Melton and Hurley
[2017] FamCA 346
•25 May 2017
FAMILY COURT OF AUSTRALIA
| MELTON & HURLEY | [2017] FamCA 346 |
| FAMILY LAW – CHILDREN – With whom the child shall live – Where the mother makes allegations that the child was sexually abused by the father – Where the mother video recorded the child’s statements on several occasions – Where the mother claims the child will be at an unacceptable risk of harm in the father’s care – Where no unacceptable risk was found – Where it is found that the mother’s belief that the father has abused the child is not genuine – Where the risk of psychological harm if the child remains with the mother is unacceptable – Where the child will have no relationship with the father if she remains with the mother – Where the child shall live with the father – Where the father has sole parental responsibility of the child. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Goode & Goode (2006) FLC 93-286 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69 Russell & Close FamCAFC 25 June 1993 (unreported) SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Mr Melton |
| RESPONDENT: | Ms Hurley |
| INDEPENDENT CHILDREN’S LAWYER: | Arlene Gomes |
| FILE NUMBER: | BRC | 503 | of | 2013 |
| DATE DELIVERED: | 25 May 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 3 - 7 April 2017 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Rice Naughton McCarthy |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Order
All previous parenting orders are discharged.
The father shall have sole parental responsibility for all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”) in respect of the child B born … 2012 (“the child”).
In the exercise of the father’s sole parental responsibility he shall:
(a) Inform the mother in writing (via email) about decisions to be made 21 days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable.
(b) Seek a response form the mother in writing about the decision to be made.
(c) The mother shall have 7 days to respond to the father’s email correspondence.
(d) The father shall consider the mother’s response and keep in mind the best interests of the child as his paramount consideration.
(e) The father shall inform the mother is writing as to the decision he has made.
The child shall live with the father.
The mother shall spend time and communicate with the child, at all times as may be agreed between the mother and father in writing and failing agreement as follows:
(a) For a period of not less than one (1) month from the date of this Order the child shall not spend time and communicate with the mother except for:
(i)Sending the child cards, letters and gifts once per week; and
(ii)Sending cards and gifts on special occasions.
(b) After the expiration of one month and for a period of twelve months from the date of this Order, the mother shall spend time and communicate with the child:
(i)for a period of up to 2 hours on one occasion each fortnight on condition that it is supervised by a representative of C Group or by a private supervisor if agreed between the parties, at times and days to be nominated by a representative of C Group or the private supervisor;
(ii)By telephone, Facetime or Skype on one occasion each week; and
(iii)By way of cards and gifts on special occasions.
(c) After the expiration of twelve months from the date of this Order, the mother shall spend time and communicate with the child:
(i)for a period of up to 7 hours on one occasion each fortnight on condition that it is supervised by a representative of C Group or by a private supervisor if agreed between the parties, at times and days to be nominated by a representative of C Group or the private supervisor;
(ii)By telephone, Facetime or Skype on one occasion each week; and
(iii)By way of cards and gifts on special occasions.
The costs of supervision of the mother’s time with the child shall be shared equally between the parents.
The mother is restrained and an injunction hereby issues restraining her from taking any other person with her to C Group, or supervised time by an agreed private supervisor, save with the prior written consent of the father and the supervisor.
The mother is restrained and an injunction hereby issues restraining her from attending any day care/kindergarten/school attended by the child from time to time save with the prior written consent of the father.
The mother is restrained and an injunction hereby issues restraining her from approaching the child or contacting her in any way other than in accordance with this Order or as agreed in writing with the father.
In the event the mother continues to attend upon Dr D, Consultant Psychiatrist, the mother is permitted to provide Dr D a copy of the Reasons for Judgment of her Honour Justice Carew delivered 25 May 2017.
That the mother and father shall:
(a) Keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone number;
(b) Inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
The parents authorise, by this Order, any day care/kindergarten/schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the parent’s cost).
During the time the child is with either parent, that parent shall:
(a) Not question the child about the personal life of the other parent
(b) Speak of the other parent respectfully; and
(c) Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
The mother is restrained and an injunction hereby issues restraining the mother from recording any more video footage of the child in which the child is alleged to be either making allegations of sexual abuse or displaying sexualised behaviour and the mother shall destroy any video recordings and / or photographs taken by her or with her knowledge relating to the allegations of sexual abuse after the expiration of thirty days.
The mother is restrained and an injunction hereby issues restraining the mother from taking the child to any psychologist, counsellor, or allied health professional seeking counselling or therapeutic assistance for the child in relation to alleged sexual abuse, including the E Group organisation.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
Any outstanding application is dismissed.
The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melton & Hurley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 503 of 2013
| Mr Melton |
Applicant
And
| Ms Hurley |
Respondent
REASONS FOR JUDGMENT
The applicant is the father of B born in 2012 and the respondent is her mother.
The father applies for a parenting order that the child live with him and spend supervised time with the mother. The mother applies for a parenting order that the child continue to live with her and spend no time with the father. Each parent applies for sole parental responsibility.
issues
The issues identified by the parties as relevant to a determination are as follows:
a)Whether there is an unacceptable risk of the child being sexually abused by the father if he spends time with her;
b)Whether there is an unacceptable risk of the child being exposed to family violence if the father spends time with her;
c)Whether the mother has orchestrated and fabricated the allegations of family violence and sexual abuse against the father;
d)Whether the mother has a genuine belief that the child has been sexually abused by the father;
e)Whether there is an unacceptable risk of the child being exposed to psychological harm if the child continues to live with the mother or has unsupervised time with her; and
f)The impact on the child if there were a change in her living circumstances.
conduct of the trial
Given the allegations of abuse and violence made by the mother against the father, arrangements were made for her and her mother to give her oral evidence via video link.
background
The father and mother had a brief relationship from September 2011 until September 2012. The father alleges there was a brief reconciliation in or about February 2013 which is denied by the mother.
The father is forty-three years of age and is a tradesman by occupation. He commenced a de facto relationship with Ms F in or about February 2015. Ms F has a daughter, G, aged seventeen. G is autistic. She lives with the father and Ms F in H Town.
Ms F has worked for the public service for over ten years at the school where G attends. Ms F has an extended family comprising her parents, three siblings and seven nieces and nephews with ages ranging from three to seven years. Her family met the child on Father’s Day 2015 at a family barbeque.
The mother is forty-three years of age and works part time. She and the child also live in H Town. She was in a relationship with Mr I for the period April 2013 to September 2014 although they did not live together on a permanent basis. He maintained a home in Brisbane until March 2014 when he moved to H Town and in September 2014 he moved to J Town.
On 1 February 2013 a ‘final’ parenting order was made by consent (although the father says he agreed under duress just so he could see the child). That order provided for the child to live with the mother and spend gradually increasing time with the father. Under that order the parents had equal shared parental responsibility.
Pursuant to that order the father was to undertake a Triple P parenting program, an anger management program and an alcohol awareness program. The father completed the courses and commenced to spend time with the child. The mother challenges the commitment of the father in undertaking the courses given the content of the report provided from the anger management counsellor which suggested he did not have an anger management problem.
The father spent unsupervised time with the child from 20 March 2013 until March 2014. Initially the time spent was three hours on a Wednesday and three hours on a Saturday. At the father’s request the time changed to six hours on a Saturday. Pursuant to the February 2013 order the father was required to spend the time at the local park (save if the weather was inclement) until the child turned two years of age. The father concedes that there were two occasions when he did not spend the time at the park. The mother contends that there were more occasions when the father left the park with the child.
The child did not spend any time with the father from March 2014 until 30 November 2014. The mother stopped the child spending time with the father and the father declined to spend supervised time with the child on the advice of his then lawyer. The mother had concerns about possible sexual abuse at the time but contends that her reason for stopping time was because the father threatened to “kill them all”.
On 27 November 2014 the father filed a Contravention Application.
The child spent time with the father for two hours on 30 November 2014 at the father’s home supervised by the maternal grandfather.
On 22 December 2014 the father filed an Initiating Application seeking an order that the child spend alternate weekends with him and every Wednesday and equal time when she turned six.
On 24 December 2014 the child spent time with the father at a local park supervised by the maternal grandfather. The father gave the child gifts comprising a clock with batteries, a water pistol and two yellow ducks.
On 16 April 2015 an order was made by consent providing for the father to spend supervised time with the child at K Contact Centre.
On 2 May 2015 the child commenced to spend time with the father at K Contact Centre for two hours each Saturday supervised by Ms L.
On 12 June 2015 an order was made by consent removing the requirement for supervision as and from 11 July 2015 with changeovers still occurring at K Contact Centre.
On 10 July 2015 the mother filed an application to suspend the order made on 12 June 2015.
The child did not spend any time with the father from 5 July 2015 until 23 August 2015.
On 21 August 2015 the parties consented to an order adjourning the mother’s application to suspend the order made 12 June 2015 until after the release of the family report and the father’s de facto partner, Ms F, signed an undertaking to the Court in the following terms:
I will be present at all times whilst the child the child is spending time with the father pursuant to Orders of the Court.
The father spent time with the child on 23 August, 28 August and 6 September 2015. Ms F insists she was present at all times.
The matter was transferred to this Court on 16 December 2015.
On 19 February 2016 the order made 12 June 2015 was discharged and an order made for the father to spend time with the child for two hours each Sunday with ‘one-on-one’ supervision of the father’s time at K Contact Centre.
