Merritt and Merritt

[2017] FamCA 694

FAMILY COURT OF AUSTRALIA

MERRITT & MERRITT [2017] FamCA 694

FAMILY LAW – CHILD ABUSE – Magellan – Best interests – Where there are allegations that the father sexually abused the parties’ daughter – Where the child has made disclosures about the father – Where the father denies any sexual abuse – Whether the father presents an unacceptable risk – Where an order is made that the father spend no time with the children. 

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

R v Baden-Clay [2016] HCA 35
Briginshaw v Briginshaw (1938) 60 CLR 336
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129

APPLICANT: Mr Merritt

RESPONDENT: Ms Merritt

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton

FILE NUMBER: BRC 7783 of 2013

DATE DELIVERED: 12 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18, 19, 20 & 21 May and
2, 3 & 4 September 2015 and 1, 2 & 3 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLennan

SOLICITOR FOR THE APPLICANT:	Walker Lawyers
COUNSEL FOR THE RESPONDENT:	Ms S.F. Downes

SOLICITOR FOR THE RESPONDENT: Hogan Stanton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cameron
(on 18, 19, 20 & 21 May and 2, 3 & 4 September 2015 and 1 February 2016)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George
(on 2 and 3 February 2016)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton Solicitor

Orders

1. That all previous parenting orders are discharged.

2. That the children, E born … 2007 and D born … 2009, (“the children”) shall live with the mother who shall have sole parental responsibility for all major long-term issues in relation to them.

3. That the children shall not spend any time with nor communicate with the father other than pursuant to any arrangements made by the mother at her initiation.

4. That the Independent Children’s Lawyer is discharged.

5. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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 Merritt & Merritt 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 7783 of 2013

Mr Merritt

Applicant

And

Ms Merritt

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. E, born in 2007, (aged 10) and D, born in 2009, (aged 8) are the subject of competing applications for parenting orders brought by each of their parents.

2. The parents were married but they separated on a final basis in April 2011. The children, particularly D, were very young at that time and continued living with their mother after separation, seeing their father on a regular basis until mid-2013. They have not spent any time with their father since then, save for one time in late 2013 when the father and E spent a short time in each other’s company at E’s school.

3. The father commenced these proceedings in late 2013. The matter was originally listed for a three day trial before me in late May 2015, after the Court had been told by the parties that it would take three days to complete. It did not finish in three days and I heard it on a fourth day immediately after the first three days. It still did not finish and was adjourned part-heard to be heard on another three days in September 2015, my trial calendar being full in the months in between. It did not finish on those three days either and was again adjourned part-heard to another three days in early February 2016, my trial calendar being full again in the months in between. The evidence was concluded at the end of the tenth day of the trial and directions made for the delivery of written submissions in the weeks thereafter by the legal representatives.

4. Unfortunately, counsel for the Independent Children’s Lawyer (“the ICL”) had become quite ill during the last part of the trial and was hospitalised. A different barrister was retained by the ICL and appeared for her on the last few days of the trial. Written submissions from the ICL were not received in accordance with the directions timetable I set at the end of the trial. On 6 May 2016, written submissions for the father were received by the Court. On 20 September 2016, written submissions for the mother were received by the Court.

5. Delivery of this judgment was delayed even further when proceedings were commenced in the Federal Circuit Court between the father’s current partner and her former husband in respect of their two daughters. The parties in this matter and in that matter obtained orders in late 2016 to be allowed to inspect the respective Court files. On 10 March 2017, written submissions from the ICL, signed by counsel for the ICL, were finally received in this matter. Whether that was because of the health issues experienced by counsel for the ICL in 2016 is not known. Suffice is to observe that it was disappointing for the written submissions of the ICL to have been delivered so long after the trial concluded and outside the timetable that had been agreed to at the end of the trial.

6. It is now six months since the Court received the final submissions in the matter. The responsibility to hear and determine so many other matters, as well as scheduled leave in that period, has prevented me from delivering judgment before now. I am aware that the length of time that this matter has been in the Court’s list, including the many months that have elapsed since the trial actually finished, has caused the parties an increased amount of stress, over and above that which they would naturally be experiencing through their involvement in a parenting dispute such as this in the ordinary course. That is indeed regrettable. I appreciate that delivery of this judgment is unlikely to alleviate all of their distress, though it determines the parenting proceedings between them and allows them to move forward with their lives from here.

The Issues

1. The father, who, I have said, has not seen the two children since 2013, wants them to live with him and to spend time with their mother, but through a graduated regimen, initially supervised, building to unsupervised, overnight stays on a weekly basis and during half of their school holidays. The mother wants the children to continue to live with her and to continue to have no contact with their father at all. The mother also wants sole parental responsibility for the children. The father wants parental responsibility to be equally shared between them.

