Menendez & Willmore
[2021] FamCA 595
•11 August 2021
FAMILY COURT OF AUSTRALIA
Menendez & Willmore [2021] FamCA 595
File number(s): BRC 354 of 2020 Judgment of: CAREW J Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – CHILD ABUSE – Allegations made by mother of sexual abuse by father of child – Where the father does not pose an unacceptable risk of harm to the child – Where mother has intentionally manipulated evidence and made allegations of sexual abuse to negatively impact the father’s relationship with the child – Where allegations made by mother constitute a risk of psychological and emotional abuse of the child
FAMILY LAW – CHILDREN – With whom a child lives – Best interests of a child – Where there is an unacceptable risk of emotional abuse of child in care of the mother warranting a change of residence to the father’s care
FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where risk to the child of compromising his relationship with his mother by the constraints of ongoing supervision outweighs the risk of being exposed to psychological and emotional harm - Where gradual increase of mother’s time spent with child will be supervised for determined period
Legislation: Australian Passports Act 2005 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 170 Date of hearing: 5-8 July 2021 Place: Brisbane Counsel for the Applicant: Ms Downes Solicitor for the Applicant: BGM Family Lawyers Solicitor for the Respondent: Self-represented Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
BRC 354 of 2020 BETWEEN: MR MENENDEZ
Applicant/father
AND: MS WILLMORE
Respondent/mother
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.Mr Menendez (“the father”) shall have sole parental responsibility for the child X born 2015 (“the child”).
2.In the exercise of the father’s sole parental responsibility, he shall:
(a)Inform Ms Willmore (“the mother”) in writing (via email) about decisions to be made 21 days prior to making the decision, save in the case of an emergency and then such notice to be provided as soon as practicable;
(b)Seek a response from 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; and
(e)The father shall inform the mother in writing as to the decision he has made.
3.The child shall live with the father.
4.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 three months from the date of this Order, supervised by Family centre P, or another Contact Centre (“the Contact Centre”), with such time to occur, subject to the availability of the Contact Centre, and as arranged between the mother and the father and the Contact Centre:
(i)Each week on a Saturday or a Sunday (or an alternative day if agreed) for up to 2 hours on each day;
(b)After the expiration of three months from the date of this Order, supervised by the Contact Centre or a person agreed to by the parties in writing, with such time to occur, subject to the availability of the Contact Centre or a person agreed to by the parties in writing, and as arranged between the mother, the father and the Contact Centre or a person agreed to by the parties in writing:
(i)Each fortnight on a Saturday or a Sunday (or an alternative day if agreed) for up to 6 hours on each day; and
(ii)On Christmas Day, Easter Sunday and the child’s birthday, or on a day as close to those days as the contact centre can accommodate, for up to 4 hours.
(c)After the expiration of three months from the date of this Order, by video call (skype or such other video call service agreed to between the parties) between 6pm – 7pm on the Wednesday immediately prior to the weekend that the child is to spend with the mother with the father to assist the child to initiate the call;
(d)After the expiration of three months from the date of this Order, by video call (skype or such other video call service agreed to between the parties) between 6pm – 7pm on the Tuesday and Thursday in the week immediately following the weekend that the child spends with the mother with the father to assist the child to initiate the call;
(e)By way of cards and gifts;
(f)After the expiration of two years from the date of this Order, on each alternate weekend from after school or 3.30pm on Friday until before school or 9.00 am Monday during school term and for the first half of school holidays in even numbered years and the second half in odd numbered years.
5.In the event that the Contact Centre offers supervised time only at times which are less frequent than specified in paragraph 4, then time will be spent at the times which are offered by the Contact Centre.
6.The mother shall be responsible for all costs of the supervised contact.
7.The mother is restrained and an injunction hereby issues restraining her from attending any school the child attends from time to time save with the prior written consent of the father, save that the mother may attend:
(a)Any end of year or end of term concerts; and
(b)Parent teacher interviews.
OVERSEAS TRAVEL
8.Within seven days of the date of this Order the mother shall provide to the father any passport (current or otherwise) that she holds for the child.
9.The child’s name shall be removed from any Family Law Watchlist, on 30 June 2022 and this Order shall act as an authority to the relevant authorities to so remove the child’s name.
10.Commencing 1 July 2022, the father is at liberty to take the child out of the Commonwealth of Australia from time to time notwithstanding the fact that the consent of the mother has not be obtained and in order to give effect to same:
(a)In the event such travel interferes with the mother’s time as provided for in paragraph 4, make up time is to be provided such that the child will see the mother for three weekends in a row, upon his return;
(b)Such travel be for no longer than four weeks, twice a year unless the mother agrees in writing to extend that time.
11.The father and the child be permitted to apply for and obtain an Australian passport to enable the child to travel to and from the Commonwealth of Australia.
12.The requirement for the consent of the mother for the issuing of such passport for the child be dispensed with and, if necessary, this Order constitutes sufficient special circumstances for the father to seek, if deemed necessary, that the Minister administering the Australian Passports Act 2005 (Cth) give consideration to issuing an Australian Passport (travel document) pursuant to section 11(2)(a) of the Australian Passports Act 2005 (Cth).