The father’s supervised time with the child recommenced on 28 February 2016 although it did not occur every Sunday for various reasons. The child’s time with the father again ceased after 3 July 2016.
On 18 August 2016 K Contact Centre withdrew its services.
The child’s time with the father recommenced on 17 December 2016 supervised at C Group although the next period of time spent did not occur until 8 January 2017.
On 16 February 2017 an order was made that the child spend time with the father for two hours each Saturday supervised at C Group. The father has spent time with the child largely in accordance with that order since that time.
The payment of child support has been an ongoing source of dispute between the parties. In recent times the father’s tax refund of over $4,000 was confiscated for the payment of arrears and there remains about $1,000 outstanding. The current assessment is about $80 per week.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must 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.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
In cases, such as the present, where a party submits that a child will be exposed to an unacceptable risk of harm the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[4]
[4]M v M (1988) 166 CLR 69
child abuse allegations
Unfortunately, this Court regularly deals with cases in which allegations of child abuse, including sexual abuse, are made. It is often difficult to prove or disprove such allegations and the evidence relied upon to establish an unacceptable risk is quite often tainted by even well-meaning attempts to obtain the necessary evidence. More often than not such attempts are ill conceived and may destroy evidence or make it unreliable to the detriment of all concerned, save perhaps a guilty party.
In the present case, in addition to lengthy affidavit material relied upon by the parties, oral evidence from a number of witnesses and video recordings of the child (for which the parties have tendered agreed transcripts), I have read over five hundred pages of subpoenaed documents that have been tendered as exhibits.
Given the nature of the allegations and the circumstances in which they arise, it is necessary to set out the evidence in significant detail. The failure to mention a particular piece of evidence should not be interpreted as a failure to consider it.
The allegations are made in the context of an alleged violent relationship between the parties. The evidence relating to the allegations of violence will be considered separately.
Relevant history to the allegations
2013
On 20 April 2013 the mother sent two text messages to the father. In the first one she states, “[Mr Melton] you did not pay the child’s maintenance. You don’t want to go down tjid (sic) road or im going to take out another DVO. No money no visits”. When informed by the father that the money should be in her account as it goes in automatically her response included, “no visits until you get it sorted”.
In May 2013 the father recorded a conversation between himself and the mother. The conversation occurs during a changeover for the child. The exchange includes the following:
…
Mother: Just remember [Mr Melton], DVO and [Ms M]
…
Mother: You better start taking care of the child’s wellbeing or I’m going to do a story
Father: A story?
Mother: Yep
Father: What? In a newspaper or something?
Mother: A magazine
…
Mother: You better start depositing money for my daughter’s wellbeing
…
I’m going to prick your balloon
…
[Ms M]. Domestic Violence Order ……
Where’s the money [Mr Melton]?
…
Where’s the money?
…
[Ms M]. DVO. See ya
On this same day, the father sought a change to his time from a Saturday to a Sunday so that he could visit a terminally ill friend in hospital. The mother’s response was “Too bad” and “Well, it’s not my problem”.
On 2 October 2013 the mother took the child to the doctor. The reason for the visit is noted in the records to be for a check-up for the child. In the context of the child spending time with the father the mother complained that after visits the child is tired, not happy and sleeps for two hours after the visits. She said the child is afraid. She also complained of finger like marks on the child’s ribs and said she took a photograph. She said the father had been threatening her with phone calls and text messages. Neither the photograph nor the alleged threats are before me. However, exhibit 3 indicates the police conducted an investigation (including viewing the text messages) and concluded that no offences had occurred. The mother does not make any allegation in these proceedings that the child was harmed by the father at or around this time.
2014
On 21 February 2014 the mother wrote to the Child Support Agency and asserted among other things that the father was “an abuser a compulsive liar and a cheat”.
On 24 February 2014 the mother alleges that she observed the child in the lounge room trying to insert a lipstick into her vagina. She removed the lipstick and the child cried. A short time later she observed the child in the bedroom with her legs apart inserting a mascara case into her vagina. She consulted a friend who told her this was not normal and she should report it to the Department of Communities, Child Safety and Disability Services (“the Department”).
On 25 February 2014 the mother took the child to Dr N and said that the child had been trying to insert a lipstick pencil and mascara into her vagina and that “she was pumping it” (This latter observation does not appear in the mother’s affidavit material). The mother also told the doctor that the child was last with the father on 22 February 2014. The child was examined and no bruising or discharge was observed. The child was noted to be happy, active and playful.
The mother reported her concerns to the Department.
On 5 March 2014 the child commenced to attend day care two days each week from 9am to 5pm.
On 10 March 2014 the mother says that she noticed the child playing with her genitals and took the child to Dr O. Dr O’s notes record the following:
Mum noticed her putting objects into vagina
Visits drug addict dad on sat - unsupervised
Mum will go to police today
? child molestationOn 15 March 2014 the mother noticed a strong “unbaby” like smell when removing the child’s nappy after her return from spending time with the father. In her oral evidence she described the smell as like “sex”. After bathing the child she could still smell the odour and noticed redness around the child’s genital area and what appeared to be a milky discharge around her vagina. She took the child to an after-hours medical clinic and she was examined. The doctor said the symptoms were consistent with thrush. Tests proved negative for thrush and spermatozoa.
On 17 March 2014 the mother took the child to see a paediatrician, Dr P, and informed him that a few weeks previously, when the mother was giving the child a bath, the child had opened the mother’s make-up bag and taken a tube of lip gloss which she inserted into her vulval region. A few days later, she did the same action with a mascara container and a bobby pin (The mother does not mention a bobby pin in her affidavit material). The maternal grandmother reportedly witnessed one of these occasions (This is not corroborated by the maternal grandmother who denies ever seeing the child putting things into her vagina). The mother further informed Dr P that on 15 March 2014 the child’s genital region looked red and she had a slight discharge. Dr P examined the child with difficulty. He parted the labia to inspect her genitals and noted nothing abnormal. The hymen was intact. The earlier reported redness had settled.
22 March 2014 was the last time the father spent unsupervised time with the child. I discuss my reasons for so finding later in the judgment. The father did not spend any time with the child until 30 November 2014 although he continued to attend at the mother’s home on most Wednesdays and Saturdays to collect the child in accordance with the court order.
On 27 March 2014 while the mother was on the telephone talking to her father she says she noticed the child on the floor “inserting magnets inside herself”. She video recorded her doing so in order to rely on the footage “as evidence”. The mother says that since Christmas Day 2013 the child had been biting, scratching and pinching her and throwing tantrums before visits with the father.
On or about 7 April 2014 the police spoke to a paediatrician, Dr Q, at H Town Hospital who thought an examination of the child was not warranted and said that behaviour such as exploring and touching the genital area is typical for the child’s age.
On 9 April 2014 the mother informed an intake officer at E Group that the child was exhibiting problem sexual behaviour and she believed her ex-partner was teaching the child these behaviours. On an initial information form it is recorded that the mother alleged that the child was afraid of the father and had been displaying unusual sexual behaviours “like using mascara and lip gloss and inserting into her vagina. Bobby pins and other objects. Particularly alarming to witness her inserting magnets into her vagina”.
On 10 April 2014 a child safety officer from the Department attended at the maternal grandmother’s home to interview the mother and sight the child. It is noted that the child presented as a happy, outgoing child with limited speech. She was heard to say singular words such as “keys”, “mum” and “dad”. The child played happily on the floor while the mother was interviewed. The child was twenty-two months at this time. When asked to follow directions the child obliged without the need for the mother to repeat herself. During the interview it was noted that the mother said she had tried to obtain a protection order against the father in November 2013 but it was not granted. The mother alleged that the father had been on drugs “most of his life”, particularly “ice” and that he had shoes with hidden compartments for drugs. She said that on 22 March 2014 Mr I was sleeping at her home when the father was seen on the driveway leaning onto the balustrade. She said he was on “ice” and was “a bit stalker-y”. She said that the father had said in a loud voice “I’m going to kill you” and laughed. Police were called but did not attend (I note that there is no evidence in these proceedings that the father has ever been a drug user and the mother’s claims are inconsistent with what she later told Ms R, the family report writer, referred to below).
On 11 April 2014 child safety officers from the Department interviewed the father. He denied seeing any sexual or aggressive behaviour in the child when he had spent time with her. The father admitted being intoxicated when he attended at the unit complex where the mother lives on 22 March 2014. It is common ground he has a friend who lives in the same complex. He denied using drugs. He vaguely recalled going to the mother’s balcony when his friend was not at home. He did admit having a verbal altercation with Mr I but denied making threats. He was requested to undergo a random drug screen test. The father denied during his oral evidence in these proceedings going to the mother’s balcony and having a verbal altercation with Mr I. He denied making threats of harm.
Also on 11 April 2014 a Ms S from E Group records that the mother informed her that the father had made “a threat to kill her and the child and that she now has a DVO against the father”.
On 14 April 2014 Dr N informed the Department that he had performed a local examination on the child and there was nothing there to suggest sexual abuse or damage from inserting objects into the area.
On 16 April 2014 the Department’s investigation concluded that:
There have been no concerns identified throughout this assessment that would indicate that the child is at risk of harm in either parents care.
On 17 April 2014 the mother commenced counselling at E Group and told the counsellor that she and the child were moving between houses and she was worried about disciplining the child “after knowing what she has been through”. She also said that there had been two sessions with a psychologist, Ms T, who “would not write a report for court”.