2. The stark contrast in their positions is attributable to the central issue in the case. The mother asserts the father sexually abused their daughter and that, consequently, it is not in either child’s best interests to spend any time with the father. The mother says the child told her of sexual abuse by the father several days after it happened. There is also evidence of a recorded interview between the child and two police officers that took place soon after that, in which the child clearly asserts that she was sexually abused by the father. There is also evidence that the child told other persons of the abuse, too. 

3. For his part, the father denies abusing his daughter and asserts the mother maliciously coached their daughter to say that the father sexually abused her. He says that the mother falsely asserts belief that the child was abused by the father and has encouraged the child to believe that she was sexually abused by the father when she was not. The father asserts that this is emotional abuse of the child and that the children’s best interests would therefore be met by removing them from their mother’s care and moving them into his full-time care.

4. The gravity of the task of determining the proper parenting order to make as between these two parents in respect of these two little children is clear. The decision to be made is life-changing for all of the people involved, most particularly the two children. Of course, the best interests of the two children are the paramount consideration in the determination process. The weight of the responsibility reposed in the Court is not easily borne and, contrary to what is sometimes said of the Court in its deliberations in this type of case, the Court starts with no presumption that the allegations are made up or that where a little child tells someone she has been sexually abused that it must be true.

5. In the discharge of the Court’s statutory duty, it is guided by the provisions of Part VII of the Family Law Act 1975 (Cth)(“the Act”), including the objects of the Part and the principles that underlie those objects as set out in s 60B. It follows the statutory pathway set out in Part VII to the making of the parenting order considered proper, guided by the children’s best interests and the authoritative statement of principles found within relevant previous decisions of the High Court of Australia and the Full Court of this Court. The careful consideration of the evidence adduced by the parties themselves, the determination of any disputed facts, and the evaluation and weighing of the various parts of that evidence along the way, rounds out the difficult task. I will say more about the legal principles involved further on in these reasons.

The Background Facts

1. The mother and the father met in South Australia and commenced their relationship in 2004. They began living together in 2006 and married in 2007. 

2. The mother was born in 1966 and is now 51 years of age. She is a health professional and works part-time and is otherwise busy with parenting the two children. The father was born in 1980 and is now 37 years of age. He works in the arts and is now engaged also in undergraduate university studies.

3. The former couple moved to Brisbane with their baby son in mid-2008. They had D a year later. The mother’s parents and her sister live in Brisbane, which is seemingly the principal explanation for the family’s move to Queensland. The father’s parents and siblings live interstate. The former couple bought a home in Brisbane’s western suburbs when they moved here from Adelaide.

4. The responsibilities of parenting very young children apparently highlighted differences in their approaches to everyday life, as well as family life, and unhappiness in the relationship began to emerge. The mother became unhappy with the father’s work circumstances, (she asserts that he only ever worked part-time and did not stay in one job for very long) and also with what she regarded as his ‘low-vigilance and lack-of-structure’ approach to parenting their children. The father became unhappy with what he perceived to be the mother’s treatment of him and, unsurprisingly, their relationship began to flounder.

5. The father sought counselling in 2010. He asked the mother to join him but she did not. The mother returned to work on a casual basis in November, 2010.

6. Unhappiness continued and they separated in April 2011. The father moved out of the home the family lived in and took up residence with a flatmate not too far from the home. From separation until 2013, however, he would attend regularly at the family home spending time with the children, mostly in the mother’s company, though sometimes not, and also doing some household tasks like mowing the lawns.

7. The father’s evidence is that he and the mother enjoyed a good co-parenting relationship after separation. Upon separation, he agreed the children should live with the mother and he says he did not initially want to see the children shuffling between two households.  The two parents even continued to attend social functions with mutual friends and family.  There were no court orders in place and, by agreement, the father saw the children regularly. He also gave money to the mother for the children’s support, although the regularity and amount of what he gave was a matter that generated unhappiness between them.

8. It is agreed that whilst the father cared for the children in the post-separation period without the mother being present, such as when she was at work, he was not able to take the children away from their home for overnight stays in his care. It is clear the mother did not agree to that, apparently thinking that it was not in the children’s interests, and the father either did not seriously try, or was unable to persuade the mother to let that happen in 2011 and 2012.

