA of the Act). Accordingly, my assessment as to the parenting arrangements for X will be informed by the relevant matters in s 60CC(2) and s 60CC(3) of the Act.
Primary considerations
Section 60CC(2A) of the Act requires me to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence than I give to the benefit to the child of having a meaningful relationship with both of the child’s parents.
The single expert evidence dealt with the potential benefits to X of being able to enjoy a meaningful relationship with both parents, noting a caution that this may not be possible unless the current circumstances change.
The evidence in the case identified both potential physical and psychological risks and the task I must undertake is to make findings about whether or not the evidence establishes a risk to X in the care of one or other of her parents.
In order to assess whether there is an unacceptable risk to X in the care of the father, I need to understand the specific allegations set out in the mother’s affidavit material and the evidence upon which she relies.
I understand that she contends that the following factors place X at risk:
(a)Domestic violence perpetrated by the father towards her during and after the parties’ relationship, including coercion and control and acts of physical violence;
(b)Drug and alcohol misuse during and immediately after the parties’ relationship; and
(c)Sexual impropriety by the father (and paternal grandfather) towards X.
Having regard to the approach set out by the Full Court in Isles & Nelissen, I am not required to make a positive finding on the balance of probabilities that abuse has occurred in order to conclude at some point in my risk assessment that the possibility of future harm to the child poses an unacceptable risk. However, relevant past factual findings made on the balance of probabilities inform the predictive exercise I am to undertake in assessing whether there is a future unacceptable risk of harm.
Allegations of drug use
The father says he used an illicit substance on no more than a half a dozen occasions when he was in his twenties. There was no evidence before the Court capable of supporting the conclusion that the father is presently using drugs.
The father works in the transport industry and of consequence is subject to random drug and alcohol testing by his employer.
In May 2018 the father provided the mother with three urinalysis test results which were negative for illicit substances. I accept that they may have been undertaken at times elected by the father.
An order was made on 31 August 2018 that the father undertake a hair follicle test. It did not occur until 22 October 2018. When it did occur, it returned a negative result for drugs. There was a delay in the father undertaking the hair follicle test and, while the mother says that this is consistent with the father having drugs in his system at that time, it is not the only explanation. In circumstances where the test was negative and there is no contemporaneous material indicating this as an area of concern, I am not able to attach any weight to the mother’s assertions that other people have informed her the father may have taken illicit substances. If this was a key issue in the proceedings from the mother’s perspective, then it was necessary for her to adduce admissible evidence. I am satisfied that this issue does not pose a risk to X.
Allegations of family violence
Neither party suggested that the other party posed a future risk of physical abuse to X (save in respect of alleged sexual abuse which is discussed separately). In a Notice of Risk filed 6 May 2020, the father said that X was “at risk of further physical abuse”. In submissions filed on her behalf, counsel who appeared for the mother submitted that the Notice of Risk was false and adversely impacts on the father’s credit. I do not accept that submission. In the Notice of Risk the father said that X had informed him (when she was very young) that the mother had smacked her hand causing injury. This allegation was not in the father’s trial affidavit and I am not being asked by him to make a finding about this incident or future risk of physical abuse by the mother. I am satisfied that it is the father’s position some years later that the mother does not pose a physical risk to X.
The mother makes a number of assertions of physical violence, verbal abuse and, in addition, describes a series of other incidents which she says, if accepted by the Court, would demonstrate a pattern of coercion and control by the father.
I accept that the relationship between the parties, which ended in the second half of 2017, was a difficult one for both of them.
I accept that a number of incidents occurred between the parties which one or the other of them submit meet the definition of family violence in the Act. The focus of s 4AB is on whether violent, threatening or other behaviour coerces or controls or causes fear.
The mother gave evidence in her affidavit at [70] that in about early July 2017, “during the evening, the father threw a naan bread into [her] glass cake dome” and “smashed the dome in front of [X]” and that separately in July 2017 the father threatened to smash her work computer in front of X. The email from the maternal grandmother to her lecturer (referred to later in these reasons) echoes the latter complaint but confirmed the father had not been physically violent. The father did not directly address these specific allegations nor was he cross-examined in respect of them. Despite some reservations outlined above about accepting the mother’s evidence, I find that this evidence was unchallenged and these incidents constitute family violence.
In July 2018 the mother describes, in her affidavit, the father forcing his way into her premises. She provides no specifics and no questions were asked of the father. She does not say that on that day when the father attended to collect X the mother took X out the car and said time could not occur. The father says he endeavoured to return X’s pram. The father says the mother took his phone and began to scroll through it. I cannot find that this incident meets the definition of family violence.
The mother also alleged that the father was tailgating her en route to a changeover. The father says they were both driving from the west of Sydney (the father from Suburb A, the mother from Suburb B) to changeover in Suburb N. The father requested that they effect changeover sooner but that did not occur and both drove to Suburb N. The father denied tailgating. I am unable to make a finding that tailgating occurred on this occasion or at all.
In 2018 the mother says she felt “a karate-chop force” to her shoulder blades and that the father forcibly removed the mother’s phone and that of the maternal grandmother, who was recording. The father accepted he took the phones. He denied the karate chop.
The father says that what occurred was:
55.[In] August 2018, as had been previously agreed with [Ms Hahn], I arrived at her [Suburb N] residence at 9.00 am to pick [X] up for the day. I was met by [Ms Hahn], [X] and [Ms Hahn’s] mother who began filming me on her mobile phone, pushing it very close to my face and body. Whilst I was trying to put [X] into my car, [Ms Hahn] and her mother stood no more than a metre away, [Ms Hahn] began calling out to [X] and [Ms Hahn’s] mother said ‘[X] needs to go to playgroup at 9:30 am.’ I replied ‘no we agreed this was [X’s] time with me·. [Ms Hahn] then entered my car and took my phone and began scrolling through my messages whilst walking away. I approached [Ms Hahn] and asked for my phone back before taking her phone from her hand and asking for mine back in return. I retrieved my phone and in the heat of the moment I tossed [Ms Hahn’s] phone in a front yard in part to get some personal space. [Ms Hahn’s] mother continued to film as [Ms Hahn] ran at [X] and I before snatching [X] from my arms. I took [Ms Hahn’s] mothers phone from her hand as she filmed close to my face and drove to [Suburb N] police station to return the phone and report the incident...
(As per the original)
The police declined to pursue any charges arising out of the incident. When they attended, their notes record the mother was screaming at the police and that the maternal grandmother tried to calm the mother. The police recorded that the mother “seemed to have some form of mental health or anger issues by the way she was yelling and screaming at Police.” I am unable to make a finding that the conduct of either party on this occasion, as unfortunate as it was, should be termed “family violence” according to the definition in the Act.
Both parties agree that an incident occurred in October 2018 following changeover. The father arrived at the designated changeover location that day, Suburb B supermarket, at 9.00 am. The mother arrived at 9.40 am. The mother gave X to the father and X and the father went into the supermarket. Inexplicably, when the father and X exited the supermarket, the mother was still in the car park. Also present in the carpark were the maternal grandmother and maternal aunt.
The mother did not provide any evidence to explain her remaining at the location or the attendance of her family in her affidavit. What she did say was:
166.…during changeover, [Mr McGowan] filmed me with his mobile phone. I took it from him to see what he had filmed. [Mr McGowan] gave me a Chinese burn on my lower arm, hit me numerous times on my shoulder and grabbed be on the upper arm…
The video was in evidence and played in open court. It can immediately be observed that the mother’s description that the father was filming changeover was inaccurate. Changeover had occurred. The mother approached the father during his time with X.
The video opens with footage of the father’s feet in sneakers as he walks through the automatic doors to exit the supermarket. His voice can be heard fairly soon thereafter addressing the mother by name. It is plain that she is waiting outside the door. It is not visible on the video but it is common ground the father is carrying X for the entirety of this interaction. He says, “[Ms Hahn], leave me alone.”
The father’s request does not dissuade the mother who proposes feeding the child at 10.00 am (it is 9.50 am, about 10 minutes after the changeover has occurred). The father repeats “[Ms Hahn] just leave us alone, please.” Undeterred, the mother says, “What happened to Wednesday when you were wanting a reconciliation? [pause] Was it a strategy? I know you’re recording”. The father says for the third time, “Can you just leave us alone, please.” The mother continues, “Yeah but [Mr McGowan] remember when you said on Wednesday you wanted to be a family again?”, to which the father says, “Can you just leave us alone please?” The mother replies, “I’ve just spoken to my barrister”. If that is accurate, she phoned her barrister in the ten minutes the father was in Woolworths.