On 20 May 2014 during a counselling session at E Group the mother informed a Ms U, psychologist, that she had “major concerns about her daughter’s safety and wellbeing” and that she (the mother) was experiencing nightmares and felt tense “much of the time”. The mother is noted to have presented as “stressed and highly anxious” and on her self-report the mother is noted to have symptoms indicating clinically significant Post Traumatic Stress Disorder including intrusive thoughts, nightmares, feeling tense/anxious, difficulty sleeping and hypervigilance.
On 20 September 2014 the mother was reading a book to the child called ‘Everyone’s Got a Bottom’. The mother pointed to the child’s bottom and said “This is your bottom” and pointed to her vagina and said “This is your vagina” to which the child responded “Daddy, daddy, dada”. Following the child’s bath the mother says she observed the child put her fingers in her vagina and say “Daddy, daddy” and describes herself as being shocked and confused. She says that later “in reference to her vagina” the child said “hurts, hurts”.
On 23 September 2014 the mother took the child to Dr O and her notes record that the mother told her that “last week” the child had touched her vagina and said “dads name. also said he hurt her” (I note that the latter statement does not accord with the mother’s evidence of what the child is alleged to have said).
On 10 October 2014 the mother says she observed the child enter her bedroom having taken off her nappy. She had a blue crayon in her hand. The mother next observed the child sitting on the floor in the lounge room watching television and saw that there was blue crayon “on her vagina”. As she went to phone her mother she noticed the child insert two fingers into her vagina. She told her not to do that and removed her hand.
On 12 and 13 October 2014 the mother says she observed the child insert her fingers into her vagina and again told her not to do so.
On 14 October 2014 the mother advised Ms V from E Group that on 20 September she had been trying to teach the child that her bottom and vagina were private. When getting out of the bath the child screamed “Daddy, Daddy, hurt, hurt”. The mother was emailed what is described as “private parts song”.
On 28 October 2014 the mother advised Ms V that she had been teaching the child personal safety.
On 2 November 2014, on entering her bedroom, the mother observed the naked child running a “tail comb back and forth through her genital area”. The mother described the comb as one used for teasing hair. It has normal ‘teeth’ and then a long narrow handle. She removed the comb from the child.
On 8 November 2014 the child was interviewed by police. The interview lasted for just over seven minutes. I have viewed the video of the interview. The child presented as a cheery, delightful child but she said little and when she did speak it was difficult to understand her. My view accords with the observations of the police officer who noted “SC [subject child] was unable to focus on any topic or even comment to a level that was comprehendible. SC played during the 93A and presented as being extremely happy and engaged with I/O [investigating officer] however would not/could not articulate further than one or two words about the play she was engaging in”. The mother was warned not to speak about masturbation or placing items inside vaginas etc. in front of the child and that doing so may create a memory simply via repetition. The warning was proffered because the mother spoke of these things in front of the child at the police station. The mother was also asked why she would read the book ‘Everyone’s Got a Bottom’ to such a young child and she said she had been advised to by E Group.
On 30 November 2014 and 24 December 2014 the father spent time with the child supervised by the maternal grandfather.
On 2 December 2014 the mother told Ms V that she had been teaching the child protective behaviours and that she found the “[E Group] resources (CD with songs) to be very catchy and helpful”.
On 24 December 2014 the father gave the child a clock with batteries, a water pistol and two yellow ducks. In her trial affidavit the mother says that the gifts were “strange and frankly inappropriate for a child [the child’s] age. The water gun was for a child three years and above. A box of ten batteries was included, already open with two presumably in the clock”. The mother interpreted the provision of these gifts as a threat, namely, that time was ticking, the father had his ducks lined, referring to the mother and the child, and that he would kill them. The mother took a photo of the gifts and during the family report interviews in 2015 she showed Ms R the photo and told her of her theory about what they meant. The father was cross-examined about the gifts and appeared genuinely shocked by the suggestion that there was something inappropriate about them or that they were intended as a threat. He said he had given the batteries to the maternal grandfather. He gave the child a clock so she could learn to tell the time and the two yellow ducks could be wound up and put in the bath. He denied the gifts were intended as a threat. I accept his evidence.
2015
On 27 March 2015 Mr W, family consultant, conducted interviews for a s 11F report. Despite noting the serious allegations made by the mother against the father, Mr W recommended that the child spend time with her father and opined that she is likely to benefit from doing so. He recommended that the time be supervised until the Court determined the accuracy of the claims. During his assessment, Mr W noted the child to be a socially confident child who separated easily from her mother and related to Mr W in an age appropriate manner. She seemed “blessed with a happy, easy temperament”. He was of the opinion that the mother “failed to recognise how her heightened anxiety was ‘picked up’ by the child”. In the interaction between the child and the father he noted her initial “slightly curious facial expression” when the father entered the room but then she responded with a hug to the father and “did not appear anxious or avoidant”.
On 17 April 2015 the mother collected the child from her mother’s home at 8am. It is unclear on the evidence how long she had been in the care of the maternal grandmother i.e. whether it was overnight or just from earlier that morning. Upon the mother picking her up, the child said “hurts” and when the mother said “what hurts?” the child responded “vagina hurts”. The child had not seen her father since 24 December the previous year.
Between 2 May 2015 and 4 July 2015 the father spent two hours each week with the child at K Contact Centre supervised by Ms L. The mother again ceased time.
On 9 May 2015 the mother says the child walked up to a stranger and hugged him, lifted her dress and asked if he wanted to see her undies.
On 11 May 2015 during a counselling session with Ms X from E Group the mother reported that the father takes the child away from the contact centre where his visits are meant to be supervised, to unknown locations (I note that there is no evidence in these proceedings to support that assertion made by the mother).
On 1 July 2015 the mother says that the child blurted out words to the “warning sign song” namely “that’s my body telling me, that I’m having a no feeling”. The mother confirmed that this was one of the songs the child learnt from a CD provided by E Group.
On 23 August 2015 the father spent time with the child from 9am until 4pm supervised by his de facto partner, Ms F. The mother says that after the child returned from spending time with the father she refused to sleep on her own.
On 28 August 2015 the father spent time with the child from 9am until 4pm supervised by Ms F. The mother says after the child returned from spending time with the father she started “shovelling handfuls of butter into her mouth from the butter dish”. The following day the child seemed angry and threw tantrums for no apparent reason.
On 6 September 2015 the child spent Father’s Day in the company of the father, Ms F and various members of Ms F’s family. The mother says that before the visit she took a video of the child and when she told her she was seeing her father she grabbed her vagina. No video was produced. The mother says that after returning from spending the day with the father she again started to “shovel handfuls of butter into her mouth”. The mother says that when she tried to distract her and suggested she have a bath, the child replied “Yes, to get all the germs off”. When the mother got the child out of the bath she complained “My bum hurts”. The mother inspected the child’s bottom in the living room and noted it to be “very red” and she had a “rash which spread from her anus to her vagina”. The mother took a photograph of the child’s genitals with her legs spread wide apart. What is apparent from the photo is a pinkness on part of the vulva, perineum and around the anus extending slightly out into the bottom cheeks. The mother says she asked the child why her bottom was sore and the child replied “Daddy did it. He touched my vagina” and then said “Mummy look after me. Daddy hit me, hit me at the back and made me cry”.
After taking the photograph the mother then made a video recording with her phone. The child is naked and kneeling on the kitchen bench. The mother asks the child a series of questions. Her questioning becomes more and more insistent and she repeats on six occasions “what happened to your bottom”. After the sixth time the child says “daddy did it. He do it all day”. The mother repeats “He do it all day” and the video abruptly stops.
On 10 September 2015 the mother says that the child said “Daddy licks me at my toes”.
During the mother’s family report interview with Ms R on 14 September 2015 the mother told Ms R that after the visit between the child and the father on 29 August she said to the mother “I’m so sorry mum I didn’t mean to make you cry”. She also told Ms R “I cry a lot, I’m traumatised at the moment. I’m worried the whole time she is with her dad, is she okay, is she safe, who she is with, I can’t relax at all.” Of the father, the mother said “I feel he’s out of control and a frightening person”.
On 18 September 2015 the mother says that the child threw tantrums throughout the day. She pinched and bit the mother. She was disobedient and very clingy and started wetting the bed despite being toilet trained since age two and a half. The mother says she was “often constipated”. She said to the mother “Can you lick me. Can you lick my bottom mummy.” The mother says she was shocked and told the child that no one is allowed to lick her. Later in the day the child said “Can I tell you something?” And then said “Daddy touched my bum. He did it all day. It was scary, he made me cry.” The mother says she was distressed and told the child that she would keep her safe. That evening the mother says that she observed the child sitting on the couch inserting her finger into her anus and said “daddy did it”. The mother says she continued this behaviour for forty seconds and then pulled her finger out of her anus, looked at the faeces on it and stuck it in her mouth. The mother video recorded this incident because “I knew I needed evidence to show what was happening especially due to her disclosures earlier on in the day”.
In the video recording the child is lying on her back on a couch naked from the waist down. She appears to be watching television. She inserts her finger into her anus. The mother records for forty seconds as the child inserts her finger into her anus and ultimately removes her finger and sucks faeces off her finger. The mother asserts that the child did not know that the mother was videoing. The child on a number of occasions looks right into the camera. Given that the mother was using her phone which she demonstrated as being held out in front of her, I do not accept that the child was unaware that her mother was videoing. The mother made no move to intervene in that forty seconds not even to prevent her child putting her faeces covered finger into her mouth. The child does not say anything while being filmed. The mother describes this video to Ms R, the family report writer, as depicting compulsive masturbation. It does not.