9. In 2012, the father met Ms Deveraux and they commenced a friendship that developed into a relationship in early 2013. Ms Deveraux also has two children by a former relationship. Her co-parenting relationship with the father of those two girls had itself become troublesome by the time she commenced a relationship with the father. The commencement of the relationship between the father and Ms Deveraux coincided with a further deterioration in the relationship between the father and the mother and the father then pressed for more consistency and regularity in the time that the children spent in his care.

10. Unsatisfied with the responses that he was getting from the mother to his requests for more structure in the arrangements for their two children to spend time in his care, including away from the mother’s home, the father proposed the mother attend mediation with him to see if they could work out mutually satisfactory arrangements. His proposals met with resistance from the mother and his unhappiness with her increased.

11. On the advice of his new partner, the father began covertly recording conversations with the mother; both telephone and face to face conversations. Transcripts were made of some of those conversations.

12. The father says during one of the recorded conversations that took place in February, 2013, the mother angrily said to him when he was speaking to her about mediation, “I will make it harder for you”.

13. It is apparent on the evidence of the experienced psychologist, Mr B, who saw the family in 2014 and provided a written family report at the request of the ICL, that Mr B had read some of the transcripts of those recorded conversations. Having read those, Mr B reports that in a February 2013, face to face conversation the mother “makes a number of threatening remarks about making life difficult for the father.” He also reports that it was clear the parents were arguing during some of these recorded conversations and that this was taking place in front of the children who were intervening and entreating their parents not to argue.

14. The evidence supports a finding that the mother was becoming quite stressed in the first half of 2013. Medical records adduced into evidence by the ICL reflect the mother telling her treating general medical practitioner (“the GP”) on 27 March 2013, that the father had left her and that he “takes no responsibility” and that they were going to be having mediation in respect of their parenting issues. The GP makes a note that the mother “agrees to see counsellor for stress management” and that she (the GP) would be reviewing her again in a week’s time for a “Mental health assessment - local referral”.

15. The mother saw the GP again on 3 April 2013, to be assessed for a Mental Health Care Plan and a referral to a psychologist was written, although the GP noted that the mother “denies feeling depressed” but “feels cross and irritable with ex-partner situation” and that she “denies feeling nervous – rather frustrated”.

16. In her oral evidence though, when asked about this referral for counselling with a psychologist, the mother said that she decided herself that she would not take up the referral and did not have any counselling at that time.

17. Apparently undeterred from his course of pursuing parenting arrangements that better suited him, the father set up family dispute resolution mediation at the Ipswich Family Relationship Centre. The father and the mother both attended that on 13 June 2013, but the mediation process failed, the parties not being able to reach agreement as to the time and circumstances under which the children could spend time with the father.

18. After that unsuccessful mediation, the father continued to attend at the mother’s home to spend time with the children. Relations between the mother and the father continued to be very strained at that time.

19. Mr B said in his report that he read another transcript of a recorded conversation said to have been recorded on 28 July 2013. The date he attributes to that conversation is, without doubt, incorrect. The father said it was a conversation that took place on 28 June 2013, when the mother and the father were discussing the fact that the father had organised a further mediation through Legal Aid Queensland. The father asserts the mother said to him “if you want a war buddy, you’re going to get it”. Mr B confirms the transcript reveals the mother saying that and also saying to the father “Because I am protecting them … from you” and then, a number of times, “You have no idea”.

20. There was much dispute at the trial about the transcripts of the recorded conversations. The father had exhibited many pages of the transcribed conversations to his affidavit evidence. Objection was taken to their admissibility by counsel for the mother and multiple out-of-court discussions were had between all three barristers for the parties (including the ICL) on that question. The Court was ultimately told that the transcripts would not be adduced into evidence by the father. Accordingly, I did not read them, save for some quick perusal of parts that I undertook whilst the admissibility of them was still in dispute.

21. Nevertheless, the father’s evidence of some of those direct quotes from the conversations was included in his affidavit evidence, and Mr B’s reporting on the content of the transcripts, which corroborates the father’s evidence, was in his report. I did not understand the mother to deny that she said the things attributed to her by the father and Mr B, although I do not recall her being cross-examined directly on the point.  However, given that Mr B quoted in his report what he clearly considered were the noteworthy things the mother was recorded as having said in those conversations and she did not deny them, on the balance of probabilities, I accept that she said them. They are seemingly potent portenders of some trouble to come for the father if these parenting issues could not be resolved to the mother’s satisfaction. The father placed a lot of weight upon them in advancing his case in this matter.  Having said that though, I bear in mind that at all times the conversations were being recorded by the father the mother was unaware she was being recorded, whilst the father was fully aware what was happening. As such, the father was always at an advantage in respect of their content and it is unsurprising that there would be less content in such conversations that is incriminating or damaging to the father than to the mother.