13.The father shall be at liberty to provide a copy of the reasons for judgment of this Honourable Court dated 11 August 2021 to any medical practitioner or therapist the child and/or the father may attend upon to assist in the child’s transition into the father’s care.
14.The father shall be at liberty to provide a copy of this Order to any school attended by the child.
15.The mother shall be at liberty to provide a copy of the reasons for judgment of this Honourable Court dated 11 August 2021 to any therapist she may attend upon to assist her to come to terms with this Order.
16.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Menendez & Willmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Menendez (“the father”) and Ms Willmore (“the mother”) are the parents of one child together, namely, X born in 2015 (“the child”). Unfortunately for the child, the parents are unable to agree about parenting arrangements.
The mother alleges that both she and the child have been victims of family violence perpetrated by the father including sexual abuse of the child. The father denies all allegations and contends that the mother’s allegations are motivated by malice. The father admits to verbal arguments and name-calling by both parents during and after the relationship. There have been no protection orders made in favour of either parent.
Each parent is applying for the child to live with them and to have only supervised time with the other parent. Each parent is also applying to have sole parental responsibility for the child.
Although the mother has had legal assistance from time to time throughout the proceedings, including representation at some interim hearings, she represented herself at trial.
For the reasons given below, I propose to order that the child live with the father and spend supervised time with the mother for an extended period before commencing unsupervised time. The father will also have sole parental responsibility for the child.
EACH PARTY’S PROPOSED ORDER
The father proposes that he have sole parental responsibility and that the child live with him and spend supervised time with the mother. The precise terms of the order sought by the father are set out in Exhibit 18.
The mother proposes that she have sole parental responsibility and that the child continue to live with her and spend supervised time with the father but only if the child agrees. The precise terms of the order sought by the mother are set out in her Amended Response to Initiating Application filed 4 July 2021.
In the event the Court finds that the mother presents an unacceptable risk of psychological harm to the child, the Independent Children’s Lawyer (“ICL”) recommends that the child live with the father and spend supervised time with the mother. In the event the Court finds that the mother does not present an unacceptable risk of psychological harm to the child, the ICL recommends that the child continue to live with the mother and spend five nights per fortnight with the father. The precise terms of the order recommended by the ICL are set out in Exhibit 17.
ISSUES
On 19 January 2021, when trial directions were made, the parents and the ICL identified seven significant issues for determination and confirmed on the first day of trial (with some amendment) that these seven issues accurately and adequately identify the significant issues to be determined in this case. The agreed issues are as follows:
(1)Does the father pose an unacceptable risk of sexual harm to the child?
(2)If the father does pose an unacceptable risk, can that risk be ameliorated by supervised time?
(3)Is there an unacceptable risk of the child being exposed to family violence when spending time with the father?
(4)If the father does not pose an unacceptable risk to the child, is the mother willing to facilitate or does she have the capacity to facilitate the child’s relationship with the father?
(5)Has the mother intentionally manipulated evidence and made allegations of family violence and sexual abuse to remove the father from the child’s life?
(6)If so, does the mother pose an unacceptable risk of harm to the child by being exposed to psychological abuse or emotional harm?
(7)If the mother does pose an unacceptable risk of psychological or emotional harm, can that risk can be ameliorated by supervision?
Before turning to consider the issues, it will be helpful to set out some background and the legal principles that are to be applied.
BACKGROUND
The father was born in Country B in 1975 and moved to Australia in 2013. He is now an Australian citizen. The father is employed as a technician and earns $1,216 per week before tax. The father commenced a relationship with Ms C in October 2019. They have one child together, namely, Y born in early 2021. Ms C was born in Australia. Ms C is in receipt of maternity leave payments of $640 per week.
The mother was born in the United Kingdom in 1983 and moved to Australia shortly thereafter. The mother became an Australian citizen in 1985 and is in receipt of a disability pension as a result of having undergone a spinal fusion many years ago. The mother has qualifications as an allied health professional but has not worked in that occupation.
The father and mother commenced a relationship in 2013 (although they did not commence to live together until 2015) and separated on a final basis according to the father in October 2017 and according to the mother in November 2016. The mother contends that the relationship was only ever considered casual and transient in her mind and that from November 2016 until December 2017 the parties remained in a “civil partnership” which was “coerced” by the father to assist him attaining his citizenship status.
Up until April 2019 the child spent overnight time with the father for up to three nights per week. The mother suspended time between the father and child during the period 19 April 2019 and 30 May 2019. The mother wanted the father to spend time with the child during the week rather than on weekends. The father did not agree because he was working full time. The parties disagree about why the mother sought to impose weekday rather than weekend time. The father’s time with the child recommenced in June 2019 but during the day only.
The father commenced proceedings in the Federal Circuit Court of Australia on 13 January 2020 and on 2 March 2020 an order was made for the father to spend time with the child from 8am to 7pm Monday, Saturday and Sunday in week one and from 8am to 7pm on Monday in week two.