On 19 September 2015 the mother says that the child was quite aggressive and on one occasion bit her. She describes the child having her hands up her pants on numerous occasions and that she kept approaching the mother “growling, making slurping noises, animal like behaviour, licking my body and, in particular, my thigh”. Later in the day she observed the child touching her vagina with her fingers inside and into her anus. She told her to stop and video recorded the child because she says the child had been compulsively licking her thigh. The recording shows the child kneeling while the mother is sitting on a couch. The mother is wearing jeans and the child licks her mother’s thigh (through the jeans) three times. There is nothing sinister in the child’s actions. They appear to be part of play. This recording was taken at 6.30pm. The mother makes another recording at 6.45pm. The child is watching television and appears to be engrossed in the program. She is wearing a pair of pants and briefly puts both her hands in her pants. She thereafter scratches variously her genitals, her leg and her knee. She pulls at her panties and appears to be uncomfortable. There is nothing noteworthy in the video which goes for one minute and forty-two seconds. Another recording is made, said to be a continuation of the previous one. The child continues to be engrossed in the television program. She continues to pull at her panties and on a couple of occasions during the forty-two second recording pushes her finger into her genitals through her pants. Her actions could certainly not be described as masturbation. The mother’s description of this video in her affidavit material is not consistent with the actual video recording. Later in the evening the mother says the child said without prompting, “Daddy played with my vagina”. Another recording was taken at 6.55pm. The child is seen climbing off a chair and onto a bed where she rolls around. She does not appear to be wearing any pants. She says “He plays with my gina”. After a pause the mother asks “Who?” and the child responds “Daddy play with my gina”. The child appears happy.
The mother contacted police on that evening and insisted that the child be interviewed again by police despite it being pointed out to the mother that “due to the child’s young age, a Police 93a statement may not result in any disclosures and could possibly be emotionally damaging”.
On 20 September 2015 the child was interviewed by Detective Sergeant Y and Constable Z while the mother and maternal grandmother waited outside. The notes reveal the following:
…
Child asked directly about ‘licking’. Child talked about licking her mummy’s face and her Nanna. … she demonstrated on her own hand by demonstrating with her tongue. The behaviour appeared very innocent and more attention seeking than sexually motivated.
Child asked about parts of her body and she named her genitals as her “botty”. She did not distinguish between her vagina or her bottom. …
Child then made comment about “Nanna lick my botty”. Attempts were made to clarify this and child giggled and laughed … she repeated “she licked my botty”.
… Child described her grandmother as black hair, female, sitting with Mummy.
Child never mentioned her father under any form of free narrative …
Child then asked directly about her father and what she did with him. Child stated they play games all day. …
Child’s demeanour never changed throughout the whole 93a and she presented as very happy, animated but restless. No topics appeared to cause any visible signs of distress or change of behaviour. Child was friendly, but only engaged for very short periods consistent with her age development. …
A/DS [Y] and PCSC [Z] then accompanied the child back to the waiting room where the mother and maternal grandmother were seated. The child was walking approximately 1.5 metres ahead of the Police. Police observed that the maternal grandmother was comforting the mother who was visibly crying. The child was focused on the toys. Police then requested that the mother accompany them to an adjacent room to review the statement.
Police explained to the mother the lack of disclosures as above and the references to Nanna. Mother made a comment, “I find that very hard to believe, she just told me as she came out that ‘I told them Mummy, I told them that Daddy touches my bum’. She further stated that was the reason she was crying, because her daughter’s statement upset her so much and she was so relieved that she had disclosed to the Police. This was questioned, as no such conversation was observed or overheard and the Mother was already crying upon her daughter entering the room and the fact that the child never used the term ‘bum’ when speaking with Police, or made any statement about her Daddy touching her.
…
The mother insisted on showing Police photos and videos she had taken on her phone of the child. … The mothers explanations for the redness [in a photo of the child’s anus] was speculated as the father licking her bottom, licking his finger and inserting into her bottom, ejaculating on, or in her bottom or some similar sexually based explanation.
The Mother then showed Police an explicit video of the child with no pants stick her finger in or near her bottom. The child then put her finger in her mouth. … The mother admitted that the child had been constipated, but was adamant that the behaviour must have been taught by the father, … It was repeatedly explained that the only persons qualified to say whether the behaviour was normal were child paediatricians or expert child psychologists in child development and that without disclosures of any kind it would be very premature to automatically assume it was sexually motivated.
Upon speaking with the mother on the phone prior to the interview, she made reference to the child compulsively masturbating since the contact visit with her father, a behaviour which she had allegedly not exhibited for some period. The mother then showed Police a video of the child dressed in underwear. The child touched and scratched her upper leg, touched underneath her undies on the front of her vagina and touched her bottom. The child showed no pattern to the behaviour and was focused on something else, possibly the television. The video did not appear to depict masturbation, but was just the child randomly touching herself. The mother was asked about the claims of repeated masturbation and whether this video was supposed to demonstrate such behaviour. The mother then stated that the behaviour had only just started in the last 2 days.
The mother then showed Police a short portion of a video of the child in which she makes a statement similar to “he played with by ginie (pronounced jynie)”. Mother is recording and asked who and child says “dad”. The video then ends. The video lacks context and ginie was not a word used by the child to Police in talking about her private parts.
The mother is adamant that the child has been sexually abused whilst in the father’s care. There were no disclosures to support her claims. The mother has made previous claims and there are ongoing custody disputes. Due to the very short periods of time the child has been unsupervised in the father’s care, it appears highly unlikely that he would have had the opportunity to commit such blatant offending, particularly when he has been accused previously of abuse.
(I note that DS [Y] was cross-examined about this interview and her observations made after the interview with the child. I accept her evidence.)
On 21 September 2015 the mother says that the child undressed a koala doll, turned the koala upside down, spread its legs and put her toy doctor’s tweezers in there saying “I am touching her vagina”. Later that day the mother says that the child again said that the father had touched her bottom.
On 23 September 2015 the child was observed by child safety officers of the Department at Departmental offices and presented as a “bright and bubbly three year old – lots of smiles. She was appropriately dressed and looked clean and healthy”. The mother was interviewed by two child safety officers and her solicitor was also present. The mother provided the following information:
a)Unsupervised visits commenced on 23 August 2015 and that there had been three unsupervised visits, the last being on 6 September 2015;
b)She noticed behavioural changes in the child after the first unsupervised visit (23 August 2015), namely, she did not want to have a bath, poured water over her head and said her ‘bum hurt’. After the bath the mother noted the child’s ‘bum’ to be red and when she asked her why she said “daddy hurt my vagina”. The mother stated that she had video recorded this ‘conversation’ (I note that no such video recording was produced in the proceedings);
c)In the same conversation, the child is alleged to have said that her mother had to take care of her and that her father had hit her on the back;
d)Ongoing issues with getting the child to have her bath and change her clothes;
e)Increased defiant behaviours including hitting, scratching and slapping the mother;
f)Since the Father’s Day visit on 6 September 2015 the mother stated that the child has been insisting on sleeping with her and has become afraid of the dark and has generally become clingy;
g)The child said that she did not like the father’s new partner, Ms F;
h)The child has her clothes changed during visits and her hair is changed (I note the evidence from Ms F and the father corroborated by a video recording that on one occasion the child was at a beach with the father and Ms F and her pants got wet and Ms F says that they bought her a new pair of pants and changed her and the wet pants were returned to the mother in a plastic bag);
i)During a supervised visit the child came home with a bruise on her bottom which the supervisor stated occurred as a result of the child falling on playground equipment;
j)The father refused the mother’s offer for the child’s ‘puffer’ to be brought back to the changeover centre and said he would buy one from the chemist. The mother said this was an example of the father not caring for the child;
k)She has the incidents of the child inserting lipstick, mascara and magnets into her vagina on video (I note that no videos showing these incidents were produced. The mother said she had been advised by E Group to delete the video of the child inserting the magnets into her vagina made by her on 27 March 2014. E Group declined the mother’s request to corroborate that advice on the basis that there was no note to that effect on their file);
l)Dr P provided a report last year stating that the child was being sexually abused (I note that I do not regard that as being an accurate statement of the conclusion reached by Dr P);
m)The behaviours she has noted ceased while the father was not spending any time with the child which is why the mother knows that the father is abusing her (I note that this statement is not supported by the evidence before me where the mother says she observed many of the behaviours on various dates between September 2014 and 30 November 2014 when the father was not spending time with the child);
n)The child approaches strangers and lifts up her dress to show her vagina/underwear;
o)The child said there is a big bad wolf in her dress and that she does not like the big scary monster;
p)On 18 September 2015 the child said that her mother could lick her bottom;
q)On 19 September 2015 she videoed the child sitting on the couch with no underwear on and she put her finger into her anus and licked faeces off her finger and also on this day she was licking her mother on the thigh area (as noted above the child has pants on in the video recording in evidence and the mother is wearing trousers);
r)She had videoed the child twice inserting her finger in her vagina while she was watching television and unaware that she was being filmed (I note that there is only one video recording of this type in evidence and the child is clearly aware she is being recorded);
s)After two unsupervised visits the child suffered with constipation which was remedied with Movicol;
t)On 21 September 2015 the child was playing with her koala and saying “I’m touching its vagina”, she then took its pants off, turned it upside down and stabbed a pair of toy tweezers into the vagina;
u)The child would not speak to police because she would find it intimidating (I note this is inconsistent with the evidence before me);
v)The mother’s solicitor told the child safety officers that Ms F had provided an undertaking to be present;
w)The child has attended day care two days a week for fourteen months;
x)The mother is adamant that the child has been sexually abused by the father; and
y)The father is manipulative and a liar and wants to continue having power and control over her and will use and abuse the child to get back at her.