As the father is again repeating “Can you please get away from the car”, the mother is simultaneously saying “Since you won’t let [X]…” – the mother stops as she reaches over and takes the father’s mobile phone from him. There is footage of the sky and the ground and she can be heard running and saying “bye” and then the footage stops.
The mother’s attitude and tone during this encounter changes in the short time frame from seemingly seeking to pursue what she says were the father’s overtures for a reunion to references to her legal advice and finally taking his phone from his hand and running.
The mother, maternal grandmother and maternal aunt provided consistent accounts in their affidavit. This consistency undermined, rather than enhanced, the weight that could be attached to the evidence since the accounts were also demonstrated in cross-examination to be consistently false in some key respects. For example, the video clearly depicts the father wearing sneakers, not thongs. The mother repeatedly evaded the simple proposition from counsel for the father and then myself that the father could be seen in the video to be wearing sneakers.
In contrast, the father’s account was that when he exited the supermarket the mother followed him and X to his car and “would not leave and stood in my personal space despite my repeated requests of ‘please leave us alone’”. He says she then “snatched” his phone as he was endeavouring to place X in her car seat and ran away causing the father to have to follow her with X if he wished to retrieve his phone and the bank and ID cards that were contained with the phone.
The mother indicated in her evidence that she was injured by the father. She did not seek medical assistance until much later that day. She presented to the triage at J Hospital about 10.30 pm and then 8.00 am the following day. The notes set out injuries which seem consistent with a struggle while the father sought to retrieve his phone.
The mother was cross-examined about the events that day and the video footage taken by the father was in evidence.
There was no evidence proffered by the mother to explain her actions. The video footage was consistent with the father’s account. The mother’s actions were provocative and lacked child focus. The mother’s account during cross-examination about her motivation in taking the father’s mobile phone was materially different from her affidavit evidence. She claimed she had taken the father’s phone because she was “looking for a text from his drug dealer” and that a reason she may have been waiting outside the supermarket was to retrieve the phone number of the father’s drug dealer (Transcript 24 May 2024, p.281 lines 24–25 and p.283 lines 1–6). Her affidavit had read, “[Mr McGowan] filmed me with his mobile. I took it from him to see what he had filmed.”
This inconsistency in the evidence is concerning because it undermines the weight I can attach to evidence which the mother gave on oath. I was left with the impression, as discussed elsewhere in these reasons, that the mother’s answer was designed to make the father look bad. This was particularly the case since it was out of step with her affidavit evidence on oath and the impression created by the video evidence. I cannot, on the evidence, find that the father’s actions on that day were any more than an attempt to retrieve his phone which the mother had taken from him. A physical altercation occurred precipitated by the mother taking the father’s phone and continued by his attempts to retrieve it. I cannot find that it was an “assault” and note the police did not pursue this incident as an assault either. It is possible that the mother sustained the injuries she later reported during the father’s attempt to retrieve his phone. I accept the submission of counsel for the mother that it may have been wiser not to chase the mother.
The incident does support orders which ensure that the parents do not have occasion to come into physical proximity, for example to effect changeover, and is relevant to my determination about parental responsibility.
The evidence which the mother gave to support the submission that the father’s conduct was coercive and controlling related to a number of separate issues: whether he prevented others bathing X as an infant, whether he asked to be added as a co-owner of her property, whether he requested the couple have sexual intercourse too soon after X’s birth and whether he required the mother to undertake domestic tasks and expressed a view that she should not work outside the home. In respect of each of these topics, the father denied the conduct attributed to him and there was no collateral information to allow me to make a finding. It follows that I cannot, on the evidence before the Court, be satisfied that the father behaved in a manner which was coercive and/or controlling.
Both parties alleged the other had been verbally abusive to one another and members of their respective extended families.
I discuss later in the reasons the manner in which the mother has addressed the father and I accept it is abusive.
The maternal grandmother gave evidence that the father had said to her (in X’s presence), “[s]top fucking up my daughter, you bitch”. The father did not address this issue directly and the maternal grandmother was not challenged about this evidence and I accept it occurred.
The mother otherwise gave evidence that the father had called her names, which he denied. I accept that the parties argued and the father’s recall of the parties’ interactions when the parties argued on an unspecified day in May 2017 may not be clear to him as he was vomiting and the mother says he was intoxicated. I do have difficulty in accepting that the father was as verbally abusive as the mother asserts as it was inconsistent with his presentation throughout the proceedings, in recordings taken by either party or in his interactions with the Department of Communities and Justice (“DCJ”) and police. The mother did not annex to her affidavit abusive emails or text messages or exhibit or tender abusive recordings. I cannot find, to the requisite standard, that his comments to her were abuse.
The mother made quite serious allegations about the father to the effect that he may be intent on “spousal revenge” (Transcript 24 May 2024, p.302 lines 17–34). In context it appeared that she intended to convey that he may hurt her (or their child) to obtain revenge against her. In the mother’s letter to the NSW Police Commissioner dated late 2020 she said:
As part of my tendency evidence as Respondent Mother in family Law Proceedings (PAC2445-2018), I will seek Briefs of Evidence from NSW Police in relation to SIX of their court matters with a date range of 1997 until 2020, including Coroners’ Reports.
(As per the original)
The mother resiled from the assertion that the father may seek spousal revenge in her evidence on 24 May 2024. She believed this was no longer likely because he has a new family and is under “police surveillance”. There was no evidence to support the mother’s allegation that the father’s conduct was a form of “spousal revenge”.
Having reviewed the parties’ evidence and submissions about family violence, I conclude that some of my findings set out above support a conclusion that isolated examples of the father’s conduct could have induced fear in the mother and vice versa. I do not find that the evidence supports a conclusion that their conduct has been coercive and/or controlling. What is less clear is whether those individual incidents pose a future risk for X in the care of one or other of her parents. The conclusion which I have reached upon review of all the material is that, provided the parents are not required to effect face to face changeover, the incidents which occurred do not suggest that X would be at future risk as a consequence of family violence having regard to the orders I propose to make.
Sexual impropriety
The concerns of the mother, as expressed to the single expert in interview on 13 February 2020, are a useful summary of the mother’s allegations of sexual impropriety by the father towards X. The single expert recorded in her report dated 15 December 2020, being the first of two reports prepared by the single expert in these proceedings:
53.…[The mother] alleged that from December 2018, on questioning [X] about what she did with her father and where he touched her, [X] responded by pointing to her vaginal area and associated those actions with [Mr McGowan] and [Mr McGowan] (snr). She also asserted that [X] had put her fingers in her vagina and licked them and made associations with her father. She claimed that this behaviour was happening up to six times per day. She also asserted [X] had put objects that are phallic in shape such as cheese sticks, broom handles, toilet rolls and play dough into her vagina. She alleged [X] had observed her father’s erect penis which she has compared to the worm in one of her story books. She referred to [X] licking under her arm pit when she was feeding her. She also mentioned that [X] simulated sexualised behaviour when pointing to a cupboard. [Ms Hahn] stated that a child’s behaviour is reinforced when adults draw attention to it, so she and her family tried to ignore [X’s] behaviours. [Ms Hahn] stated that it concerned her that [Mr McGowan] had denied any inappropriate behaviour and had failed to provide adequate explanations, for example, of how [X] may have seen his penis.
No party suggests that the father has been observed behaving in a sexually inappropriate fashion with the child. This is perhaps unsurprising. However, there is no report by a supervised contact worker which records the child behaving in the manner described by the mother in the father’s presence (or otherwise). This is significant since the child commenced supervised time in March 2019. If the conduct of the child as described by the mother in December 2018–February 2019 (and from the mother’s account, continuing) was as set out – there is no explanation for why the child did not present in the same manner during supervised time, particularly from its inception in March 2019 until the mother says the conduct had completely abated in October 2019.
The mother told the supervision agency, S Family Services, that photos of the father or talking about him triggered sexualised behaviours by X. In the same vein (as discussed below) the mother emailed the father on 13 February 2019 saying:
One of my concerns in recent days has been the triggers of [X’s] sexualised behaviour like phone calls to you or showing a photograph of you with [X]. Specifically this morning when I was driving [X] to the library and she saw a [motor vehicle] like yours and waved towards it, and touched her vagina and stated “Dada”
It is significant then that face to face time with the father commencing March 2019 did not elicit the same or similar (or any adverse) response according to the supervised contact records.
There is a dispute between the parties about the date on which the mother alleges that she became concerned about sexually inappropriate conduct by the father. The mother filed a Notice of Risk in the proceedings (or a Notice of Risk was filed on her behalf) on 11 June 2019.
In the Notice of Risk, item 2 reads in part:
In April 2018, the Mother, maternal aunt and maternal grandmother observed the child […] continually touch her genitals on three consecutive days after spending time with the father on Easter Sunday.