The Critical Events

1. Events quickly took a very serious turn. There is little dispute about most of what happened on Sunday evening, 7 July 2013.

2. By agreement, the father was at the mother’s home spending time with the children. He played with the two children in the yard. At around 4:30 pm, the mother asked him to give the children a bath to get them ready for dinner. They went inside and the father and the two children went to the bathroom. It has a bath separate from the shower with a basin and vanity in between.

1. The father supervised the two children who were in the bath together and ensured, he says, the soap was passed from one child to the other. After a time, D apparently laughed and told her brother and her father that she had “peed” in the bath water. This may have prompted E to get out and start drying himself, but whether that is the case or not, it is accepted that E got out first and began drying himself off and dressing in his pyjamas.

2. The father says that D took longer to get out of the bath as she had to wash and squeeze the water out of the bath toys before putting them back in a tub on the side of the bath. He says that when he helped her out of the bath he let her start to dry herself for about thirty seconds before taking over. He says that he followed the usual routine of drying her hair, her face and ears, then one arm, before turning her around and drying the other arm. He says he checked to see that E had dried himself, saw him put on his pyjamas and do some “cool” hairstyles in the mirror and then he (the father) “dragged the towel down the front and back of D’s torso and continued down one leg asking her to turn around so [he] could dry the other leg.” He says he then “dried between her legs then one foot and then the other foot so [he] could dry the soles of her feet and between her toes”.

3. The father says that at some point during this drying process the mother came into the bathroom and “gave us all the order to hurry up because tomorrow was a school day and the children needed an early night”.

4. The mother agrees that she went into the bathroom whilst the father and two children were in there, but in her affidavit evidence she says when she went into the bathroom that both of the children were still sitting in the bath at the time. She agrees she went in to hurry them along a bit as they had “an early start in the morning”. In her oral evidence, the mother added that the father was sitting on a little stool beside the bath at that time.

5. The father says that D put on her “undies” before putting on her pyjama pants and T-shirt and socks then her pyjama top and jumper. He says that E left the bathroom when D was half dressed in her pyjama pants and T-shirt and socks. The father says the bathroom door remained open the entire time they were in there. The mother does not contradict that last fact.

6. A copy of an approved floor plan of the house was tendered into evidence. It reflects a distance of about 8-10 metres from one end of the kitchen to the door of the bathroom, with that distance being ‘dog-legged’ around a corner and along a hallway that would clearly have obstructed a line of sight from the kitchen to the bathroom and vice-versa. There is an opening in the wall between the family room at the end of the kitchen from which, if one was close enough, it might be possible to see through the doorway of the neighbouring “kids zone” to the doorway of the bathroom. Of that though, I cannot be certain.

7. The mother says that after she left the bathroom that evening and went back to the kitchen where she was preparing dinner for the children, the phone rang. It was the children’s paternal grandmother ringing from South Australia to speak with the family, particularly the children.

8. The mother says she answered the phone and spoke with the paternal grandmother before putting E, who had by then come out of the bathroom, on to speak with her. In her affidavit evidence, the mother says E then “spoke to his grandmother on the phone in the living room for a brief period” whilst she (the mother) stayed in the kitchen preparing dinner. She said “[e]ventually, [the father] and D came out of the bathroom and we had dinner. I don’t recall D speaking to [the paternal grandmother]”.

9. In contrast, the father says that the telephones at both ends of the call were on loud speaker allowing everyone to join in the conversation. He says D, having also come out of the bathroom, was involved, giggling and telling her grandparents she had “peed” in the bath. The paternal grandmother gave evidence at the trial that she remembered speaking with the mother first, then E, then the father and D. She also said that the phones might have been on speakerphone.

10. Telephone records tendered into evidence show that the paternal grandmother rang at 4:40 pm Central time (5:10 pm Eastern Australian time) and that the call went for 41 minutes and 30 seconds. Accordingly, it could not be described as a “brief” call. When the record was shown to the mother she accepted that and readily agreed that it was most likely, with the call having gone for that long, that D would also have spoken with her grandmother during the call.

11. There seems to be agreement that when the call concluded the children had dinner and the father stayed for a while longer.

12. The father also tendered into evidence a copy of a thirty second video that he recorded on his phone that night at 6:45 pm. It showed D, fully dressed in her winter pyjamas happily jumping around, up and down on the spot in the kitchen of her mother’s home before running towards her dad who was taking the film. The mother is heard to be urging her to stop the jumping so that she did not make herself sick after the dinner she just had. Sometime, not long after, the father left the home.