On the same day the child was again seen by Dr P, paediatrician.
On 25 September 2015 the child was interviewed at her home by child safety officers. The child presented as “clean, friendly and happy and keen to go into her bedroom to play”. It was noted by the Departmental officers that the mother had set up a koala bear and toy medical kit in the lounge room and after about two minutes in the bedroom the mother interrupted to bring in the koala and toy medical kit stating that this would be required for the interview. The child showed no inclination to play with the koala or the toy medical kit preferring to play with other toys in her room. The mother entered the bedroom again after about ten minutes stating that the child loves to play with her toy medical kit however there was no evidence of this throughout the interview. The child was noted to be over familiar with the child safety officers. She kissed one of the child safety officers on the cheek and sat on both officers’ laps. The child did not answer any questions about the father. The interview was said to have taken a “considerable amount of time”. During the interview the child made “no disclosures of being sexually abused by her father or any other individual” and “did not display any inappropriate sexualised behaviours”.
On 2 October 2015 the mother says the child said “My gina hurts. Daddy did it. Daddy touched my bum”. The child commenced counselling at E Group on this date and I note the counsellor (Ms V) notes that the child was difficult to understand “consistent with developmental age” and while she did not answer questions asked by Ms V she often “repeated words that the counsellor said”.
On 5 October 2015 the mother says the child pulled the mother’s sarong aside and tried to lick her vagina.
On 6 October 2015 the director of the AA Children’s Centre was interviewed by Departmental officers and said:
a)The child attends the centre two days a week and is a very pleasant child;
b)Over the past three months there have been separation issues for the child from her mother which was slightly unusual for a child her age however the child does settle quite well;
c)There have been no issues of the child masturbating or putting objects into her anus or vagina; and
d)The mother recently informed the centre that the father had been sexually abusing the child.
I note from the tendered records that the child attended day care all day on each Tuesday and Thursday during the period 25 August 2015 to 5 November 2015 and despite the mother asking the centre to pay particular attention to any unusual behaviours no behaviour as allegedly observed by the mother was noticed at day care nor any statements indicating sexual abuse.
On 7 October 2015 the mother says the child said “Daddy touched my bum bum.” The mother says that the child made this statement several times before she started video recording the child. In the video the child is seen on the floor rolling around and saying “daddy touched my bum bum. Daddy touched my bum. Daddy touched my bum”. The mother then says “and what happened next?” The child says “Everything. Mummy daddy touch my bum bum. Daddy touch my bum. Let’s touch a body. A body.” She then says something that is indistinct and proceeds to play with her toys. It sounds like a chant of some sort. The child shows no particular emotion. She seems content.
Also on 7 October 2015 Ms F was interviewed by Departmental officers and stated that on the three visits on 23 August, 28 August and 6 September 2015 she was present the whole time and was responsible for taking the child to the bathroom. On these occasions and on other occasions when she has been present she has observed the child to be happy and she has had no concerns about her going to strangers. On the visit on 23 August 2015 they went to a friend’s child’s birthday party at BB Park. On the visit on 28 August 2015 they went to H Town Show and on 6 September 2015 they went to Yum Cha, Big W and her parent’s home.
In an email dated 7 October 2015, the mother alleged to a child safety officer that the child’s behaviour is “out of control”. She said the child was irritable, aggressive and had run away from the mother when at the shops and had refused to take off her dress and have a bath for two days. The child had also been unwell requiring her inhaler and prednisone medication. The mother was also sick during this period with throat infections.
On 8 October 2015 the father was interviewed by child safety officers and denied sexually abusing the child or exposing her to sexually exploitative material. He denied being alone with the child on 23 August, 28 August or 6 September 2015 and said that prior to that, his time in 2015 was supervised at a contact centre. He expressed concern that another person may be sexually abusing the child. He has never observed the child to talk about her private parts or display any of the behaviours described by the mother.
On 10 October 2015 the mother says the child said “Tickle my vagina. Can I sit on your head”.
On 12 October 2015 the mother says the child asked if she could touch her “gina”. The following words then appear in brackets in the mother’s affidavit “(cause daddy did it)”. Later the child is alleged to have said “daddy is scary, he is a monster”.
On 12 October 2015 Mr I was interviewed and he said:
a)The father threatened to kill the mother and the child in July 2015 (I note that the only evidence in these proceedings of an alleged threat to kill was on 22 March 2014);
b)The maternal grandmother can be a bit over the top as she does not stop talking about allegations to the mother and at times this is in front of the child;
c)The child would have to be aware of mother’s anxiety;
d)He temporarily moved to J Town in September 2014 because he feared for his own safety – the father would give him the ‘gun salute’ at change over (I note that the father did not spend time with the child from March to November 2014 and there is no evidence he saw the father during this time);
e)He greatly cares for Ms Hurley and they need help – he is trying to get her back into her career or study;
f)He has not observed any of the behaviours described by the mother.
On 15 October 2015 the mother says the child asked if she could put a “book in my gina”.
On 16 October 2015 the mother asked the child if she wanted to see the father. The child, who was watching a movie, replied “He made me lick his penis, he is scary, he is a monster”. The mother asked “who did?” and the child said “daddy”. On this date the child had a counselling session with Ms V who noted that the child stated that people wear clothes to cover “private parts” and pointed to a female doll and said “gina” whilst pointing in between the doll’s legs. Again the counsellor notes that the child was difficult to understand at times “consistent with developmental age”.
On 18 October 2015 the mother says the child inserted a plastic object in her bottom and said “there is a flower in my bum”.
On 19 October 2015 the mother says while driving in the car and speaking to the maternal grandmother on speaker phone the child said “Daddy got angry Nan. He made me cry. Daddy had a bath with me. He got bigger. He got spots on my face. I don’t like spots on my face. Daddy touched my bum. I pushed him. He is going to the naughty corner”. The mother ended the call and pulled off the road. The child kept saying “Because daddy touched my bum, daddy touched my bum, Nan. Daddy touched spots on his bum. I don’t like spots on his bum. Daddy touched my bum, Daddy touched my bum, Daddy touched my bum. Daddy drinks my bum. Daddy kisses my bum. Daddy kisses my bum Mum. Daddy kisses my bum”. The mother says she felt sickened and had tears streaming down her face. The mother video recorded the child at 12.54pm in the car. The child is pulling at a doll between her legs and says in a somewhat sing song voice “Daddy touched my bum and then my bottom” and then something unintelligible. She then smiles into the camera. There is no sign of distress. Approximately fifteen minutes later the mother again video records the child who says “Because Daddy touch my bum, Nan. Daddy touch my bum Nan. Daddy touch my spots on his bum”. The mother says “Tell me more”. The child says “And Daddy touch spots on his bum. I don’t like spots on his bum”. While speaking the child has a doll on her lap and another toy in her hands. She appears to look into the camera on a number of occasions and smile. She uses a sing song voice and the last sentence is said playfully to her toy. When the mother was asked by Ms R on 3 November 2015 what the reference to ‘spots’ meant the mother responded “It’s obviously sperm”.
On 20 October 2015 during a counselling session at E Group, the mother recounts an incident that occurred in the car on 19 October 2015 while she and the child were talking to her mother and what the child allegedly said on 16 October 2015.
In an email from the mother to Dr CC, psychologist, dated 20 October 2015 the mother states that the child is “obsessed with sexual thoughts” and has blurted out disclosures approximately thirty times in six weeks. She states that since May 2015 she had had a “challenging relationship with the child” and describes her biting, kicking, pinching and scratching her “for no reason”. The mother stated that she felt physically ill at the thought of the child seeing the father during the interviews for the family report. The mother attributes the behaviour to the “trauma” she has experienced. She instructs Dr CC, “We need to highlight the psychological and emotional risks and further damage it will cause the child”. She also states “I am currently on the Single Mother Pension and have been in the court system for 4 years dealing with coercive controlling family violence which has deprived me of my liberty and human rights and have been unable to pursue any employment because this has been my full time job”.
On 23 October 2015 Ms V from E Group was interviewed and said that the child had not made any disclosures to her. The child also had a counselling session with Ms V on this date during which the child named several figurines as “naughty” and threw them underneath the mat stating they were “monsters”. She gave the counsellor a hug when leaving.
On 27 October 2015 the mother says the child said “Can you tickle my bum? Daddy touched my gina” as she ran outside the bedroom. She said “Am I old, am I old, Daddy touched my gina. Daddy touched my gina. Daddy touched my gina. Can you tickle my bum? Can you tickle my bum”. The mother video recorded the child at 7.15pm after she had allegedly made the statements attributed to her. In the video the child is seen on the floor laughing and hiding from the camera. She climbs on the bed and rolls over to the other side, still laughing. She says “Da Da Daddy Daddy touch my gina Daddy touch my gina”. She is gleeful and jumps and bounces on the bed and laughs.