As referred to above, in Dr G’s notes, the psychologist made a record, which in context appears as though she was recording what the mother was saying to her (or words to the effect of what was said) “I suspect he’s been interfering with her since Feb[ruary] 2018.”
In a similar vein, it is recorded that the mother told the DCJ helpline in December 2018, “last Easter [Mr McGowan] went to his parents’ house for 4 hours with [X], and after the visit she put her fingers into her vagina. [Redacted] unsure if this was exploratory.”
The mother’s affidavit refers to an occasion on 24 February 2018 when X spent time with the father. The mother said that when she approached the father and X, she asked the father, “why is [X’s] nappy off” and observed that the child had urinated on the father’s leg. The father said he had not noticed, which the mother says she accepted because the father would wear heavy material pants for his work. Neither the nappy half off nor the urination are objectively matters which raise concern and it is difficult to understand why they were included in the affidavit except perhaps if they were a subjective cause of concern to the mother such that she viewed them as relevant to the Court’s determination.
Those pieces of evidence appear to support the conclusion that the mother was concerned about conduct on the father’s part in February–April 2018. However, at the hearing the mother went to extreme lengths to emphasise that she did not form that view until December 2018, even, as discussed above, suggesting that documents had been altered.
It is my view, having listened to all the evidence, that the mother recognised at some point that there was an inconsistency between her identification of issues in February–April 2018 and the continuation of the father’s unsupervised time such that she abandoned those earlier allegations.
On 8 June 2018 the mother sent a text message to the paternal grandparents. In part the message read, “If I find out you or your son ever interfere with my child, I will be reporting you to the police” The message is consistent with the other evidence which suggested the mother had raised potential sexual abuse allegations much earlier than December 2018.
X spent unsupervised time with the father each Wednesday, Friday and Saturday following orders made by consent on 31 August 2018.
It is important to, as far as the evidence allows, isolate the mother’s first account of the conduct which lead to her ceasing time between the X and the father in December 2018.
The mother and father had a text message exchange on 22 October 2018. The mother sent the father a text message referring to face to face phone calls between X and the father and said, “These calls were to help [X] know who you are because at the moment ‘Dada’ is any male that wears a hat, including my brother, work colleagues and sometimes yourself.”
In evidence before me there was a video dated 26 December 2018 of X. She can be heard vocalising what can be interpreted as “Dad-dad” and/or “Da-da”. It is the only intelligible noise she makes in a recording of almost two and a half minutes where the father prompts her to use other simple words such as “bye” and “water”.
The mother says that X exhibited “sexualised behaviour […] associated with ‘da-da’.” The mother says she noticed this behaviour “from about [late] 2018”.
X had spent time with the father on both Friday 14 December and Saturday 15 December 2018. The time was not supervised.
The mother’s affidavit says:
178.After the unsupervised visit with [Mr McGowan], I asked [X] when I was breastfeeding her in the car: “What did you do with Daddy today?” [X] opened her legs and patted her nappy with her hands many times and said: “Da-da”.
The mother says her sister was present at changeover and on the drive from Suburb A to Suburb B. When they stopped because X was, according to the mother, unsettled, the mother asked X the same question, “What did you do with Daddy, [X]?” The mother does not explain in her affidavit why she repeated the question. The mother says X’s response was that she “patted her vagina over her nappy repeatedly”.
It is necessary to note at this point that the mother’s evidence (and her reports to third parties) use the word “vagina” to refer generally to the external female genitals, as became clear from cross-examination.
After asking X whether she had “done a poo” and eliciting a negative response, the mother says X “then put her hand on her nappy again located at her vagina and kept tapping it with her hand”. The mother again asked X, “What did you do with Daddy” and the mother’s affidavit records, “[X] opened her legs again and patted her nappy in the vagina area multiple times.”
The version provided to the DCJ was subtly but relevantly different and the record reads:
…after FLC visitation with her father, [Mr McGowan], on […]/2018, [redacted] asked [X] what she did with her father and [X] responded by touching herself on her vulva area all through her nappy. [Redacted] asked her “Did daddy touch you?” and [X] responded by touching herself on the vagina again.
In this account, it is the adult who connects the touching of the nappy with the father.
While the mother’s affidavit does not make it explicit, it is tolerably plain that by this point the mother had interpreted X’s actions as suggesting an impropriety on the part of the father. This is clear from her repetitive questioning and from the further questioning which occurred that night.
The mother says that, in the presence of the maternal grandmother, maternal aunt and X’s mother, X, while playing in her room with her nappy off, laid down on the ground and touched her vagina and said “Da-da”. The mother’s response was to ask X consecutively where does: “Grandma”, “Mummy”, “Aunty […]”, “Uncle […]”, “touch you”. None of these four questions elicited a response from X.
The mother says that she was shocked because “[X] had never touched her vagina area in response to a question before”. The mother must be referring to the question “What did you do with Daddy?” since she does not set out any other question which promoted that response.
The question for the Court, with the benefit of both lay and expert evidence, is whether X touching her nappy over her genitals when asked what she had done with her father and saying “Da-Da” is objectively concerning.
It is not plain that the mother contacted the father on 15 December 2018.
The mother does not give any evidence that X repeated the conduct on 16–19 December 2018.
The mother says she contacted “[OO Service] information line” in late 2018 and they referred her to NSW Police and a psychologist.
In December 2018 the mother made contact with psychologist, Ms T, by telephone about “what [the mother] perceived to be distressful and sexualised behaviour”. It is not clear if the mother was talking about distress to her or distress to X.
The mother says that on 20 December 2018 X touched her nappy when the maternal uncle said, “Are you seeing Da-da tomorrow?”
The mother facilitated unsupervised time between X and the father on 21 December 2018 for three hours.
The mother then facilitated unsupervised time between X and the father on 22 December 2018 for four hours.
After X’s time with the father on 22 December 2018, the mother posed the same question she had repeated on 15 December 2018, “What did you do with Da-da today?” The mother does not record that there was any oral response but says that X, who was lying on the ground without a nappy on, touched her vagina in the presence of the mother and maternal grandmother.
In late 2018 the mother contacted Ms T, by phone. Ms T’s file note records that she informed the mother this was not an area of her expertise and that, at that stage, the mother reported to Ms T that she had “tried to find alternative explanations”. When the mother made contact with Ms T in late 2018, Ms T recorded “GP [Dr H] has diagnosed S[exual] A[ssault] and made a report to FACs.” As will be seen, this is the mother having inaccurately elevated Dr H’s expressed concerns to a diagnosis.
On 25 December 2018 the mother facilitated unsupervised time between X and the father. She understood the paternal grandparents were to be present. The mother (who was aware X had been swimming) said to X, “What did you [do] today?” The mother says that X responded by pointing down to her “private part” and saying “Da-da” and “Bop Bop”. The mother said she observed X continuing to touch her vagina. X’s actions may have been consistent with information which the mother said the father provided at the conclusion of his time, namely that X had been swimming and may need a good wash “down there”, meaning, presumably, X’s genital area.
While the mother, from this point onwards, alleged that the father and the paternal grandfather had engaged in sexual inappropriate behaviour towards X the paternal grandfather, who was on affidavit and was cross-examined, was not asked about any conduct on his part in or about December 2018.
The mother’s affidavit does not record that X exhibited the sexualised behaviour on 21–27 December 2018. During that period, X had unsupervised contact with the father on 25, 26 and 27 December 2018.
On 27 December 2018 the mother says she told the father at changeover that she thought X had a UTI.
On 28 December 2018 the mother says she asked X, “what are you going to do with Da-Da tomorrow?” and X did not reply but laid down on the ground, “arch[ed] her back while touching her vagina.”
On 29 December 2018 the mother says her sister informed her that she had just seen X “put her finger into her vagina” and say “Da-da, Bop.” In response, the mother first showed X photos which included the father and paternal grandfather and X pointed to the father and said “Da‑da” and the paternal grandfather and said “Bop”. Following this the mother said to X, “[X] show me where Da-Da and Bop touch you”. The mother says that X responded by lying on the ground, spreading her legs, arching her back and touching her vagina, kissing her hand and returning her hand to her vagina.
In a period of approximately two weeks, a pattern of question and response was established. While the mother says that these were X’s spontaneous disclosures, the role of the mother and maternal family in framing the narrative by suggestive questions, prompts and photographs must be taken into account when determining whether the narrative establishes a link between the child’s behaviour and any conduct on the part of the father or paternal grandfather.
The mother attended on the police in late 2018. Changeover took place at the police station and the father had unsupervised time with X.