The Child’s Alleged Disclosure

1. E had been taken to see a doctor in mid-May 2013, with an infection in his right ear. He had been prescribed an antibiotic in syrup form. He was presented to the same medical practice again, just under a week later, on 20 May, found to have improved and the mother advised he was not in need of a further course of antibiotics. His mother took him to see a doctor again on 25 June 2013.  He had been complaining of dysuria (pain on urinating).

2. The mother says the doctor informed her that the boy was suffering from a fungal infection that was very common and prescribed a cream. The doctor had, of course, examined the boy’s genitals at the time and sent off a urine sample for pathology testing.

3. The mother says that in the context of the doctor having to examine the boy’s genitals, she had a conversation with the children about personal safety and had “explained to the children at the time of the visit [to the doctor] that no one was allowed to look at, play with or touch their ‘private parts’, … unless it was a doctor and [the mother] was with them”.

4. The mother says that on Tuesday evening, 9 July 2013, she showered the two children in her ensuite bathroom and as they were getting dressed into their pyjamas E said he was “glad [his] willie’s all better”. The mother says that she then “reiterated to the children that no one was allowed to look at, play with or touch their private parts” to which, she says, D spontaneously said “daddy did”.

5. The mother says she immediately asked the child to repeat herself and she did. The mother says she was “so shocked” but asked D to go with her to her own bedroom, using the pretence of getting some clothes for her, so that E would not be involved. She says she asked E to stay in her room and to finish getting dressed.

6. In her affidavit evidence, the mother says that when she and D were alone in D’s room, D told her that after her bath on Sunday night “daddy touched me and he put his finger in my wizza”. The mother says “wizza” is the word that D has always used to describe her private parts. The mother says that D told her that her father “did it without asking” and that he had “washed his hands”. D is also reported to have said that she had dried herself and was wearing only her pyjama tops but not her pants when “he pinched [her]”. The mother also reports that D said “I thought it was rude but he thought it was so funny”. The mother says she asked D why she did not come and tell the mother or cry and D responded with “I was very brave so he didn’t hurt me more, that’s why I didn’t cry”. The mother says that E then came into the room and the conversation changed.

7. The mother says she was in “total shock, stunned and very distressed” but asserts that she did not let D see that. She says that she made notes in a diary notebook about half an hour after this disclosure.

8. Copies of pages from the diary notebook were tendered into evidence. The notes the mother says she took that night, rather oddly, come as item 22 in a four page long list of matters of complaint against the father about his parenting. Those specific notes are as follows:

   22.      Sun 8.7.13    - was 7^th on Sunday – addit 21.7.13

   [D] told me on Monday 8.7 that after bath on Sunday night he touched her & put his finger in her wizza & that he had pinched her wizza while she was getting dressed once before.

   washed his hands.

   -she said he did it without asking.

   -she was able to show me.

   - they were in the bathroom for a long time

   - she said she dried herself & she had her

   Pyjama top on but not her pants when he

   “pinched her”  Quote – “ I thought it was rude but he thought it was so funny.”

   -    “I was very brave so he didn’t hurt me more, that’s why

   -    Spying   I didn’t cry”.

   -    Turning up at school, kindy swimming

9. The number 8 in the date on the first line was crossed out and a number 7 written in above it. Also the word Monday and the number 8 on the second line were crossed out and the word Tuesday and the number 9 written in over the crossing out.

10. In her oral evidence the mother said she was mistaken about the dates when she first wrote the notes and corrected them on the 21 July 2013, which is when she also wrote in the words on the first line after the date, so as to make it clear when she made the corrections.

11. Saying that she was worried about E, too, as a consequence of what D had told her, the mother says she approached E’s teacher the next day, Wednesday, 10 July 2013, wanting to speak with her. The mother says that a meeting with that teacher was arranged for the next day.

12. On Thursday, 11 July 2013, the mother met with E’s classroom teacher and the school Principal, Mr F. The mother says she did not know the Principal would be attending. I can only conclude the teacher must have arranged that, after the discussion with the mother the day before. On the evidence, it is not clear just why the Principal did attend.

13. Though the mother sets out matters discussed at that meeting in her affidavit of evidence in chief, she does not depose to having told the teacher and the Principal of D’s disclosure to her of Tuesday, 9 July. However, the classroom teacher gave evidence in the trial and told the Court she had a recollection of a meeting with the mother and the Principal that took place in a quiet room at which the child, D, was present with her mother. Somewhat contrastingly, the teacher said “it wasn’t a planned meeting”. She also told the Court that during that meeting the mother told them of D’s disclosure to her. The teacher said little was said of it and it was left for the mother to pursue as the meeting was principally to discuss E.