A family consultant, Mr D, conducted interviews with the parents on 17 April 2020. At that time, the mother opposed the father spending any time with the child. I note that the mother’s opposition predates any alleged disclosure of sexually inappropriate behaviour by the father to the child. Mr D opined that the mother’s objections to the father spending time with the child related to differing parenting styles. Mr D recommended that the father spend two nights per week with the child. The father recommenced day time only with the child as the mother opposed overnight time.
On 29 April 2020 the parents were ordered to complete a Parenting Orders Program and the father was ordered to complete a Behaviour Change Program. A family report was ordered and the matter was further adjourned to 10 September 2020. There was no change to the ‘spend time with’ order i.e. the order for the father to spend time with the child on multiple days each fortnight remained in place.
The mother again suspended the father’s time with the child on 23 June 2020 as a result of things allegedly said to the mother by the child and her observations of him, the combination of which caused her to suspect that the father had sexually abused the child.
The mother reported her concerns to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) and the police. The child was interviewed by police on 25 June 2020. No further action was taken by the Department or police.
On 10 September 2020 the matter was transferred to this Court. On 2 October 2020 it was designated a Magellan[1] matter and an ICL was appointed.
[1] The Magellan list is case management tool designed to afford priority to matters in which there are serious allegations of abuse or violence.
The family report prepared by Dr E issued on 19 October 2020. At that time, the mother opposed the child spending any time with the father “at least until there is further clarification about the meaning of the child’s disclosures about potentially sexualized behaviours being exposed to in the father’s care”. The mother was unable to identify any benefits for the child spending time with the father and opined that they did not have a close relationship. Despite her opposition, the mother told Dr E – “I’m not going to stop it (time spent between the father and child) if [the child] wants to”. Dr E recommended that the child continue to live with the mother but spend frequent unsupervised time with the father. Unsupervised time did not occur.
The parties engaged Family centre P to supervise the father’s time with the child. The first contact between the father and child occurred on 9 November 2020 and proceeded very successfully. The father had spent no time with the child since 22 June 2020.
On 24 November 2020 the mother made a notification to the Department in which she alleged that the father had spent time in prison in Country B for a serious criminal offence and that he had later paid someone to delete his criminal record. There is no evidence that this allegation had previously been made by the mother. The father denies the allegation and denies ever telling the mother this.
Also on 24 November 2020, the mother completed a school enrolment form for the child and informed the school that the child’s preferred surname was the mother’s surname i.e. ‘Willmore’ rather than his actual surname which is the same as the father’s.
On 26 November 2020 a Registrar made an interim order which, among other things, provided for the father to spend supervised time with the child for six hours on a Saturday and Sunday each alternate weekend.
The cost of supervision (up to $100 per hour) had the consequence of limiting the amount of time able to be spent between the father and child, which as at the date of trial was occurring for one hour each alternate Saturday and Sunday. The father communicated with the child by telephone three times per week. This communication was by video until 29 November 2020 when the mother stopped the video calls and only permitted telephone calls. On the last day of trial an interim order was made by consent reinstating the video calls.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
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 (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
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.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities[3] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[4] and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[5] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[7] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[8]
[3] Evidence Act 1995 (Cth), s 140.
[4] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[5] Ibid.
[6] M v M (n 4) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[7] Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891, [68].
[8] Ibid at 81,891, [71].
The Full Court of the Family Court of Australia (“the Full Court”) recently reviewed the role of the court in assessing risk in Bant & Clayton[9] and from [38]:
[9] (2019) FLC 93-924.
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[10] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[10] (n 9).
The court is not required to make findings of fact on every factual dispute raised by the parties.[11] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” [12] on each and every factual dispute.[13]
[11] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[12] M v M (n 4) at 76.
[13] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
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 that 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 as defined in s 4AB. 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 whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[14]
[14] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues identified as requiring determination.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF SEXUAL HARM TO THE CHILD?
Although the mother concedes that the evidence before the Court is insufficient to conclude that the father poses an unacceptable risk of sexual harm to the child, the mother nevertheless contends that there is a risk of sexual harm to the child if the father is not supervised, and she seeks to maintain ongoing supervision. The mother’s view appears to be informed by her alleged experience of the father as the perpetrator of family violence upon her and the child, which is considered separately later in these reasons.
It is important to recognise that allegations of child sexual abuse can be difficult to prove or disprove. While the onus of proving such an allegation rests on the parent making the allegation, the accused parent may produce evidence that categorically disproves the allegation or raises sufficient doubt about the allegation such that any risk posed is not an unacceptable risk. The impact on a child of making the wrong decision is potentially catastrophic i.e. the child may be exposed to an abuser or may lose a relationship with a parent.
A parent genuinely making such an allegation should feel no pressure to resile from it for fear of losing the child to the other parent by the mere fact of making the allegation. However, just as all of the evidence relied upon to support such an allegation must be carefully analysed, so too must the reasonableness of a parent’s willingness to make and maintain such an allegation be equally scrutinised.