This appears to be the first occasion on which the mother made a report to police. This account of the original behaviours is again different in some respects from that on affidavit:
…[the mother] stated that she has observed Behaviour issues […] in company with PN3 where [the mother] asked [the child] “What did you do with dad today?” [the child] pointed to her crotch and rear area saying “Dad Dad.” [The mother] asked “Did Dad Dad change your nappy?” [The child] continued to point to crotch at the front of her nappy. This conversation was about 3pm after picking up [the child] from visitation with [the father]. Visitation for [the father] via court order is Friday’s between 12pm and 3pm & Saturdays between 11am to 3pm. The usual arrangement for handover are at [KK Contact Service]. [The mother] stated that on the Wednesday 19th & 20th December 2018 the [child] was crying when urinating. In her conversations with [the father] she advised him she would take [the child] to a doctor if it continued (At time of reporting the [child] had not seen a doctor). Narrator advised at this point that if there was a concern of any infections a GP/Medical advise [sic] should be obtained to relieve her concern & ensure welfare of [the child] medically, but also a medical review from the Doctor would be a good reference for any other concerns of inappropriate conduct… [The mother] states from Friday last week […] the [child] has been standing on a childs chair where she would do a ‘dance’ where she is seen to touch her front crotch/vaginal area and her bottom. [The child] has done this up to eight times between then to this date (1 week). This behaviour of any form of dancing is not known to occur in the [the mother]’s primary care. Last Saturday […] when [the child] returned home after a visitation with [the father] the [child] was hot and in the house naked. [The mother] asked [the child] “What did daddy do?” [The child] has lay on the ground and put her hand to her vagina. Whilst saying “Dad Dad.”. [The mother] advised that supervised visits have been arranged as [the father] is described as lingers and has been derogatory towards the [mother] say things like she is a ‘bad parent’. Between visitations are arranged by letter which were previously through the [father]’s lawyer (ORG2) but they have stopped replying since they accused the [mother] of fabricating and incident reported to Police (refer [Suburb B] in [late] 2018). [The mother] also advised that she has recorded conversations between her and her lawyer which she states he was fully aware of. [The mother] knows that the [father] is in a new relationship and that she does not trust the [father] or his new partner in looking after [the child] any more than the current few hours permitted by the courts on Fridays and Saturdays. . On Friday ([…]2019) around 6pm after a visitation [the mother] & [the child] were at home and the [child] was naked. [The child] began to dance on a childs chair where [the child] put her hands on her vagina. Then [the child] lay on the floor, arched her back, with back and bottom off the ground but her hand was to her vagina further stating her fingers were entering her vagina. . On Saturday […] [the mother] asked [the child] “What will you do with Daddy today?” [The child] responded by kissing her hand and then placing her hand on her vagina area. [The child] was naked at the time…
On 29 December 2018, as recorded in the Magellan Report prepared in this matter in June 2019:
… a risk of significant harm report (ROSH) states “Caller has concerns for [X] when in her father’s care. Caller states [X] is showing and telling concerning actions when she returns from her father’s care. Caller states [X] has been arching her back, opening her legs and touching her private parts. Caller states these actions have been increasing of late as her father has been spending more time with her”.
The mother says that on 30 December 2018 X “placed a mobile phone between her legs with the screen facing her vagina” and later “observed [X] lie on the ground, touch her vagina and then climb onto her little chair, doing a rocking movement back and forth, kiss her hand and then touch her vagina and say ‘Da-Da’.”
The mother provided a contemporaneous account of her concerns to a number of different parties and those accounts were in evidence before me. I accept that in each case where the representation is by a person other than the mother, then they are providing their impression of what was conveyed by the mother as opposed to her actual words. It is useful to set out those accounts.
In late 2018 the mother made a report to the DCJ which records in part:
…over the past 2 weeks [the mother] has had concerns in relation to [X’s] behaviour. [Redacted] [The father] always takes him [sic] to his apartment in [Suburb A] and doesn’t take her out to parks or the library. [Redacted] asked [X] over the past few weeks “what did you do with dada?”. [X] then “opens up her legs and touches herself on her private part”. [Redacted] asked [X] the following day of contact “what did you do with dada?”, and [X] then “opens up her legs and touches herself on her private part”…she only touches herself when asked the question…. [Redacted] it has escalated as last Friday and Saturday, [X] has laid on her back and did a “sexual arch” with her legs open and “blew a kiss and touched her private” and said “bop bop”.
…
...[X] has been telling [redacted] and is questioning to herself where are these behaviours coming from as it occurs after visitation with her father. [Redacted]. [X] is not eating as much as she used to, will scream in general wakes up throughout her sleep, and is clingy [redacted] over the last couple of weeks, the inside of her vulva is red. [Redacted] it is not a nappy rash as she doesn’t have it anywhere else, or where it usually would be on the outside and towards her bottom…
(As per the original)
In December 2018 the mother attended Dr H with her mother and X. The record says:
1. ? UTI
about 1 week ago was crying every time she passed urine
vulval area looked red and inflamed at the time
…
2. Concern about child sexual assault/abuse
…
mum reports her ex partner and his family are very secretive about what happens when they care for [X]
noticed a distinct change in [X’s] behaviour from the 15th dec 2018
15th dec had unsupervised contact with dad for about 3hrs
after mum picked her up she thought she was acting differently
she asked [X] what she did with her dad and she reported that [X] touched herself in the vulval area
mum asked her if her dad touched her and she pointed to her vulval area through the nappy
she asked if her dad changed her nappy or if she had done a poo and [X] didn’t respond clearly
she then asked if her dad touched her and she again pointed to her vulval area
later on when asking about the visit mum reported that [X] then touched herself right inside where her vagina is
she reports she has never done this previously
this week there were several visits with her dad: 3hr visits each day from Tuesday-fri
again her behaviours were different, especially in the first hour after being picked up
she again responded to mums questions about what she did with dad by touching herself in the vulval area
mum also reports an incident where she has asked [X] to demonstrate what dad did with her – and she lay on her back while naked, arched her back, then kissed her hand and touched herself in the vaginal area
mum also reported an incident where [X] stood on a chair and touched herself in the vulval and buttocks area
mum also reports that dad took her swimming on Saturday but didn’t want to take her swimming costume when offered
she saw him […] with [X] and reported that [X’s] nappy was undone and she had wet herself with urine going onto the dad’s pants
(As per the original)
The mother declined the doctor’s offer of a physical examination. The doctor indicated a further urine sample would be required before she could determine whether X had a UTI (but presence of a nitrate made this a possibility). The doctor advised the mother to “try and avoid coaching or prepping [X] in her responses” and advised to “document all incidences clearly in writing [and] video if available”. The doctor made a referral to M Service and completed a mandatory notification form.
In affidavits of the mother filed 11 June 2019, 6 December 2021 and her trial affidavit, she indicated X had exhibited the same behaviours in front of Dr H. There is no record of this in Dr H’s notes or her subsequent reports.
The affidavit of the mother and the maternal grandmother suggests, and the maternal grandmother maintained in cross-examination, Dr H engaged in direct questioning of X to the effect “[w]here does Daddy touch you?” There is no record of this in Dr H’s notes or her subsequent reports.
During the consultation with Dr H, the mother spoke to the on-call worker at M Service, Ms MM, via telephone. Notes of that conversation also provide a different account of the original behaviours as follows:
[Ms Hahn] provided the following information; she had first observed concerning behaviours by [X] following her visits with her father, [Mr McGowan] (DOB: […] 1983) last week. [Ms Hahn] said after a visit between [X] and her father on the 15th December she had asked [X] “what did you do with Daddy?” and said [X] had responded by “pointing to her vagina”. [Ms Hahn] said she had then asked [X], “Did you do a yuck-yuck?” (explaining this is what [X] understands to mean doing a poo in her nappy). [Ms Hahn] said [X] responded by pointing to her vagina, and [Ms Hahn] said throughout this conversation, [X] did not verbally express anything and was wearing a nappy at the time.
In early 2019 the mother wrote to a police officer, Mr V, and reported, “[Dr H] advised sexual abuse has occurred with […] [X] after a consultation at 230PM yesterday, detecting a urinary Tract Infection (UTI) in [X]’s urine sample.” The mother’s email to the police was inconsistent with the doctor’s record.
In January 2019 the mother consulted solicitors and returned to Dr H, obtaining a referral to Dr L, paediatrician. The GP took a urine sample for testing for UTI and also sexually transmitted diseases. In cross-examination the mother accepted she did not follow up the results on the assumption that she would be contacted if the tests were positive. There were two difficulties with that answer. The first is that in January 2019 Dr H informed the mother that the tests were negative for UTI and sexually transmitted diseases and, secondly, the mother represented to the Court as late as 19 February 2019 that X had been diagnosed with a UTI. In cross-examination, the mother said that it was her (and not the doctor) who diagnosed X with a UTI (Transcript 24 May 2024, p.269 lines 13–19).