On 29 October 2015 the maternal grandmother was interviewed and said a number of things including:
a)She and the mother had spent fifteen months healing the child from being sexually abused by the father;
b)The child said to her “daddy touched my gina”;
c)On 19 October 2015 the child said “when I was in bath daddy got bigger she pushed him away don’t like spots on his bottom he needs to go to the naughty corner”;
d)On 23 October 2015 the child woke up screaming and when she asked her about the nightmare she told her “yes it was about daddy, daddy did it”;
e)Another occasion she came home from a visit with her father and wanted a bath and poured water over her head. She said she needed to get rid of the germs. The child never liked having a bath and one could never pour water over her head without her getting upset but she didn’t on this occasion;
f)The germs and spots on the face are linked;
g)On 24 October 2015 during a phone call the child said to her “I’m a ghost; daddy touched my gina and ran away”;
h)She believes the father has sexually abused the child during his unsupervised visits;
i)In the past she was the one that observed the odour of ejaculation in the child’s nappy and the mother took the child to the doctor;
j)She is convinced that the father masturbated and ejaculated into the child’s vagina and remnants were left in her nappy;
k)The child has been traumatised by being sexually abused by the father and her behaviour is out of control and she talks about sex stuff all the time;
l)If Ms F was there at contacts the whole time then she must be party to it;
m)She would not put it past the father to sexually abuse the child to get back at the mother;
n)The father is the type of person who would kidnap the child and jump off a bridge and kill her.
As part of their assessment, the Department concluded the following:
…
Overall, whilst the child’s reported behaviours are concerning and suggestive of her possibly being subjected to some form of sexual abuse, caution needs to be exercised as these behaviours have only been directly witnessed by Ms [Hurley]. …. A number of photos and video recordings were viewed which were all taken by Ms [Hurley] that caused great concern as to what is going on for the child however the difficulty in assessing the recordings is the context of the recordings, what came before and after, is unknown.
…. at the conclusion of this assessment, the person responsible for this harm cannot be named. … A number of factors have been taken into consideration before making this assessment such as:
·Mr [Melton] ceased having contact altogether with the child in 2014. This then recommenced in May 2015 at which point it was supervised … At the end of August 2015 Mr [Melton] proceeded to unsupervised visits however an agreement was in place whereby Ms [F] would be present. … Ms [F] was adamant that at no time was Mr [Melton] alone with the child. Given this information it is highly unlikely that Mr [Melton] had the opportunity to abuse the child.
·The parents are and have been involved in highly contested FLC matters for some time in regards to custody and access. The relationship between the two is highly conflictual and has included multiple allegations by both parties. Given this it is hard to determine where the truth may lie and also raises questions around their motivation and the possibility that they are fabricating or exaggerating certain information in order to paint the other in a bad light. In addition, [Ms Hurley] has been very clear in stating that it is her goal for [Mr Melton] to have no contact with the child, supervised or otherwise.
…
It is a great concern that Ms [Hurley] has withheld the child from ongoing contact visits with her father. This decision by Ms [Hurley] does not show that she is prioritising the needs of the child. It is my assessment that, at a minimum, supervised contact between the child and her father occur. This matter however is best left in the family court arena where it is currently.
It is assessed that there will be no further departmental intervention in relation to the child protection concerns for the child.
The child had a counselling session with Ms V on 30 October 2015 at 10am and the child said that she did not want to listen to the counsellor when she started to read a book ‘The Invisible String’ but recognised the book ‘Everybody’s got a Bottom’ and sat beside the counsellor while this was read. The child tried to turn the page over as the counsellor was labelling body parts (as penis, vagina and bottom) and appeared disgusted and looked away when the counsellor spoke about private parts and asked where they were. The child required prompting to engage in discussion about feelings. The child engaged in imaginative play with symbols in the sand tray and buried most of the symbols and moved “dad” out of the sand tray and placed the male doll in the doll’s house stating “Daddy is in time out … for a very, very long time”. The child did not elaborate when asked why ‘Dad’ was in time out and for how long. She then moved a prince figurine into the sand pit and when asked who the prince was she said “another dad … sometimes people have two dads”. The child nodded her head when asked if she had two dads.
Also on 30 October 2015, the child and the father were observed for an hour commencing at 2.30pm by Ms R for the purposes of the family report. Ms R describes both the mother and the maternal grandmother as “emotionally heightened” when they brought the child into the interview venue. She also says the mother was clearly not happy about having to bring the child. Ms R observed the child slap her mother although not hard and the mother said “she just slapped me”. The child was not reprimanded. Ms R described the child as appearing to be an intelligent and strong willed little girl. Ms R gained the impression that the mother and maternal grandmother did not like to get into conflict with the child. Ms R thought it quite inappropriate that the maternal grandmother tried to bring up in front of the child how inappropriate the proposed observation with the father was given the sexual abuse allegations.
At the commencement of the observation session between the child and the father Ms R reports that as soon as the child saw her father her eyes lit up and with a big smile she jumped into her father’s arms. The child asked about Ms F who was at work. Ms R describes the session as pleasant with the father going at the child’s pace and that the child was affectionate to him. At the end of the session she appeared happy but when she was returned to the mother, Ms R reports that the mother appeared annoyed and talked about the safety plan and of how unhappy she was about having to present the child. She was strapping the child into her push chair at the time and the child was protesting.
The mother says on the way home from the interviews with the family report writer the child repeatedly used phrases such as “Daddy touched my bum”; “Daddy touched my gina in the bath”; “private parts nobody goes, head to toes, only me”; “Bottom my bottom”; “The child you’re not touching your gina like that”; “bum, bum, bum, bum, a bum”. At 4.30pm the mother and maternal grandmother were in the car and the mother video recorded the child. In a sing song voice the child says “In the bath at Daddy’s” (she is smiling) “I (indecipherable) stay in the bath. I want to get in the bath”. And the mother says “no no no” before the recording stops. The mother says it stopped because the car started to move and her words were directed to her mother to get her mother to stop driving. At 5pm the mother starts recording again. The child is still in her car seat and the car is now moving. Initially the child is not visible as the camera is focussed on the car seat but then the camera moves to the child. The child says “my private part (indecipherable) Bot bot bot bottom my bottom my bottom my bottom my bottom my bottom my bottom my bottom. The child the child you not touching your gina like that. Oh not your bottom some else. (indecipherable) Daddy touch my bum bum. Daddy touch my bum bum bum bum”. The child looks into the camera and pushes her feet towards the camera and says “I’m just getting angry mum. Bum bum my bum my bum a bum bum bum bum bum.” Throughout this recording the child is playing with a naked Barbie doll. There is nothing particularly remarkable about the child’s demeanour. She certainly does not appear to be upset or distressed (I note that the maternal grandmother also gave oral evidence about this event. She became somewhat hysterical and insisted that the child, whom she repeatedly referred to as “my child”, was traumatised and that this was obvious from the video recording made by the mother. She also asserted that the child had “repressed memory” and had lived in fear of the father all her life).
The maternal grandmother also produced to Court a number of video recordings she had made on 30 October 2015. The times of the recordings were 11.38am; 11.40am; 11.41am; 11.46am; 11.54am; and 11.56am. Upon review of the recordings I note the following things:
a)The child is aware she is being filmed;
b)She repeatedly puts a large toy elephant in front of her face and peeks over the top of it to look at the camera;
c)She giggles repeatedly;
d)She says among other things “Barbie touched my bum”, “Daddy touched Barbie’s bum”, “I have a bath at daddy’s”, “Daddy touched my bum bum”;
e)At one point she says “You can do it [B]. It’s ok [B]” and “why do you do baby talk”;
f)The maternal grandmother says to the child “Talk properly. Nanna wants you to talk”; and
g)The recording is repeatedly stopped and recommenced.
On 1 November 2015 the mother says she found the child with “the pointy end of a lollipop inside her vagina”. The child is naked from the waist down sitting on a couch. The recording continues for a number of seconds before the mother intervenes. The recording includes a close up of the child’s genitals.
During a telephone call with Ms R on 3 November 2015 the mother said that “The child thinks sexualised thoughts every day, and says ‘daddy touched my bum, daddy touched my gina’, she chants this everyday”.
On 6 November 2015 the mother says she saw the child putting her fingers into her vagina and then into her anus and licking all her fingers. The child also had a counselling session with Ms V on this date and the child was observed to boss her mother around and kept closing a book the mother was trying to read to her called ‘When I’m Feeling Sad’.
On 10 November 2015 during a counselling session with Ms V, the mother reported that she had submitted a complaint to the Department in relation to her meeting with them on 4 November 2015. She told Ms V that during the meeting she was told that the child had been “coached, was lying and lives in a fantasy world”. She said that she feels no one believes her or will listen to her.
On 12 November 2015 the mother removed the child from the AA Child Centre where she had been attending each week since March 2014. This is despite the fact that the mother told Ms R that the child was very happy there and it is a nice environment for her. According to Ms R that decision was regrettable because it was one constant environment where the child was sheltered from the high parental conflict and ongoing tensions. During the trial, the mother initially refused to say where the child was currently attending day care.
On 16 November 2015 the mother says the child said “My gina is itchy. Hurts. Can you put some oil on it”.
On 20 November 2015 the child had a counselling session with Ms V and the counsellor read a book to the child called ‘Have you Got a Secret’. The child and Ms V were discussing feelings and using ‘bear’ cards. The child indicated that she was feeling sad and when asked why she is said to have “disclosed” - “daddy … daddy’s naughty”. Ms V then repeated word for word what the child had said and the child is said to have responded “Daddy did naughty things … Daddy’s naughty and needs to be in a naughty corner” (I note that the ellipsis in both quotes appears in the notes made by Ms V and no explanation is provided of what words were left out).