In assessing the magnitude of risk, a court will be conscious that memory is not infallible and that perceptions, interpretations and conclusions about the same observation or statement may legitimately differ. In the context of family law disputes, a court must also be acutely conscious not to dismiss an allegation only because the parent making the allegation hates the other parent or has a history of mental illness or is prone to exaggerate.
Although, as already noted, the mother concedes that the evidence relied upon by her does not support a finding of unacceptable risk, she nevertheless maintains that the father’s time with the child should remain supervised. It is important, therefore, to examine closely the evidence relied upon by the mother in support of her case that the father poses a risk of sexual harm to the child. The evidence relied upon by the mother in relation to this issue can be summarised as follows:
(a)The child tried to “passionately” kiss the mother on 19 June 2019 and, when questioned, the child said he had seen the father kiss his flatmate, Ms F, in front of him and he did not like it;
(b)The child was observed by the mother to smack his own bottom while on all fours on the bed in early 2020;
(c)On 23 June 2020 the child made ‘disclosures’ to the mother “[r]eferring to encounter with his father on Monday 22/06/20” and while engaging in sexualised behaviours;
(d)On 27 June 2020 the child made further ‘disclosures’ to the mother;
(e)The child contracted a sexually transmitted disease on his chin i.e. herpes, from the father in June 2020;
(f)The father has a “sexual fetish”;
(g)The child wets his pants, has night terrors, chews his nails, acts out aggressively and insists on sleeping in the mother’s bed.
As to (a) – passionate kissing
In June 2019 the mother stopped the child from spending overnight with the father. The mother alleges that the child attempted to kiss her “passionately” and upon questioning, the child revealed that he had seen the father doing so with “Ms F”. On 28 June 2019, the mother sent an email to the father asserting that the child told her he does not like it when the father and “Ms F” are kissing in front of him. The father told the mother that the child could not have seen him kissing his flatmate Ms F because he had never done so. The father contends that despite his denial, the mother continued to talk about it at changeover and would make inappropriate remarks such as “How’s your […] Fetish going”. The mother has not denied making such remarks to the father at changeover.
I make three findings about this allegation. Firstly, whether or not the father kissed his flatmate in front of the child; there is no evidence that the act of kissing another adult is an indicator that the father has a propensity to sexually abuse his son. Secondly, the making of the taunting comment by the mother at changeover i.e. “How’s your […] Fetish going”, casts doubt on the mother’s claim to have been fearful of the father. Thirdly, the mother was prepared to place the child in the middle of a potential conflict by making such comments. I also note that the use of the word ‘fetish’ is used by the mother at a later time in a more sinister context.
As to (b) – child smacking bottom
The mother was interviewed by a family consultant, Mr D, on 17 April 2020 and raised a concern about the child smacking his own bottom. The mother provides some further context in her evidence in chief. She says that when the child was nude, either after a bath or before she had put a night nappy on the child, he would be on the bed on all fours and would smack himself on the bottom. The mother deposes that she “found this was quite abnormal and disturbing, as it was also the facials he was doing with it”. The mother does not describe what she meant by “facials” but contends that Mr D may have taken what she told him the wrong way i.e. “thinking I meant he was smacking himself on the bum because he was naughty”.
I am not sure what the mother invites the Court to draw from this activity by the child. Mr D did not raise it as a risk factor and there is no evidence that it is indicative of a child having been sexually abused.
As to (c) – 23 June 2020 disclosure
In her trial affidavit the mother deposes as follows:
1. The child grabbed my crutch as we were lying down in bed. I was wearing just a shirt and underpants. After the child did that he looked at me smirking and then lied down as if waiting for my reaction. I was shocked and asked him, why did you do that? He grabbed his crutch and said it was his favourite thing to do. I asked if someone does that to you, he said, yes, his dad does that to him and it was a secret. I then asked why does he do that? He said because he's a bad boy. I said what happens when he does that? He said he explodes; I asked - what do you mean he explodes?? Then he said, explodes like .... (And made sound with his mouth of exploding). Then I said, does he touch you?, He said, yes, like this and made a beating sound like thud, thud, thud, with his hand on his body, I said what does he touch you with and he said, a stick. I then asked where is this in the bedroom and he said outside. When was this and he said yesterday (he had visitation with his father the day before). He then said, actually he doesn't do this, and then showed me by rubbing himself in the crutch. I asked does this make you scared and he said yes. I said why does this make you scared and he said, because it's horrible. I then said does he touch you all the time and he said yes. He then said OK I don't want to talk about it and rolled over to sleep and I ended it there.
(As per original)
Perhaps not unusually for a child of that age, he slept in the same bed as his mother at this time, although he had his own bed. The alleged ‘disclosure’ occurred at about 8.00pm. During cross-examination the mother said she was alarmed by the child’s actions, as described above, and led to her questioning the child. The mother was then asked if she considered it normal for a child of his then age to fondle their own genitalia. The mother said she did not think it was “appropriate” but conceded that she had previously seen the child play with his “winky” (a reference to his penis).