The mother raised with Dr H X kissing a worm puppet in a book and saying “Da-da”, referring to two different cupboards and saying Da-da while appearing scared and licking the mother’s armpit while breastfeeding. It is plain that the mother viewed each of these behaviours as sexualised. It is less clear why that is the case.
In early 2019 an unidentified person called the DCJ and made a report advising:
[X] “has been sexually assaulted by her biological father”. The caller wanted “Housing NSW to put an alert on the system. This request has not been granted because the alleged offender hasn’t been charged with assault and no convictions/restrictions received.
In January 2019 the mother had an appointment with Ms T. Ms T records that the APS Position Statement regarding sexual abuse was provided to the mother and that the goals of therapy included “[t]o have support in finding ways to deal with the situation so she feels less effected and can focus on solutions” and “[t]o feel stronger and in control of [X’s] safety”.
In January 2019 the mother and X (together with the maternal grandmother) attended on the paediatrician, Dr L. Dr L’s file note from an attendance by the mother in January 2019 records:
Over the last 2 weeks, [X] has been observed to put her index finger in her mouth then sucks on her finger then has been observed by mother = MGM to insert finger into vulval area and anus.
Dr L wrote two letters dated January 2019. In the shorter letter he records having been told that X was inserting her finger in her anus on at least 10 occasions and has been observed to put her index finger into her mouth sucking on her finger. In the longer letter, Dr L records:
…[X] is now reluctant to get undressed and according to mother this allegedly has been since recent unsupervised access with her father. [X] used to have 45 minutes in the bath but now she has been reluctant to get into the bath for the past few weeks. When refusing the bath [X] allegedly says: “Dad ... Dad”. When playing with [X] and using a pop-up book about a worm, -mother alleges that when she pops the worm out of the book [X] says “Dadda”.... Further concerns of the mother had related to the fact that while [the mother] was breastfeeding [X] has allegedly licked mother’s armpits and then said “Dadda”… Following one visit with her father on 15 December 2018, mother asked [X] what she did with her father,. Allegedly [X] touched herself in the lower front region of the nappy. When asked by her mother if father had touched her, [X] allegedly touched herself again in the lower front region of the nappy.
Both accounts have the mother reporting a new behaviour by X.
The mother and X also had an appointment with Dr G in January 2019. In context, Dr G’s notes appear to record a history provided by the mother. The notes record, “had forensic medical done. Saw paed[iatrician], who says ‘father is getting away with it’”. This file note is not in keeping with the medical records. I accept it may have been the mother’s interpretation of the consultation with Dr L.
Dr G’s notes also say, “16th Dec picked her up from supervised visit disclosed CSA [child sexual assault] …mother showed video of this disclosure”. The mother has not provided this video to the Court.
As already discussed, the notes further record, “I suspect he’s been interfering with her since Feb 2018. Supervised visits b/c of drug use. In Feb thought CSA occurred. After visit at Easter with father in the bath [X] was putting fingers into her vagina and continued to do this for 3 days.”
In January 2019 the DCJ received a call. The single expert in her first report summarises the record (accurately) as follows:
41.[In] January 2019, a further ROSH was made that the child had been displaying sexualised behaviour after access with her father and had been acting scared. She allegedly pointed to the cupboard and put her little doll in it. [X] reportedly made an exaggerated display of tension in which she shook her hands and went into a fit pretending to be scared. She is also scared of Santa. The caller also stated that she was reading [X] a book called Yellow Worm which had a puppet inside. [X] allegedly pointed to the yellow worm and said Dada, kissed the worm and nibbled on it saying “dad dad”. The caller reported that [X] who does not have much contact with anyone, had been putting kitchen utensils including handles between her legs and inserting objects including chalk and some toys including plastic French fries, and a phone in her bottom and vagina while repeatedly saying “dad dad”. [X] reportedly did not want to have a bath for 2 weeks whereas normally she would jump into the shower and said “dad dad bath” which the caller perceived to mean she has had baths with her father during visits. The notification was closed without assessment.
The mother says that, on 24 January 2019 at night time when she was putting a nappy on X, she “saw [X] put her finger into her anus and fingered it around to her vagina and licked it, and said: ‘Dad-da Bop’”.
On 11 June 2019 the mother filed an affidavit. In her affidavit she said:
12.[On or around 15 December 2018] The behaviour occurred in the car when I asked [X] what she did with “Daddy” or “Da-Da”. This direct question or a question of a similar nature to [X] has elicited similar sexual behaviours and answers which have continued on almost a daily basis.
This paragraph of the mother’s affidavit appears to suggest that the question was posed by the mother on an almost daily basis – prompting the same response. This is at odds with evidence the mother has given about the behaviour abating. It also suggests a pattern of repeated questioning.
The direct and repeated questioning of X – who was very young when the questions commenced – is relevant to the weight which can be attached to any responses.
In February 2019 the mother saw Dr U (at the same practice as Dr H). Dr U recorded:
Sexualised behaviour since 15 Dec
- touching vagina and saying “dad dad”
Decreasing frequency of behaviour
Hasn’t seen father since 29 Dec
Phonecall from dad on wed to [X], [X] started saying dad dad then started touching her vagina
Mum had suspicions last feb when [X] was with dad under a tree […] and [X’s] nappy was off and dad’s trousers were soaked in urine
In Apr mum had seen [X] pucker her lips and she was exploring her vagina after a visit to her dad
Mum and grandmother have witnessed her putting finger in vagina and anus
Mum says dad has taken mum to family court last May saying she has mental health problems
Mum alleges dad has [an illicit substance] problem
Has seen paediatrician [Dr L]
Seeing psychologist [Dr G] […].
- has recommended no contact to allow healing.
Has been to police – they said they couldn’t do anything
FACS has been notified – closed the case as [X] is in the care of mum
JIRT – too young, no evidence
(As per the original)
The mother sent the father an email on 13 February 2019.
[X] has brought to my attention some activities that she is alleging you have undertaken with her from 15 December 2018.
Given last week you stated that “[X] cannot talk”, I can confirm that she can communicate and has a vocabulary of 200 words.
1. Do you know why [X] inserts her fingers inside her vagina or bottom and states “Dada?” This action is followed by licking her finger and she states “Dada”.
2. Can you explain why [X] walks around with phallic-shaped objects between her legs and states “Dada”?
3. Would you know why [X] associated a worm puppet inside a children’s book that looks like a penis with “Dada” within days of spending unsupervised time with you? Prior to that, [X] has read this book twenty times and not once associated the book with you.
The above are some consistent observations I have observed from [X] since 15 December 2018. Sexual impropriety is a criminal matter.
One of my concerns in recent days has been the triggers of [X’s] sexualised behaviour like phone calls to you or showing a photograph of you with [X]. Specifically this morning when I was driving [X] to the library and she saw a [motor vehicle] like yours and she waved towards it, and touched her vagina and stated “Dada”.
I do not believe you are a pedophile but I do believe you are capable of molesting a child given your sexual obsession; your romantic references to [X]; your predisposition for sexual inappropriateness; and my conversations with your mother and her interest in your sex life.
I also note that you evaded the question when I asked why [X] points to the cupboard, states your name and tenses up as if she is scared. I have also observed [X] locking her dolls in the cupboard and repeating “Dada”.
You are the only person [X] knows as “Dada”. I have tried to discuss with you on three occasions to which you abruptly hang up the phone.
I trust my affidavits filed in the Family Circuit Court will clarify my concerns about [X] and provide justification to protect her and keep her safe.
You were contacted early January 2019 via email about [X] seeing the doctor. Given you are listed as Next of Kin, you may have made your own investigations to find out the purpose of [X’s] visit. Following Police advice, [Mr V] advised me not to speak with you directly about my concerns about [X’s] sexualised behaviour as specialist NSW Police would need to speak to you
(As per the original) (Emphasis added)
In February 2019 the mother reported to Ms T that incidences of sexualised behaviour were down to one or two a day from five to six.
In March 2019 the mother wrote to the supervised contact agency, P Group, in response to their email providing the service agreement. The mother’s email said, “[l]ocal GP diagnosed [X’s] behaviour as sexual abuse”. The same email referred to [X’s] “disclosures”. To the extent that the mother initially indicated an openness to alternate explanations for the behaviour she observed, it is plain that by March 2019 she had concluded that X had made disclosures which a third party had confirmed were indicative of sexual abuse. During cross-examination the mother’s sister also repeatedly used the expression “disclosures” to refer to what had occurred in the period 15 December 2018. The expression “disclosure” is more usually attached to a person making a verbal disclosure. As discussed elsewhere, X’s verbal skills were not sophisticated and what are termed “disclosures” by the mother and her sister were in fact interpretations of X’s conduct.