On 23 November 2015 the mother says the child was sliding a fly swat through her genital area.
On 27 November 2015 the child had another counselling session with Ms V. Her notes reveal that when the child arrived she said, as she was standing between her mother’s legs, “I want to tell [Ms V] about Daddy” and after a long pause started saying the name “[Ms F]”. No further comments were made and for the rest of the session she seemed happy and was observed laughing and giggling. At the end of the session the mother expressed anger at how she was treated by the Department and was aggressive and kept interrupting the counsellor and said “I cannot understand how [the child] will disclose if she is not prompted to do so”. The mother was advised that getting the child to disclose sexual abuse was not the focus of counselling at E Group and warned her of the risks of encouraging a disclosure.
On 21 July 2013 the child witnessed an unpleasant altercation between the father and mother at a local McDonalds Restaurant. It involved the mother yelling at the father and her throwing a receipt at him. In the scheme of things it was a minor incident and the father was foolish to report it to police. However, it does evidence the child being exposed to tension and conflict between the parties which would no doubt have been upsetting for her despite her age.
On 11 November 2013 the mother made a complaint to police that the father had breached a temporary protection order. The police reviewed the complaint and determined that no breach had occurred.
On 20 November 2013 after a contested hearing the mother’s application for a protection order was dismissed. The reasons for the dismissal are not in evidence and each party gives a different account of why the application was dismissed although I note the mother’s concession that the magistrate said the mother was not a credible witness.
On 22 March 2014 the mother alleges that the father made a threat to “kill them all”. She relies on this threat for breaching a court order and denying the child any opportunity to spend time with her father until 30 November 2014. The mother did not personally hear any threat. She was told of the threat by Mr I. Mr I deposes in his affidavit to the father being in an intoxicated state and stating “I am going to kill all of you”. Yet the complaint to the police made on 22 March 2014 notes that Mr I alleged that the father had threatened him saying “I am going to kill you”. There is no record on the actual day of the event that the threat was made to kill all of them. This is consistent with what the mother told the Department on 10 April 2014 i.e. that the father had said “I am going to kill you” and then laughed. The father was at the block of units where the mother lived as he went to see a friend who lives in the same block of flats. He denies going to the mother’s balcony and making the threat and denies having said to police that he could not remember much about the incident because he was intoxicated. I consider it more likely than not that the police records correctly record the father’s comments but I reject the mother’s evidence and Mr I’s evidence that the threat made was that he would kill them all. I consider it more likely that the complaint made to police and the Department at the time reflect what was actually said and while it is of concern that the father made the statement to Mr I, I reject the mother’s evidence that she considered her life and the child’s life to be at risk. I consider it more likely that the mother has used the threat to her advantage in these and other proceedings. I reject the mother’s evidence that she was “on the run” for four months. She provided no detail of where she lived during that time if she did not live at her home. I note Mr I’s evidence that despite the threat made to him he moved to H Town after the threat and remained there until September 2014. I reject any suggestion that he left H Town because of any fear he had of the father but that he left because he had broken up with the mother.
On 27 March 2014 a temporary protection order was made naming the mother and the child as aggrieved persons and prohibiting the father from committing an act of domestic violence, contacting the mother, approaching to within 100 metres of her home etc. with the exemption if it is for the purposes of having contact with the child as set out in writing or in compliance with a court order.
The mother instigated three Domestic Violence Applications against the father in all. Two were withdrawn by her and the third was dismissed after a contested hearing.
conclusion about sexual abuse and family violence allegations
The mother argues that the child will be at risk of sexual abuse or serious psychological harm if she spends time with the father. In support of her argument she relies upon the following:
a)What the child has said to her and to her mother which she interprets as disclosures of abuse by the father;
b)The child’s so-called sexualised behaviour;
c)The child’s ‘out of control’ behaviour;
d)The redness in her genital region on two occasions and a whitish discharge on one occasion;
e)The child’s resistance to seeing the father;
f)The opinion of Dr P; and
g)The opinion of Dr CC.
The mother alleges that the child was sexually abused by the father during both unsupervised and supervised time and that the supervisors, Ms L and Ms F were aware of the abuse.
The father last spent unsupervised time with the child in March 2014 when she was twenty-one months old and I reject the mother’s repeated assertions that the time spent on three occasions in August/September 2015 was unsupervised.
Ms F provided an undertaking to the Court to be present at all times when the child was spending time with the father and I accept her evidence that she complied with her undertaking. Having regard to the nature of the allegations against the father and the difficulties he had experienced in spending any time with the child I do not accept that he would have risked the consequences of a breach to the undertaking. I accept that on 6 September 2015 (Father’s Day) the child spent the day with the father, Ms F and members of her family. I have viewed video footage of the child on this day apparently having a marvellous time in a playground with other children.
It is the mother’s case that on this day the father had a bath with the child and ejaculated over her face. There is no evidence to support the accusation. I find the interpretation given to the words used by the child and upon which the mother and maternal grandmother rely to support this accusation to be fanciful. It demonstrates the perverse nature of their beliefs that they maintain the accusation knowing that Ms F maintained that she had abided by her undertaking and then suggesting that she must have been a party to such an act.
I reject the mother’s evidence that the child was abused while supervised by Ms L. Ms L is an experienced supervisor who was aware of the seriousness of the allegations made against the father and I accept her evidence that she diligently undertook her role despite significant demands made of her by the mother. I accept her evidence that the mother made a threat to her that she would regret it if she did not cease her role.
The mother and maternal grandmother maintain they believe the abuse occurred, and that the father is the perpetrator, because the child has only ever implicated the father. That is not so. The child has made a statement implicating the maternal grandmother, barbie and referred to having two dads. She also referred to a ‘stranger boy’. If it were the case that the child had in fact been sexually abused, the prospect of which I find remote, the mother closed her mind to the possibility of it being someone other than the father and perhaps unwittingly facilitated the abuse.
The reasons I consider the prospect of abuse to be remote arise from a number of factors including:
a)The age of the child and her vulnerability to suggestion;
b)The exposure of the child to conversations about the abuse, masturbation and insertion of objects into genitalia;
c)The repeated questioning of the child about the abuse;
d)The prompting of the child to make so-called disclosures;
e)The staged nature of the repeated video recordings;
f)The failure of the mother to produce all video recordings made by her;
g)The bizarre interpretation given to words used by the child by the mother and maternal grandmother;
h)The mother’s early motivation to stop the father spending time with the child;
i)The mother’s enmity towards the father and refusal to acknowledge she may be wrong;
j)The exposure of the child to the mother’s anxious and hypervigilant behaviour;
k)The exposure of the child to so-called protective behaviours and CDs and books about genitalia from a very early age and the focus on her genitalia;
l)Sentences allegedly disclosing abuse are attributed to the child by the mother at a time when her counsellor and others describe her as having a very limited verbal capacity;
m)Other explanations for the redness and discharge in the genitals consistent with normal medical conditions;
n)The absence of any injury to the child’s genitals consistent with the assertion that the child inserted various objects into her vagina;
o)The manner in which they are made and the demeanour of the child when she makes the so-called disclosures;
p)Exaggeration by the mother and maternal grandmother of the child’s behaviours;
q)The absence of any evidence that the child has acted in the way described by the mother and maternal grandmother in the presence of any other person; and
r)The absence of any evidence that the child made any so-called disclosure to any person other that the mother and maternal grandmother.
Even if the child had been sexually abused I reject the allegation that the father is the perpetrator because he has not had the opportunity to do so and the child could not be disclosing abuse that occurred to her at a pre-verbal time in her life, as explained by Dr P.
I find that the mother and maternal grandmother have subjected the child to repeated questioning about these allegations. I consider it more likely than not that the mother and/or the maternal grandmother have primed the child to make statements that afford some corroboration to the mother’s allegations e.g. in the video on 30 October 2015, the child says “You can do it [B]”. The mother did not heed the warnings made by the police and Ms V not to permit discussion about abuse in the child’s presence and not to prompt her.
The mother has used the child in the process of proving her case not caring what impact this might have on the child. The child has had at least three invasive genital examinations. She has been subjected to two interviews by police despite a warning about the possible impacts on the child. She has been subjected to interview by Departmental officers and months of counselling on the premise that she is a victim of sexual abuse. The mother has repeatedly questioned her and video recorded her at least fifteen times.
In October 2015 Mr I described the maternal grandmother as ‘over the top’ as she does not stop talking about allegations to the mother and at times this is in front of the child. Her demeanour in court was certainly consistent with Mr I’s observations. She displayed no ability to control what I find to be her hysteria. She took exception to the father commencing proceedings against her for a protection order arising out of her alleged behaviour towards him at changeovers and this seems to have been at least one of the reasons that propelled her towards opposing him having a role in the child’s life.
All those who have witnessed the child with her father including Mr W, Ms R, Ms L, Ms EE and Ms F provide evidence completely inconsistent with the mother’s evidence that the child is fearful of the father or traumatised by him. On the contrary she regularly runs to his arms and kisses and cuddles him.
The mother has turned on those who do not support her allegations e.g. on 27 November 2015 the mother was aggressive and kept interrupting Ms V from E Group and said “I cannot understand how [the child] will disclose if she is not prompted to do so”.
In reaching their conclusions, Dr P and Dr CC rely on information provided by the mother, which I find to be unreliable, exaggerated or untrue.