14. The mother goes on in her affidavit of evidence-in-chief to say that the Principal escorted the mother and D to his office after that meeting, on the way out of the school, and then left them. Quite clearly, D was with the mother at the school that day and was with her and the teacher and Principal when the mother told them of D’s disclosure.

15. The mother says that after the Principal left them, the father appeared and asked her what she was doing there “outside the office”. He was at the school as he had been going to the school and volunteering as a parent helper in the school tuckshop. I understand that was principally so that he could get to see his son more than the mother had been facilitating to that time.

16. The mother says in her affidavit evidence that the father asked her could he have a moment alone with D but that she (the mother, who had D in her arms at the time) declined this request. The mother says the father took D from her arms anyway, but that she (the mother) did not leave their side. The mother says she did not tell the father why she was at the school.

17. The mother says that on the same day she called Parentline to discuss her concerns about what D had told her, having found that resource after some internet research. Parentline is a telephone counselling service for parents run by the non-government organisation, Yourtown, the same organisation that runs Kids’ Helpline, a well-known counselling resource for children and young people.

18. The mother says she was referred by the Parentline counsellor to the Department of Child Safety (“DOCS”) and that she called DOCS that day, too. The mother says she spoke with a woman whose name was Ms G when she rang the DOCS number. She gave evidence that Ms G told her that she was not to leave the children unsupervised with the father at any time, but that DOCS would not intervene at that time as she (the mother) was willing and able to protect the children. In a witness statement the mother provided to the Queensland Police Service on 2 August 2013, the mother said that “the lady” at DOCS with whom she spoke on 11 July 2013, told the mother that she “wouldn’t start a file”. In that same witness statement, the mother also said that DOCS referred her to the Legal Aid Office and that the Legal Aid Office had referred her to DOCS.

19. It is not clear though, that the mother called the Legal Aid Office on 11 July 2013. She does not say she did in her affidavit of evidence-in-chief.

20. The ICL caused a subpoena to issue to DOCS for the production of its records. Interestingly, the records produced do not reveal any record of a notification made on 11 July 2013. By saying that, I do not mean to convey that I do not accept the mother’s evidence that she called DOCS that day. Considering the evidence, on the balance of probabilities, I accept that she did. When the mother told the police that the DOCS officer told her that she would not start a file, the mother did not know that the DOCS records produced to this Court would not reflect a notification having been recorded. I am unaware of actual DOCS procedure but the absence of a record of a notification is at least, prima facie, consistent with an assertion that a file would not be started.

21. I would be surprised if on Thursday, 11 July 2013, having heard the mother tell them of D having made a disclosure of sexual abuse by the father only a few days previously, that neither the Principal nor the teacher would not have asked the mother whether she had reported the disclosure to the proper authorities. I would be equally surprised if one of them had not gone on to advise her to do so after learning that she had not at that point in time. I expect that might very well have prompted the mother to go home and search online for the right number to call, resulting in the call to Parentline.

22. The mother says that the next significant development occurred the next day.

23. On Friday, 12 July 2013, the father texted the mother and asked if he could see the children to be able to give E some birthday gifts from the paternal grandmother. The mother agreed but says she did not want it to be at their home, so she suggested that they all meet at a park for a play. The father agreed and the meeting occurred with the mother staying a little away from the father and the children, talking to another woman who was also at the park, keeping her eye on the father and the children.

24. Later that same day, the mother took the children to a local shopping centre for E to have a haircut. She was in the barbershop with the children when, by chance, her sister and children also approached the same barbershop. The mother’s sister gave evidence in the trial. She said that when she saw the mother she immediately thought the mother looked “stressed and agitated about something”. She said that she and her sister walked outside the barber shop to talk, leaving the children in the shop. She said that she asked the mother “what’s wrong” and, at first, the mother did not want to tell her. Then, the sister said, the mother blurted out “[Mr Merritt’s] [the father] done something”.

25. The sister said that she then said to the mother “he hasn’t interfered with the children has he?” She said that she asked this because of the look of emotion and despair she could see in the mother’s eyes. In her oral evidence she said she had never seen her sister look so upset as she did at that time. She said that the mother nodded affirmatively to her in response. She asked the mother “how do you know?” She said the mother replied “D told me”. She asked “when did it happen?” The mother replied “a few days ago”. The sister said she asked “have you taken D to the doctors?” to which the mother replied “no”. The sister said that she then told the mother “you need to take D to the doctor’s to get her checked out and to make sure she is okay”. The sister said E came up to them then and the conversation about that subject stopped.