X had time with the father supervised by P Group on 29 March 2019. The contact supervisor prepared a report. It read (in part), “[X] was in a dress with a jumper and sandals. [Ms Hahn] told the supervisor [X] was toilet trained and not in a nappy and she only owned cloth nappies for the environment. [X's] Father should have nappies for [X] to wear.” The contact commenced and at some point the supervisor recorded, “Supervisor noticed [X] did not have any underwear on”. When [X] was returned to the mother the notes record, “Supervisor told [Ms Hahn] that [X] needed to have underwear or tights on at changeover. [Ms Hahn] reiterated [X] was toilet trained and she only has cloth nappies. He ([Mr McGowan]) would have ample nappies.”
There is no reason identified by the mother (in her affidavit) to explain why she would have presented X for time with the father wearing a dress and without underwear or a nappy on one of the first occasions of supervised time following her allegations of alleged sexually inappropriate conduct. In cross-examination, she said X had urinated en route to supervised contact (Transcript 6 March 2024, p.230 line 31–32). While this would explain the lack of pants, it does not explain the mother not alerting the supervisor to the lack of pants and seems incongruous with her concern that X was at risk of sexual impropriety by the father. The cross-examiner took up this topic with the mother on 24 May 2024, when it was suggested to the mother that if she was genuine in her belief that X had been abused she would have placed her in pants or a nappy. The mother disagreed. The following exchange took place:
[COUNSEL FOR THE FATHER]: Do you accept that?
[THE MOTHER]: No, I don’t agree.
[COUNSEL FOR THE FATHER]: And - - -?
[THE MOTHER]: Because the supervisor was looking to see whether there was any arousal.
[COUNSEL FOR THE FATHER]: I’m sorry? What was that?
[THE MOTHER]: The supervisor was observing the father’s reaction.
[COUNSEL FOR THE FATHER]: No. You said something along the lines of the supervisor was seeing if there was any arousal?
[THE MOTHER]: From the father.
[COUNSEL FOR THE FATHER]: What do you mean by the word - - - ?
[THE MOTHER]: From the sexual addict.
[COUNSEL FOR THE FATHER]: So by you presenting [X] without a nappy and without underpants was that your way of seeing if the father would be aroused?
[THE MOTHER]: Well, you tell me, Mr Finch, how it works.
(Transcript 24 May 2024, p.289 line 37 to p.290 line 4)
The narrative about this incident which emerged in cross-examination was to the effect that the mother had chosen to present X at supervised contact without a nappy or pants in order to have the supervisor ascertain whether the father became aroused. There is no mention of any such discussion between the mother and the contact supervisor to this effect. I was not able to determine whether this evidence was recent invention or an example of the mother using X’s time as a means to obtain evidence against the father. Either possibility is of concern when it comes to ascertaining the mother’s capacity to act in a child focussed fashion.
In May 2019 W Family Services, the then contact service for X’s time with the father, recorded that the mother sent an email to them stating:
As of […] June 2019, I will no longer be able to make Fridays with [X].
I am seeking a long term supervision order for father in light of the serious allegations and evidentially the reduction in sexualised behaviours since the supervised time commenced…
In mid-2019, a further ROSH report was made to the DCJ relating to X placing her fingers in her vagina and holding phallic-shaped objects between her legs and placing them in her mouth.
On 7 July 2019 the mother sent an email to the father with Ms R copied in. The email reads:
I note tonight in a video conference after [X] left the room I raised my concerns about [X] placing a phallic-like object between her legs and stating “Dada”. Namely a toy worm and alternatively a sand-shaped snake.
Further to this in the same call, I also raised my concerns with you about my observation that [X] got out of the bath on Friday 5 July 2019 and inserted her fingers inside her vagina lips and then I saw her lick them. I heard [X] immediately state “Dada” and [X] then laughed.
I note you did not respond to my allegations directly made to you in the video call tonight.
My intention with the child-focused video calls is to recreate positive and safe memories for [X] of her father – but it seems the suspect activities you undertook with her during unsupervised time between September 2018- December 2018 are still surfacing from time to time despite supervision during 2019.
You advised me on 20 April 2019 that NSW Police never spoke to you about the concerns I directly raised with Police [in late] 2018.
[Mr V] advised me that he is NOT an expert is sexualised behaviour and advised me to take [X] to a child psychologist who is an expert in sexual abuse. I spent more than $1200 on visits to [Dr G] following the instruction of [Mr V] because 1 was advised that NSW Police are NOT experts in highly sexualised behaviour.
*******[Ms R] is included in this email to provide her expertise on the new allegations that have been raised.
(Emphasis added)
The police officer replied to the email advising that including them in the email is insufficient to create a report and recommended that she make a formal report herself. No such formal report followed.
The DCJ received a ROSH report in mid-2019. The report records:
…Screened in for ‘sexual abuse: suspicious indicators consistent with sexual abuse’ for [X] (2) who was observed on the 5/07/2019 inserting her fingers inside her vagina lips and licking them while stating “Dada” these behaviours in current and previous reports are uncharacteristic for her age and are indicative of extremely sexualised behaviours which, given her history, are also increasing in frequency and intensity. [X] was also observed placing a toy worm and snake between her legs and stating “Dada” however, this information was already known…
(As per the original)
The reference to the behaviours increasing in frequency and intensity is at odds with the mother’s sworn evidence and makes the complete absence of any observation of same by supervised contact workers all the more telling.
In late 2019, the DCJ received a report from a person described as having received “a referral from Police regarding a DV [domestic violence] incident”. The note says:
Mum feels like the father is being inappropriate with her child.
Mum disclosed that [X] was putting an object between her legs, saying ‘like dadda’.
…
…Mother reported 2 yr old showing inappropriate behaviour, putting toilet rolls at the top of her legs under her vagina. Mother seen that happened a few times. Daughter would also put sand between her legs.
Unknown how long it has been going on.
Unknown what mother does when child displays this behaviour.
Parents have been separated. Unknown for how long. However, stated when daughter comes back form [sic] visitation with the father, this behaviour is happening.
(As per the original)
In late 2019 the mother attended NSW Police with a disk containing a recording from July 2019. The mother had recorded a video call, ostensibly, between the child and father but at the conclusion she posed a series of questions to the father (the father also recorded this call). The content of the video is recorded in the DCJ notes as follows:
[HAHN] puts the following allegations to [McGOWAN] who remains silent throughout. “Have you ever been naked in front of [X], apart from in the cupboard?” “Why does [X] know, you have a snake between your legs?” “When she gets out of the bath and she doesn’t have clothes on, she puts her finger between her vagina lips and puts it back in her mouth and says Dad Dad.” “So you know how you said I brought shame to my father. You’ve brought shame to the human species. You could bring any shame to your family, but you’ve brought shame to mankind by what you’ve done to [X]” “You can say my Mother obsessed with paedophiles. I’m the one who’s been seeing these occurrences for the last couple of weeks. My mother hasn’t seen them. My Sister hasn’t seen them. I’ve seen them because I’m with her.” “Were you molested as a child? I’m levelling with you were you molested as a child?” “At the moment [Mr McGowan], its been about me creating positive safe memories for [X] rather than her putting her fingers between her vagina lips and then licking them” “Will I assume you were molested by your Mother, [Mr McGowan]? This conversation appears to be entirely within earshot of the child. Given the odd behaviour mentioned by [HAHN] police have serious concerns for the development of the child. Reviewing recent events involving [HAHN] also appears to have a number of mental health issues…
(As per the original)
The making of these allegations by the mother without evidence to support them underlined the concern of the single expert that the mother was fixated with an outcome which achieved her aim of supervision.
The mother has made plain to the court that she does not consider herself bound by court orders. There are two significant examples of this:
(1)Orders about X’s name; and
(2)The mother unilaterally suspending time for seven weeks in December 2023/January 2024.
On 17 October 2019 Foster J heard and determined an Application in a Case relating to X’s surname. His Honour made the following order:
2.That, without admission, the mother shall at all times use the name “[X McGowan]” in relation to the child and is hereby restrained from using or adopting the use of any other surname for the child including the surname “[Hahn-McGowan]”.
Since that time the mother has used the surname “[Hahn-McGowan]” for X in the following contexts:
(a)On 21 January 2020 in an email to the father’s lawyer;
(b)On 23 March 2020 on an enrolment form for LL School;
(c)On domestic travel documents;
(d)Correspondence with supervision services;
(e)At the hospital;
(f)Doctors; and
(g)Playgroup.
The single expert concluded that the mother’s pattern of interaction with the outside world offers X poor role modelling about how to manage conflict. I accept that opinion.