The following exchange also occurred between the mother and the father’s counsel:
[Counsel for the father] What was the sound that [the child] made when he said something exploded?
[Mother] [the mother made a sound like a ‘raspberry’] He said it went … everywhere. … And he even did those gestures.
[Counsel for the father] Alright. And gestures, for the court, was hands out to the side…
…
As a result of the child’s actions and what he said to her, the mother contacted the Regional Intake Service (“RIS”) of the Department at about midday on 24 June 2020. Their records include the following:
[The child] is the child of separated parents …
[The child] is in his mother’s full time care, he has 4 visits per fortnight with his father, as per interim FLC orders
[The child] attends C and K Suburb G. 5 days a fortnight.
There are no DV orders in place.
… [The mother] provides that [the child] stated “my dad has done that to me before” and that “It’s a secret”. … [The child] stated that his father exploded and when asked what this meant he made a noise and said he went “blurp everywhere”. [The mother] believes this means that [the child] was witnessed (sic) to his father ejaculating.
[The mother] provides that … [the child] has also displayed behaviours that [the mother] believes are sexual in nature.
Concerns the child has been sexually abused.
At this time, the notifier has raised worries in relation to behaviours displayed by [the child] and comments he has made that the [mother] believes to be indicative of sexual harm or abuse from his father. Despite these worries, there is very limited contextual detail to suggest that [the child] has experienced sexual abuse.
The behaviours described that [the child] has engaged in … may indicate that he has been exposed to adult themes, or adult behaviour, however the behaviour could also be considered age and developmentally appropriate (explorative play). It is likely that [the child] would benefit from support surrounding protective behaviours education, however the behaviour in itself is not indicative of harm.
The worries in relation to [the child] suggesting that his father … “blurp everywhere” lacks context and detail, and there is very limited detail to suggest that the game or behaviour that [the child] is describing is sexual in nature, or involves his father ejaculating, despite the [mother’s] assumption.
The Department records indicate a second notification was received on 24 June 2020 which included the following information:
Mother is of the belief [the child] is being sexually abused by his father.
…
The father has also hit [the child] with a stick.
[The child] is hyperactive …
[The child] has never disclosed any worrying information to the reporter, nor … any suspicious indicators of harm (sexually reactive behaviours).
…
Mother stated the father is manipulative.
These worries have already been reported to Region H RIS, and screened out as a CCR [child concern report]. … have been referred to Region J CPIU [child protection investigation unit]
…
No history to suggest a pattern of abuse and or neglect.
Child is visible in the community and attends day-care.
… there is no tangible-or credible evidence of the child presenting with serious injuries, or his behaviour is consistent to that of a child who has been sexually abused. …
The language used in the second notification indicates that the mother was not the reporter e.g. “[The child] has never disclosed any worrying information to the reporter”. The second notification, however, indicates the information that is being reported is sourced from the mother e.g. “mother is of belief that child is being sexually abused by the father”.
After speaking with the Department, the mother made a report to police on 24 June at 1.38pm. The police records state the following:
Police received a call at 1300 hours from the informant who stated there is a current court ordered custody arrangement in place. When the suspect returned the victim child to the informant after having spent the last weekend with him, the victim was exhibiting sexualised behaviour which he had never done before, such as grabbing his penis. The victim also disclosed to the informant that his dad had hit him with a stick and 'then it exploded'. The informant believes that this behaviour exhibited by the victim is very unusual, that he never usually uses the word 'explode' and has never previously acted sexually.
During cross-examination the mother conceded telling police that she had not previously observed the child acting sexually. As noted earlier in these Reasons, the mother had previously seen the child playing with his penis but sought to distinguish what she observed on 23 June 2020 stating that previously what she observed was the child playing with his penis “in a joyful way” and that her observation on this occasion was not in a joyful way.
On 25 June 2020 the child was jointly interviewed by a male police officer and a female police officer and the 15 minute interview was video recorded. The child presents as relaxed but fidgety. He chats easily with police. When asked about his father, the child says he likes his father to cuddle and kiss him and that he felt safe with his father. The child spoke happily about his father and indicated that it was always fun at his father’s house and he had never felt scared. When asked about a stick, the child said he put the stick in the garden and spoke about planting in the garden. When asked if the stick had exploded the child said it did not. At the end of the interview, when asked again if he felt safe with his father, the child emphatically answered in the positive. The police records indicate the matter was “solved” as no offence was disclosed during interview and the child indicated feeling safe with his father.
The mother was dissatisfied with the investigation by police suggesting that the male interviewing police officer had not taken sufficient time before the interview to build up a rapport with the child. As noted there was also a female interviewing police officer and, in any event, in the video recording of the interview, the child appears perfectly at ease and said nothing of concern.
The mother agrees that the police informed her that they would not be investigating the matter further. The mother contends that she was informed that if she returned to police with the child and he again made no disclosure of sexual abuse it would look bad for her. The mother describes her experience with police as “a very intimidating process”.