26. The mother’s sister said that she had no contact with the mother again before 17 July 2013.

27. The mother said that she later contacted the medical practice she attended and made an appointment to see Dr H, a doctor she knew and trusted. She was not able to get such an appointment before Wednesday, 17 July 2013. Dr H is a GP who specialises in women’s reproductive health. The mother had been her patient for some time.

28. The mother said that Dr H read the diary notes the mother had made about D’s disclosure and spoke with her and also with D. The mother said that Dr H referred her straight to J Hospital for a specialist examination as well as calling the police and speaking to them about the matter. The mother said that the doctor told her not to let the father see the children until things became more certain.

29. Dr H also gave evidence at the trial. She said that she saw and spoke with the mother first on 17 July 2013, in the absence of the child and that the child could not have heard that conversation. She said that the mother had related the events of the disclosure of Tuesday, 9 July 2013 to her. The doctor recalled that the mother had told her she had written down notes about these events and showed them to her. The doctor did say that she did not take the notes from the mother and did not look through them. She said that the mother had said to her “please help me. I don’t know what to do.”

30. Dr H said that the child was then brought into her room and sat on the mother’s knee, cuddled up to the mother. The doctor said she thought she said to the child “do you have something to tell me?” and the child appeared shy and coy. The doctor said she thought the mother then said “it is okay to tell Dr [H]”. The doctor said that she took a note of what the child said to her that day. She recalled the child telling her that her father had “pinched her wizza” and put his fingers “in there”. In the doctor’s notes kept in the practice’s computer records the doctor also had noted the child had said “and it hurt” when telling the doctor what had happened.  

31. The doctor said that she took what the child said “seriously”, having no reason to disbelieve her.  Indeed, under cross-examination, the doctor said that there was nothing in the child’s presentation that caused her to think that the information the child gave her was rehearsed. She went as far as saying that she thought the child believed something had happened to her.

32. The doctor’s notes also recorded that the child “had her pyjama top on but no pants”, but in her oral evidence the doctor confirmed that information had been given to her by the mother not the child. Her notes also recorded that the child’s “wizza has stopped hurting now”. The doctor also confirmed in her oral evidence that they were not words of the child but information given by the mother.

33. Dr H did not perform a physical examination on the child. She rang J Hospital to discuss the matter with a child safety nurse who discussed the call with a paediatric Registrar. The doctor was told to refer the mother to the police as it was more than three days after the alleged event. She then called the Suburb K Police Station and made arrangements for the mother to take the child straight there to be interviewed by Child Protection and Investigation Unit police officers who would then determine if a physical examination was subsequently required.

1. The doctor then made a notification to the Department of Child Safety as she was mandatorily required to do. Dr H also corroborated the mother’s evidence that she (the mother) had contacted the Department on 11 July, as her notes reflected the mother telling her she had done that on that date and spoken with a woman whose name was “Ms G”.

2. The mother took D and went from Dr H’s rooms straight to the Police Station. The mother was at pains to assert in her evidence that she did not talk to the child about the disclosures and the subject matter of them between the evening of the disclosure and the time that she was interviewed at the police station. However, there were some things that the child said to the police during the interview that I am satisfied she could only have heard from her mother, such as asserting that her mother thought her daddy was going to go to gaol.

3. Under cross-examination, the mother did concede that she had a telephone conversation with her own mother in the car whilst driving D to the police station that afternoon. Whilst she said she did not have ‘Bluetooth’, she conceded the phone could have been on loud speaker and that D would have heard at least the mother’s end of the conversation and possibly the maternal grandmother’s end as well.

4. The maternal grandmother gave oral evidence in which she told the Court that she first learned of D’s alleged disclosures when the mother phoned her and told her about them when she was driving D to the police station. When asked if she could remember what the mother said to her during that conversation, the maternal grandmother said that she could not, but she was clear that the mother was “very, very upset”. Indeed, I asked the maternal grandmother if what the mother had said to her “shocked [her] to [her] core” and the maternal grandmother responded “absolutely”. I then said to her “she must have told you something about it” to which she responded “my word”.

5. I am satisfied then that the mother clearly said things to her own mother on the telephone whilst in the car on the way to the police station in the presence of D about D’s alleged disclosures that were clearly understood by the maternal grandmother. I am satisfied that D herself would most likely have heard that.  It is entirely possible that D heard her mother and/or her grandmother talking about the father going to gaol during this phone conversation.

6. In the early afternoon on 17 July 2013, D was interviewed by two female plain clothes police officers attached to the CPIU. They interviewed her in a child friendly room and recorded the interview pursuant to s 93A of the Evidence Act 1977 (Qld) with video recording equipment. The video recording was adduced into evidence in these proceedings and played during the trial. A typed transcript of the interview is also in evidence.