Mother’s unilateral suspension of time
The current orders for time were those made on 23 July 2019 and reconfirmed 17 October 2019. Those orders provide for weekly time for at least three hours.
There have been many occasions on which time has not taken place – usually in between supervision agencies.
By agreement between the parties, the weekly visits have been for six hours (not the minimum of 3). The father’s visits with X in the period commencing 22 July 2023 were supervised by a supervised contact service called JJ Family Services. Time occurred weekly until the visit on 2 December 2023. The mother did not facilitate any visits between that date and 20 January 2024 in circumstances where the orders obliged her to do so. By way of explanation, she told the Court that she had arranged to be away on 9 December 2023 and said in her affidavit:
437.Given the Courts would be closed over Christmas, on 15 December 2023, I emailed all parties, including the supervisor that I would only be allowing supervised phone calls for [X’s] wellbeing pursuant to s 70NAE of the Family Law Act 1975. This phone contact continued. I didn’t want [X’s] life to be disrupted again, and her be unnecessarily subjected to another DCJ/FACS investigation.
Curiously, the mother says that the visits recommenced at X’s request on 20 January 2024. I have discussed elsewhere in these reasons the concern of the single expert that the mother defers to X’s views about topics which are appropriately the purview of adults (especially adults who are bound by the terms of an existing court order).
In cross-examination it became apparent that the visit on 9 December – which did not take place because the mother arranged to be away – occurred in the following circumstances according to her sister: the mother intended to take X to Sydney to see a musical. She did not buy tickets. She intended to buy them on the day. She could have bought them for the Sunday. X’s cousins were ultimately not able to see the musical on Saturday 9 December because of another commitment. X did not see the musical on Saturday 9 December 2023. X did not see her father on Saturday 9 December 2023.
When time occurs weekly, it is reasonable for an occasion of time to be missed when there is an unavoidable clash (special family event etc). However, the mother’s approach to the father’s time was that it was within her purview to cancel it at her election.
It is true that the Court is not open from 25 December to a date in early January. However, even if one were to accept the mother’s reason for retaining X (the Court shutdown period) the amount of occasions of missed time well exceeded the mother’s rationale supporting the conclusion that the mother did not regard herself as bound by the terms of the orders.
Father’s unilateral suspension of time
In September 2021, after the person who the mother had sent to the father’s home under the guise of being an employee of a supervised contact agency left, X remained with the father unsupervised. The father’s actions in seeking to ascertain the credentials of the alleged supervisor were reasonable. His concern about the mother having effectively sent a person who declined to identify herself led him to question whether the mother was unwell, and he elected to retain X. Ideally, the father should have returned X to the mother’s care as soon as practicable as the existing court orders did not provide for unsupervised time.
The father says he brought an application expeditiously and that would appear to be the case. It is not difficult to see why the father would have been shocked by the mother sending a person to his home under the guise of being an employee of a supervised contact agency. The father did not know (at that stage) that the mother was personally acquainted with the person she had sent. He saw the mother’s behaviour as erratic and unusual.
The parties had no functional coparenting relationship and so at this stage, the mother’s attendance at the father’s home was similarly understandable. The father had retained X who had hitherto spent only supervised time in his care. She expected that if she asked for X to be returned the father would agree.
The situation escalated as the mother attended at the father’s home in September 2021 and said to police after being reassured X was fine, “I am a taxpayer, I demand you do your job and conducted [sic] a medical assessment of my daughter.” The mother told police the father was a paedophile. Police record the mother as behaving erratically and yelling. The police informed her that she would need to seek a recovery order.
The mother returned to the father’s home the following day at 9.00 am. She also asked for an ambulance to attend – which occurred. The single expert recorded in her recent report at [127] that:
…the involvement of ambulance allegedly because [Ms Hahn] suspected [X] may have been under the influence of drugs displayed an extreme lack of insight into the damaging and traumatic effect that would have had on [X]. It is unclear how such an incident could be “normalized” or justified as not exposing a child to trauma.
In the afternoon the mother spoke to X. The parties agree the mother asked X whether she wanted to come home. They disagree about the answer X gave. The mother than attended at the father’s home about 6.00 pm in the company of her mother and sister. The father arrived home to see the mother approach. The father says the mother banged on the windows of the car (which contained X) and tried to open the car. Both the father and Ms Z were cross‑examined about these events and confirmed the account provided to police at the time. Police were called by Ms Z. Police arrested the mother, grandmother and aunt for intimidation but ultimately determined to release them without charge. Concerned the mother’s behaviour was escalating, police applied for an ADVO.
I accept the opinion of the single expert that the father’s decision to retain X lacked insight – not because she was at risk in his care but because he acted contrary to a court order in circumstances where he must have known it would expose X to conflict between her parents – which it did.
The evidence supports the need for a change in X’s parenting arrangements. Having determined that there is no unacceptable risk of sexual abuse and considering the benefit to X of graduating to unsupervised time with the father, the options are:
(a)for X to live with the mother and spend unsupervised time with the father;
(b)for X to live with the father and spend unsupervised time with the mother;
(c)for X to live with the father and spend supervised time with the mother.
Both of the options whereby X lives with the father are untested – in so far as the parties separated when X was a baby and the whole of X’s memory involves living with her mother. Untested does not mean unsafe. Protective factors in this case include X’s close relationship with the father, her good relationship with the father’s partner and her developing relationship with her sister.
For the reasons set out above the preferred option is to make orders which provide for X to live with the father and have supervised time with the mother. The Act requires me to consider what order is most likely to create finality. It is difficult to foresee how any arrangement implemented after such significant period before the court will fare. On balance this arrangement which preserves a possibility of a relationship with both parents and both families may offer marginally more finality and stability.
The father gave evidence that he can and will take leave from his work. This approach was endorsed by the single expert. This will assist X’s transition. In addition, these orders will be made just before the mid-year school break. That will also be of assistance as X will be able to spend time with her father, sister and Ms Z and commence the new school term at her new school.
Recommendation for block out period and supervision
The single expert concluded that any orders which provided that X live with the father would present an enormous challenge to the mother. I agree. Having heard the evidence, I would be particularly concerned about non-compliance with the orders and the potential for the mother to undermine the transition if the time she spent with X were not suspended and then supervised. The single expert reported in her recent report:
114.…[Ms T] also referred to the impact on [Ms Hahn’s] emotional well-being should [X’s] current living arrangements change.
115.It would therefore be difficult, should [X] live with her father, to recommend how [X] could have a relationship with her mother without [Ms Hahn] becoming non-compliant and undermining any such arrangements. It may be necessary for a block out period to be in place before [X] resumes spending time with [Ms Hahn]. Subsequently, at least for a period of time, any time [X] spends with [Ms Hahn] may need to be supervised, however, the history of [Ms Hahn’s] relationship with supervising agencies may pose a difficulty for that to occur.
The period of “no time” was described by Dr Q as designed to assist X to “settle” (Transcript 7 June 2024, p.4 line 4).
Ms T’s concerns about the impact of an order for unsupervised time (discussed above) are clearly equally if not more relevant to an order that X live with her father and supervision would function to shield X from her mother’s “psychological distress and pain” and ensure that the time spent does not function to undermine X’s stability in the care of her father.
I am conscious that this will be experienced by X as a loss and I expect she will experience grief. It is necessary to appreciate this within a broader context of X’s medium to long term wellbeing and healthy psychological development.
The mother submitted that X had been traumatised when the father retained her between 10 and 15 September 2021. The mother says that X asked her, “why did you leave me there for 5 weeks?” X was four years old. It is reasonable to imagine that she would have found four days away from her mother challenging given the history of care arrangements and the lack of any precedent. That is not the same as finding that she suffered or experienced trauma. X’s maternal aunt gave evidence that X had expressed fear about being kept away from her mother more than six months later and made reference to the police. I accept that the level of conflict and police involvement is likely to have been a cause of concern for X. Similarly, being separated from her primary caregiver for five days without warning would have been difficult for her to comprehend but the evidence falls short of establishing that she experienced trauma. The police saw X at the father’s home and described her as “happy and content”.
It is necessary to identify the basis upon which supervision is necessary. Supervision is necessary to ensure that X is protected from psychological harm. In this case the mother has been committed to supervision of the father's time since the parties’ separation. While originally (as conveyed to W Family Services) she saw this as necessary only until X could talk, she maintained that position throughout six years of litigation and resisted entreaties of the ICL to relax supervision. It is not possible to conclude that she will support the father having unsupervised time merely because it is by order of the court. The mother has questioned all agencies who do not share her view, making a Damascene change of position in cross‑examination an unreliable basis for me to conclude she could now support X in an unsupervised setting.