The father denies acting in a sexual way with the child and denies that the child could have observed a sexual act involving himself or anyone else.
The father deposes to having been sexually molested as a nine year old child by the principal at his primary school in Country B and as a result, he says he has been “hyper vigilant about [the child] and him being exposed to any situation where he could be harmed in this manner”. The father says he has “tried to teach [the child] protective strategies such as always telling the truth to his parents, that nobody should touch his private parts and if he does not feel safe to scream for mum or dad. I have also tried to ensure that [the child] understands that there should be no secrets”.
The father contends that recently and historically the child would answer a question with “I can’t tell you, it’s a secret” and that the most recent time was on 29 May 2021 when he asked the child about his toy and the child responded “I can’t tell you, it’s a secret”. The father contends that he has heard the mother tell the child that she would take him camping to their “secret spot” and at times that she could not tell him something because “[i]t’s a secret”.
The father does not recall the child ever using the word ‘explode’ nor could he recall ever using that word in the child’s presence. When pressed during cross-examination if he could offer an explanation for the child’s statement about something exploding, the father recalled an occasion when the child was much younger when he conducted a science experiment in the child’s presence, involving putting a peppermint lolly called a Mentos in a two litre bottle of Pepsi. The father described what occurred:
And I saw on YouTube that kids put a Pepsi bottle – it’s like a – like, a science experiment, the reaction between the Pepsi and the mentos. So we put the Pepsi, put some mentos in, and it turns into foam and it looks like a volcano coming out of the – the Pepsi. So – so I can probably say that at that time, I said, “Look (makes sound) like a volcano,” but that’s all I can help you with my memory to – about this sort of events.
When asked about the child’s reference to “thud” on his body the father said that he has “probably done the King Kong move” in the child’s presence and demonstrated beating his chest which made a thudding sound.
The father offers an explanation for the child’s reference to a stick. He contends that the child played with a small piece of bamboo in his garden that he used as a sword and that on 2 May 2020 he and the child planted tomatoes in a small garden at the father’s house and used bamboo to support the vine. Exhibit 13 includes photographs of the child in the father’s garden with the tomato plants and the bamboo stick.
There appear to be numerous possible explanations for the child’s statements and conduct other than sexual abuse.
As to (d) - 27 June 2020 disclosure
The mother was undeterred by the advice allegedly provided to her by police on 25 June 2020 because on 27 June 2020 the mother had a further conversation with the child as follows:
2. I asked the child if we could discuss what he said was a secret the other day, the child said about this? And pointed to and rubbed his genitals in a circular motion. I said yes, you said the other day that your dad explodes where does he explode on his body? He then pointed to his genitals. I said does he touch you there, he said yeah.
The mother’s intervention at this time reinforced her interpretation of what the child had said on the 23 June 2020 i.e. that the father had ejaculated on the child. The mother introduced the topic and repeated to the child a statement she contends was made by the child on the earlier occasion. She also asks leading questions.
On 29 June 2020 (a Tuesday) the mother and child had a telephone consultation with Dr K. The mother reported to the doctor that the child had had a fever on the previous Friday and still had a chesty cough. The doctor’s records also state the following:
Mum also reports last visit to his dad, seen him 22nd Monday, on the 23rd, [the child] touched her privates and when questioned, he reports he likes doing it and his dad did it and then exploded then he took back his statement mum already reported to child protection and also police, and due investigation because of concern raised mum is apprehensive about sending him to his dad
A Notice of Risk was filed in this Court by the mother on 19 November 2020. In it the mother contends that the “child made sexual disclosures to myself about his father” and that “sexual disclosures were reported to Child Welfare, Counselling service, Police, Medical Practitioner, Kindergarten”.
At the time of the alleged disclosures, the child attended day care five days per fortnight. There is no evidence of any behaviour or statement, consistent with possible sexual abuse, having been observed or heard by anyone at day care. Indeed, there is no evidence that such behaviour or statements have been observed or heard by anyone other than the mother. During the trial the mother said that her mother had been a witness to certain statements by the child. Although the mother’s mother recently passed away, no affidavit was obtained from her prior to her death.
When the child was interviewed by police on 25 June 2020 he not only made no disclosure indicating abuse, but spoke positively about the father, said he felt safe with him and liked to cuddle and kiss him.
As to (e) – Herpes
On 26 October 2020 at 15:58 the mother sent an email to the father’s solicitor in which she said among other things, the following:
I appreciate that there is insufficient evidence from the sexual allegations towards my son at this stage, however that doesn't mean that the incident/s haven't occurred and I will be seeking orders from the court to have my son assessed medically without the father's consent. The child also displayed signs of having contracted a virus at the time I ceased care with his father (which is why I tested for covid and had reported a virus with the Dr), I am now concerned that this was in fact, a herpes virus infection, which can be a sexually transmitted disease. I have been unable to assess him medically any further as you put me on notice on the (09/07/20) & I quote “We further hereby put you on notice that our client does not consent to [the child] undergoing any counselling with Counselling service or any such service. The allegations with respect to his conduct are denied”.