I find that the mother has embarked upon a mission to manufacture evidence against the father and in the process has emotionally abused the child.
In relation to the allegations of violence I note the mother’s rather dramatic statement to Dr FF that she had “lived in fear the whole time” and I find such a statement to be contrary to the evidence as a whole. The recording of the mother’s threats to the father involving making allegations of domestic violence to a magazine writer if he did not pay her money for the child do not sound like a woman in fear. She had the upper hand and dismissed the father’s attempts to rearrange time with the child so he could visit a terminally ill friend. Her text messages to him also include the threat to obtain a ‘DVO’ if he did not pay up. Her disregard of the child’s rights to spend time with her father as evidenced by her text message to the father stating ‘no money, no visits’ is breathtaking.
I find that there was one incident in 2012 where the father punched a door causing damage and this is likely to have caused the mother to be fearful at the time. I reject the mother’s account of other violence against her because of her failure to call relevant witnesses, the inconsistencies in her evidence and her tendency to exaggerate. I reject the mother’s evidence and Mr I’s evidence that the father made a threat to kill them all for the reasons earlier stated. I find that the mother used this incident as an excuse for preventing the child spending time with the father.
The only evidence to support a history of violence prior to his relationship with the mother is from police records relating to three alleged incidents in 2007 with his then partner and one alleged incident in 2010. No action was taken against the father on any occasion save for a without admission protection order. The father denies the allegations contained in those records and has had no opportunity to cross-examine anyone involved. Accordingly, I am not persuaded that the incidents as alleged occurred; however, the records can inform a broader assessment of risk.
On the basis of that historic evidence and the incident in 2012 where he punched a hole in the door, there is a risk that if the father is under the influence of alcohol he may act in a violent way. However there is no evidence of any violence in his relationship with Ms F. I agree with Ms R’s assessment of Ms F as a down to earth, genuine and caring woman. She also has her seventeen year old autistic daughter living with her and I do not accept that Ms F would put her at risk.
Overall, while there may be a risk of the child being exposed to family violence if the father is intoxicated I assess the risk to be minimal.
is the mother’s belief genuine
As the Full Court held in Russell & Close[6]:
33. In taking into account the belief of the custodial parent of abuse by the
non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to thechildren, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.[7][6]FamCAFC 25 June 1993 (unreported)
[7]Russell & Close FamCAFC 25 June 1993 (unreported)
The whole of the evidence must of course incorporate any relevant motivation for making the allegations.
My reasons for rejecting the mother’s belief as being genuine include the following:
a)The mother has demonstrated a persistent intention to exclude the father from the child’s life. My assessment is consistent with the opinions expressed by the Department and Ms R. In coming to that conclusion I rely in particular on the following:
i)The mother’s verbal threat, recorded by the father in May 2013, that if he did not financially support the child she would go to a journalist and allege domestic violence;
ii)The mother’s refusal to change the father’s time from a Saturday to a Sunday and her response to the father when he explained why he needed to change, “too bad”;
iii)The mother’s text messages to the father in April 2013 stating “no money, no visits”;
iv)The mother’s suggestion to a doctor in October 2013 that the child was at risk of physical harm from the father and taking a photograph of alleged bruising;
v)The allegations by the mother to Dr O on 10 March 2014 that the father was a drug addict despite the absence of evidence to support such an assertion (I note that when asked by Ms R in 2015 about the father’s drug taking the mother said, “I don’t know, I think there have been periods of drug taking” and “All through the pregnancy I did not see him take drugs”); and
vi)The mother’s disregard for court orders by repeatedly disrupting the child’s time with the father.
b)The mother’s refusal to accept that there is even a remote possibility that someone other than the father might be responsible even when it was brought to her attention that the child has implicated the maternal grandmother;
c)The mother’s allegations that the child had been sexually abused by the father during supervised time with Ms L;
d)The mother’s allegations that the father had a bath with the child on 6 September 2016 and ejaculated over her face based on her interpretation of what the child said;
e)The lack of corroboration of the child’s statements and behaviour from the day care centre, the Department, police, Dr CC, Dr P (apart from the biting incident), Ms R, Mr I; and
f)The matters identified in paragraph 298 above.
In summary, the mother has embarked on a campaign to remove the father from the child’s life. To the extent that there may have been moments that she was prepared to facilitate the child and father spending time together, such moments were short lived. Even during the period of unsupervised time there were frequent threats that the time would be stopped and there have been frequent interruptions to the child’s time with her father over the years on what I find to be spurious grounds.
Given my findings I reject the contention that the mother holds a genuine belief that the father has sexually abused the child because I consider the stated grounds for that belief to be both irrational and baseless.
is there an unacceptable risk of harm from the mother
I have found that the mother has exposed the child to repeated investigations in order to gather evidence against the father. She has ignored the very real risk of injury to the child in the process e.g. continuing video recording while the child tried to insert magnets and a lolly pop stick into her vagina. I have found that she has emotionally abused the child.
The mother suffers from a Generalised Anxiety Disorder and is fixated on the abuse allegations. If the child were to spend any time with the father, even supervised, she would continue to be exposed to the mother’s hypervigilance and anxiety.
If the child remains with her mother she will have no relationship with the father. The order sought by the mother acknowledges this as did counsel for the mother. This may remove the risk of the child being exposed to the mother’s anxiety, at least from this source, but the child will grow up believing that the father has sexually abused her. I reject the mother’s evidence that she would not inform the child. Her enmity towards the father has been shown to take priority over the best interests of the child. She has exposed the child to her views as evidenced by the child asking the father if he was drunk and saying that the father should be in gaol. The mother also admitted telling the child that the father does not support her.
Even if she did not inform the child I have no doubt the maternal grandmother would tell her. The maternal grandmother’s antipathy towards the father was palpable. Her conviction that the father had sexually abused the child was similarly based on the unflinching rationale that she believed the child. She deflected questions which suggested her rationale may be flawed.
There are two risks to the child if she remains with the mother. The first being the risk of emotional and psychological harm by being deprived of a relationship with her father and the second being the risk of emotional and psychological harm growing up believing she has been sexually abused by her father.
I accept Dr CC’s opinion about the likely medium to long term impact on the child of falsely believing she is a victim of sexual abuse by her father.
I find the risks to be unacceptable.
the impact on the child if she is removed from her mother
This is the most difficult part of this decision.
It was submitted on behalf of the mother that the father is not a realistic ‘residence’ candidate and that placing the child with the father and Ms F would be placing her in the care of people with whom she has very little if any relationship.
It is true that the child’s time with the father has been extremely limited but I reject the submission that she has very little if any relationship with him. Throughout this long and sorry saga every person who has observed the child with her father describes the warmth and ease with which they relate to each other. The child also seems to have an affectionate relationship with Ms F. Of course, neither relationship could really compare to the relationship the child is likely to have with her mother given she has lived with her all her life. I note Ms R’s observation that the mother showed little affection to the child but I do not regard that as necessarily indicative of the strength of the relationship and dependence the child would have on her mother.
The maternal grandmother is also a significant person in the child’s life and the child has no doubt spent considerable time with her. She would be likely to miss her relationship with her maternal grandmother.
I have no doubt that removing the child from her mother would be traumatic for her and that she would take time to adjust but given the observations made by Ms R and others I consider the father to have the necessary patience and skill to assist the child in that adjustment. The child also appears to be quite a resilient child. The father would be ably assisted by Ms F who has considerable experience in dealing with troubled children. I have confidence that the father and Ms F would take whatever steps were necessary to assist the child.
It is unfortunate that there is so very little evidence before me about G, Ms F’s seventeen year old autistic daughter. She attends the school where Ms F works. She is said to be quiet and intensely interested in technology and has met the child on only one occasion on 6 September 2015.
conclusions
I come to the conclusion that the best interests of the child in the circumstances of this case are that she live with her father and spend supervised time with the mother. I note that this accords with the submissions made on behalf of the Independent Children’s Lawyer.
While long term supervision for such a young child is far from ideal the child has a right to spend time with her mother if it is safe to do so. It may be that in some years and with the assistance of Dr D the mother is able to change her mindset and persuade a court that there has been a significant change in circumstances warranting the removal of supervision but until such time, I consider that the child would still benefit from spending some time with her mother.
The question of how often and how long is somewhat problematical as this is a final order and the child is very young. I consider that an order for fortnightly supervised time at the mother’s preferred contact centre would be sufficient to meet the needs of the child in maintaining a meaningful relationship with the mother. Given the mother’s stated views and her Anxiety Disorder I consider that the child needs time to settle in her new environment and develop a strong and secure attachment to the father. The mother is unlikely to be able to assist in the child’s transition and may well undermine it. Accordingly, for the first twelve months the time the child spends with her mother will be limited to two hours a fortnight but I see no reason why the time should not increase after one year if that can be accommodated by the contact centre and the parties are able to meet the expense.
The Independent Children’s Lawyer submitted that there should be a two month period during which the child would not spend any time or have any communication with the mother other than gifts and cards. While I have already acknowledged that the mother is unlikely to assist in the child’s transition and may indeed undermine it, I need to balance that against the child’s need to know that her mother is still in her life. Accordingly, I consider that a period of one month with no contact to be appropriate in the circumstances.
Given the history, I find that it would not be in the child’s best interests for the parents to share parental responsibility.
I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 May 2017.
Associate:
Date: 25.05.2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Duty of Care
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Negligence
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Causation
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Damages