Dr Q described a change of residence as a last resort because X will find the experience of being away from her primary caregiver difficult. For this reason, there must be protections designed to enhance X’s stability. A supervisor’s role will be to ensure that the conversation between mother and daughter avoids discussion of returning to the mother’s care or any negative discussion or inquiry about the father or his family.
Dr Q expressed a concern about the practicality of long-term supervision – particularly in this case since there have been multiple changes in the supervision agency. As I have found that on each occasion the agency has terminated its services due to an inability to work with the mother (or the mother has lost faith in the agency) it would be in X’s interests if the mother could work more cooperatively with the incentive that gaps in the schedule of time between X and the mother are unlikely to be in X’s interests.
Supervision also provides protection against X becoming aware of a narrative which includes that she was the subject of sexual abuse by her father. Dr Q said this would be “damaging for her development” and “self concept” (Transcript 6 June 2024, p.20 lines 28–30).
Originally the father had sought orders which provided for the mother to transition back to unsupervised time. This is consistent with his position that he is supportive of X’s relationship with the mother. Following Dr Q’s evidence, the father acknowledged that it may not be possible to know whether or not there had been a change in the mother’s beliefs and conduct so as to make unsupervised time appropriate. In order to provide an opportunity for the time to transition, the time remains supervised but could become unsupervised at the father’s election. I am satisfied that the father has the requisite insight and sufficient capacity to promote X’s relationship with the mother by way of unsupervised time if he deemed it safe to do so for X.
Frequency of time
The ICL Minute of Order, which the father largely adopted, provided for supervised time between the child and the mother on six occasions per year for three hours.
I accept that from time to time the Court will determine that it is in a child’s interests to have limited “identity type” contact to allow the child to know who her parent is in a safe situation. Examples of where such time might appropriately be ordered are where there is a possibility that the time will be experienced negatively by a child or that the frequency of time will cause the parent who must facilitate time to decompensate. I am not confident that such limited time is appropriate for X. Provided the supervision functions to protect X from inappropriate conversation them I am satisfied that she will enjoy the time spent with her mother and it will be of benefit to her and accordingly I am not inclined to make orders for “identity” time only.
It would be appropriate for X to see her mother each fortnight both during school term and school holidays. This pattern does not provide too long a gap between visits but would allow X to have a family vacation on days were time is not scheduled to occur.
It would also be appropriate that there be additional time on Mother’s Day each year.
The costs of supervision should be borne equally. The ICL suggested supervision costs should be met by the father but no submissions were made to support that position and in circumstances where each party is employed and the father will have the care of X it is more appropriate that each party contribute.
Injunctions
The power to make orders for the protection of children is wide – that includes injunctive power. I am satisfied that orders which prevent X’s mother from contacting or approaching X are necessary. X should be given the best opportunity to transition into her new parenting arrangements.
The mother sought an injunction that X not be left in the unsupervised care of the paternal grandparents. Both the paternal grandparents gave evidence and were cross-examined. I considered that they were candid. The paternal grandfather said that, since a medical condition in 2008, he has not consumed alcohol or been violent to his spouse.
I accept the mother witnessed an argument between the paternal grandparents but I am not prepared to make an injunction on the basis of that evidence. I do not anticipate that the father is likely to have much cause to leave X in the care of his parents. They do not live in close proximity. But I see no reason why they should not spend time with X in the father’s absence if the circumstances are, in the father’s opinion, appropriate.
The mother and father both sought some general injunctions about topics such as alcohol consumption, drug consumption including tobacco and X’s consumption of films and music.
In the circumstances of this case, I consider that it would not be in X’s interests (absent sufficient evidence of risk) to make the injunctions as sought because of a concern about potential litigation relating to real or perceived breach.
The mother sought some injunctive relief which was beyond power such as restraining the father from making false allegations or approaching DCJ and police. I decline those applications.
The mother sought an order that the father be declared a vexatious litigant. The father filed an application in 2018 to spend regular unsupervised time with his daughter. In 2024 I am making an order that his daughter live with him. It follows that I decline to declare him vexatious.
Provision of information
I have made an order for sole parental responsibility. It is in X’s interests that her mother have information. I will require the father to provide information about X’s education and any medical treatment (outside of general practitioner visits) to the mother at an email address nominated by her.
X’s surname
The mother seeks an order that she be permitted to change X’s surname. The father opposes the making of the order.
X’s birth certificate provides her registered legal name as “[X McGowan]”. That name contains connections to both her mother and her father.
The father is concerned that if an order were made to change X’s name to X-Hahn-McGowan the mother would be likely to drop “[McGowan]” and refer to X as “[X Hahn]”. The mother says that is not the case. The father said in cross-examination that the mother and her family have a very poor view of the McGowan name. She addressed one of her text messages “Dear McPedophiles” and has referred to the father as “Mr McP” which she accepted in cross-examination is an abbreviated version of “McPedophile” (Transcript 24 May 2024, p.320 line 19). The mother sent other messages to the father’s parents, declining to use the paternal grandmother’s married name, something she repeated during oral evidence. I accept that the father’s concerns are grounded in his experience.
I must be guided by the order which will be in X’s best interests. The mother says that X identifies with the name “[Hahn-McGowan]” as that is the name she wishes to use and has been using. The mother said, “I’ve acted in the best interests of the child, as [X] wanted to identify with both her mother and her father” (Transcript 24 May 2024, p.318 lines 4–5).
The existence of the mother’s first name as X’s middle name provides that opportunity for X to identify with both parents through her name.
Court ordered therapy
While the father adopted the ICL Minute of Order it was not plain whether he continued to seek orders in his own minute not otherwise dealt with by the ICL’s Minute of Order.
The father had sought orders about the mother’s engagement in therapy. Given the orders which I am making for X’s care, I do not propose to make the orders that the mother attend a psychologist. That does not mean that she cannot or should not that but her attendance is not a condition of the spend time orders and so I will, consistent with L v T (1999) FLC 92-875, dismiss that aspect of the father’s application.
The ICL seeks orders about X’s attendance at therapy to which I understand the father consents. All parties acknowledge X will benefit from outside assistance and I will make those orders.
Passport order
The father sought an order to permit international travel and enable him to obtain a passport. I did not hear any submissions in opposition to this course and there is no evidence that the father poses a flight risk. It is in X’s interest to enjoy a holiday outside Australia with family or school if the opportunity arises and I propose to make the orders.
Discharge of ICL
The father sought an order that the ICL continue in the role for 12 months. The effect of the making of final orders is to discharge interim orders including the order for appointment of an ICL. The function of an ICL is as a lawyer to act independent in proceedings concerning the child. The ICL has agreed to explain the orders to X, as is appropriate. Otherwise, I consider that, since there are no proceedings following the making of the orders then there is no ongoing role for an independent children’s lawyer and accordingly I decline the father’s application.
Costs
The ICL sought an order that the parents pay the costs of the ICL in equal shares. The father’s counsel opposed the making of the order. The mother’s counsel did not. The ICL did not seek to recover the costs of the final day of hearing – seeking that each party meet $9,625.
Following the close of oral submissions the mother filed a document, purportedly a costs notice, but in effect submissions in support of a costs application against the father.
Apart from the costs of the single expert (and ICL) I did not have the opportunity to hear from the parties about any costs application they may make for an order that one or other of them meet the legal fees of the other.
If either party seeks costs (against the other) then an application and affidavit should be filed.
Dr Q’s report fee was $8,800.
Rule 7.06(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that unless parties agree otherwise or the court orders otherwise, the parties (excluding any ICL) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
I see no reason to depart from this Rule in this case given that each party is employed.
The father paid in the first instance so the mother should pay the father.
The ICL’s application is governed by the provisions of s 117 of the Act.
The costs of the ICL are governed by the provisions of ss 117(3), 117(4) and 117(5). These sections acknowledge the special function and unique position of the ICL (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207, 225–226). Hence, the provisions of s 117(1), which only apply to “parties”, do not create the same starting presumption for ICL costs applications.
I am required to disregard the fact that the ICL receives legal aid funding when determining the costs application (s 117(5)), which obligation has been interpreted to mean the ICL should be presumed to be unfunded so as to incline the Court to order the parties’ contribution to the ICL’s costs (De Roma & De Roma (2013) 49 Fam LR 226).
The father’s counsel referred to the costs of the proceedings for the father and the costs of supervision. I acknowledge that burden but unless I am satisfied that s 117(4) is engaged then I regard the application as appropriately brought. There was no evidence nor any submission to suggest that an order would create hardship. I note that the final orders will decrease significantly the need of the father to pay for supervision.
Both parties were privately legally represented and the costs of the ICL in contrast are modest. I propose to order that each party pay half the ICL’s costs.
I certify that the preceding three hundred and thirty-six (336) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 June 2024