A medical doctor will be able to determine if in fact a herpes infection has occurred via antibodies, which I believe needs to be addressed.
This was the first time the mother had made an allegation that the child may have had a sexually transmitted disease. The following day, during a directions hearing on 27 October 2020 the mother (who was unrepresented) raised her concerns about the child having a sexually transmitted disease and when asked if she had the child tested the mother said:
[…]. I am an allied health professional. I assessed it myself.
The mother nevertheless indicated to the Registrar that she wanted the child to have a blood test to confirm the child has genital herpes. There is no evidence that the child has had a blood test. Further, there is no evidence the mother observed any symptoms of herpes on the child’s genitals.
On 22 February 2021 the mother sent an email to the father which said as follows:
Hi [the child] came home from school early as he said he’s not feeling well. So after picking him up I have noticed small blisters around his mouth. I am suspecting there is a herpes virus activation which I believe he contracted off of you in June. He is having a video call with the dr this afternoon. I have started giving him some lysine to treat this.
The mother sent the father a close up photograph depicting the bottom half of the child’s face to the top of his chest (Page 112 of Exhibit 13). There is some slight pinkness under the child’s nose and a few tiny pink dots on his chin. I would not describe the marks as blisters. In her evidence during the trial the mother says she treated the condition with lemon balm.
The mother also sent an email to Family centre P (the service providing supervision for the father’s time with the child) on 22 February 2021 which said as follows:
Hi [Ms L] at this stage this weekend won’t be suitable. I will let you know if anything changes. [The child] has broken out with a small rash on his face today which I believe to be herpes from not getting enough rest. He has come home from school. I’m going to let him rest the rest of the week.
On 25 February 2021 the mother informed the father that only she spoke to the doctor on 22 February 2021 because the child’s herpes had disappeared overnight.
On 1 April 2021 the medical records indicate that the mother was “keen” for the child to have “HSV serology” which it is agreed refers to herpes simplex virus testing. The medical records indicate that the request to A pathologist service was e-ordered (which it is agreed means emailed) although the mother on the one hand denies ever receiving the pathology request but on the other hand says “at the time I requested it from the doctor he issued me a scraping and for the scraping to be done it had to be an open lesion. … by the next morning there was no open lesion or anything; it was just a small – little tiny pimple”. It is possible the mother is referring to two different occasions i.e. in June 2020 and February 2021. There is no evidence that the child had any symptoms of herpes at all on 1 April 2021.
The mother agreed during cross-examination that there has only been two occasions when she suspects the child had herpes. The first was in June 2020 and the second occasion was on 22 February 2021 and the photograph (see pages 111-112 of Exhibit 13) depicts the symptoms she saw on both occasions.
The father deposes to having had cold sores on his mouth on about three occasions during the relationship, on occasions when he was “run down, or sick”, once shortly after separation, and on 28 March 2019. On the latter occasion the father says he told the mother he was getting a cold sore when returning the child to the mother. The father treated the cold sore with a medication he obtained from the chemist called Lysine which he took for about ten days. The father also says that he was very conscious not to kiss or put his mouth near the child when he was getting a cold sore or had a cold sore. During a text exchange with the father on 3 April 2019 the mother said he had “probably passed on” his herpes virus to the child whom she says had been sick since being dropped off by the father. The mother reminded the father to keep the child warm at night and not to take him swimming in cold weather. She did not refer to the child having any sores or ulcers.
When the mother was asked during her oral evidence what was the significance of the child possibly having the start of a cold sore on his face on 22 February 2021 she responded as follows:
I’m just linking it to that occasion of what’s when a virus occurred, which I believe was herpes, in his father’s care, which can be transmitted through ejaculation, through saliva.
The mother confirmed that in her view, her allegations that the child has had herpes is relevant to her sexual abuse allegations.
There is no medical evidence that the child has ever had herpes let alone contracted the virus from the father. The mother’s evidence linking the few red dots on the child’s chin to a sexually transmitted disease, possibly caused by the father ejaculating on the child, is a rather alarming leap and completely unsupported by any evidence before me. It is a rather bizarre allegation.
As to (f) – ‘fetish’
On 20 February 2021 the following note is recorded in the supervision notes made by ‘Mr M’ from Family centre P:
At 9:03 am I met [the mother] and [the child] outside of […] Cinemas. [The mother] mentioned to me that she did not want [the father] to buy […] for [the child] during contact, if [the father] proposed doing so, as that was something that she was already planning to do. She also explained that there were allegations that [the father] had a fetish, and so she didn't think it would be appropriate for such an interaction to occur.
This is the first and only time (other than during the trial) that the mother has raised an allegation about the father’s alleged fetish. There is no mention of the allegation in any of the mother’s three affidavits nor in either of the Notices of Risk filed by her.
Contrary to the impression created by ‘Mr M’s’ note, there are no allegations that the father has a fetish, other than as made by the mother. The mother says she does not know why ‘Mr M’ expressed her concerns in the way he did i.e. referring to “allegations”.
When challenged about her allegation during cross-examination, the mother contended that the father had a fetish during their relationship which involved the father “masturbate[ing] with [her] […]”. Even if this were an accurate recollection by the mother, there is no evidence that an act between two consenting adults is at all relevant to an assessment of risk in relation to the father mistreating his son in a sexual way. The mother also speculated that the father’s sexual fetish is an acting out of abuse that was perpetrated upon him by the principal of his school when he was a child. The mother referred to a media report about the principal’s abuse. There is nothing in the media report referring to any claim made by the father about the principal acting in such a way to him. The mother did not cross-examine the father about her allegation.
I must say I find this allegation to be quite bizarre. It led to the mother objecting to the father taking the child, during a supervised visit, to buy new … because she considered that such an activity would be sexually arousing for the father. The mother did not object to the father buying the child … and bringing them to the supervised visit, which rather defeats the purpose if the mother were seriously concerned that the father would be aroused by the child … while putting on his ….
The allegation is so far-fetched and fanciful as to cast doubt on her evidence more generally.
As to (g) - The child wets his pants, has night terrors, chews his nails, acts out aggressively and insists on sleeping in the mother’s bed
During a court appearance on 29 April 2020 the mother informed the judge that she believed the child’s time with the father should be at her discretion because, among other things, after returning from spending time with the father, the child’s “behaviour is very aggressive” and “[i]t’s very disruptive to his everyday routine”.
Among the mother’s complaints about the impact on the child of spending time with the father are the following:
(a)Returning from the father’s home with a doll whose head had come off;
(b)Saying to the mother that he will chop off her head;
(c)Refusing to answer questions about what he did at the father’s place;
(d)Being irritable;
(e)Hitting his head with his palm;
(f)Being subdued;
(g)Chewing his nails and stewing on things when there is “discussion” of the father; and
(h)Refusing to sleep in his own bed.
On 1 May 2020 the father emailed the mother offering to meet with her to discuss the child’s alleged behaviour. The mother did not respond.
On 1 June 2020 the mother told the father that the child had “started wetting himself because he was getting too excited about playing and would forget to ask to go to the toilet”. The mother asked the father to prompt the child to use the toilet more often. On 5 June 2020 the father emailed the mother offering to meet up and discuss the behaviours raised by the mother including the child wetting himself. The mother did not respond.
I have struggled with the prospect of only making an order for long term supervision between the child and the mother. The parents can always agree to change the arrangements, including the need for supervision, but if they do not agree I would like to minimise the prospect of further court proceedings by making provision for the automatic removal of supervision. I accept that choosing such a time is somewhat arbitrary but on balance I conclude that is the more appropriate course. After all “[parenting applications] necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order”.[16]
[16] CDJ v VAJ (1998) 197 CLR 172 at 218.
In two years, I consider that the risk to the child of compromising his relationship with his mother, by the constraints of ongoing supervision, outweighs the risk of being exposed to psychological and emotional harm arising from the mother’s negative attitudes about the father. In coming to that conclusion I have taken into account the following matters:
(a)The child will be two years older and have experienced life living with the father, Ms C and Y;
(b)It can be expected that the child’s relationship with the father will have become even more secure;
(c)As the child becomes older he is likely to become more aware that there is something different about his relationship with the mother if supervision continues and it may cause him to view the mother as someone he is not safe to be around, and thus compromise that relationship;
(d)The child may come to resent the father if the restrictions of ongoing supervision continue;
(e)If the parties are unable to agree on an alternative supervisor, the cost associated with the current supervision is significant;
(f)The mother loves the child and it is hopefully more likely that she will seek psychological therapy to come to terms with the decision and become motivated to change; and
(g)With the father remaining the primary carer and time with the mother limited to alternate weekends and half holidays, the risk of harm is minimised, as the mother’s influence will be constrained to those times.
Accordingly, I propose to order that the mother’s time with the child transition to unsupervised time after two years but will limit the potential for influence by restricting her time to alternate weekends and half holidays.
As there are reasonable grounds to believe, and indeed I have found, that the parents of the child have engaged in family violence, the presumption in favour of equal shared parental responsibility does not apply (see s 61DA(2)). In any event, the presumption is rebutted because I do not consider it to be in the best interests of the child for the parents to have equal shared parental responsibility. It would require long term parenting issues to be decided jointly. Such an order would be likely to result in further court proceedings. I will nevertheless adopt the order proposed by the father which will create an obligation for him to take into account the mother’s views before decisions are made by him.
As the father’s family live in Country B and it is a signatory to the Convention on the Aspects of International Child Abduction,[17] I propose to provide the father liberty to travel with the child from 30 June 2022. I do not regard him as a flight risk given his substantial commitment to Australia e.g. his partner Ms C, his child, his home and work.
[17] Opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).
As to the remaining specific issues and injunctions sought by the father, I propose to adopt the order sought by him.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 11 August 2021
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