The Child’s Recorded Interview

1. After a lengthy period of discussion about matters that the police asked questions about apparently to make the child feel comfortable, the interviewer turned to discussion about things that happened on the day the incident was alleged to have occurred. The police directed the child’s focus to that day by asking her about the games she played that day with the father. She related to the police officers that she and E and their father were kicking a football around in the yard and that the football was accidentally kicked over the neighbour’s fence.

2. That accords with the undisputed evidence that on Sunday, 6 July 2013, the children were kicking a football around in the yard with their father.

3. The police then asked the child about bathing or showering and she tells them she had a shower on that day, the Sunday when the father was there, though she does explain to them, somewhat inconsistently with that, that they (she and E) have a shower on days that they go to kindy and school and have a bath on the days that they do not go to kindy and school.  

4. A little later, after the child has talked about toileting, the interviewer rather clumsily brings her back to the question of being dried after a bath or shower. The child answers saying “myself”. The police interviewer then said to her “You can do that yourself?” to which the child answers “and only mum can dry my wizza and my bum”.

5. The police interviewer then says “on the Sunday when Daddy gave you the bath, did you dry yourself?”   It should be observed at this point, that the child had not said to that point in time that her father had bathed her or that it was a Sunday.

6. The child’s response was “yes and I had half”. The interviewer then said “You had half, what do you mean by that? What’s that?” and the child answered “I had half, shirts, my jumper, my other shirt and the other shirt”. She was then asked about the jumper she said she was wearing and she described it. That jumper was adduced into evidence as an exhibit and the child’s description of it in that interview was reasonably accurate.

7. The child then moved the subject to swimming before the police interviewer takes over again and directly asks the child “you went to the doctor today yeah? Why did you go to the doctor?” The child says “I was playing dot to dot there” and the police interviewer focuses the conversation again saying “So were you sick? Is that why you went to the doctor today?”  The child answered “No, I wasn’t sick”.

8. The conversation then goes:  

   PCS[L]:         No, what was wrong?

   [D] MERRITT:         I was playing dot to dot for no one, only for me no one

   PCS[L]:                   So what did you have to go to the doctor for?

   [D] MERRITT:         Cause he pinched my wizza

   PCS[L]:                   Who pinched your wizza?

   [D] MERRITT:         Dad

   PCS[L]:                   Daddy pinched your wizza?

   [D] MERRITT:         He’s a naughty Dad, Mum thought he was going to gaol

   PCS[L]:Is that right?

   [D] MERRITT:         But he didn’t

   PCS[L]:So, can you tell me about, what did Daddy do when he pinched your wizza?

   [D] MERRITT:         He poked his finger in the hole where my wee comes out

   PCS[L]:When? Do you know when this happened?

   [D] MERRITT:         A long time ago, on Sunday

   PCS[L]:On Sunday, is that when, when Daddy bathed you?

   [D] MERRITT:         Yeah

   PCS[L]:Where did he do that?

   [D] MERRITT:         And I did a wee in the bath

   PCS[L]:You did a wee in the bath did you?

   [D] MERRITT:         And E’s, and he swallowed the wee

9. The information the child gave about urinating in the bath is also consistent with what the parents agree happened on the night of the alleged incident.

10. A little later in the interview the child’s attention is brought directly back to the allegation. The following exchange took place:

    PCS[L]:                   When Daddy pinched your wizza, did it hurt?

    [D] MERRITT:         Yeah

    PCS[L]:                   It did

    [D] MERRITT:         And I didn’t cry

    PCS[L]:Why didn’t you cry?

    [D] MERRITT:         Cause I was so brave

    PCS[L]:You were very brave, and did Daddy say anything to you when he pinched your wizza?

    [D] MERRITT:         He just, said, (held her finger up to her mouth as in a “shooshing” gesture) and didn’t let me, and he keeped on hurting into me and didn’t let me tell mum.

    PCS[L]:He didn’t. Why? Why didn’t he, so

    [D] MERRITT:         Well his funny hair

    PCS[L]:So lets pretend Mickey is you, right, can you show on Mickey what Daddy did to you when he pinched your wizza? (the child was holding a Mickey Mouse soft toy)

    [D] MERRITT:         Mm (child demonstrates by grabbing the crotch of the Mickey mouse doll with her hand)

    PCS[L]:So he put his finger in the hole, that what you said before

    [D] MERRITT:         Mhmm

    PCS[L]:Do you remember which finger it was?

    [D] MERRITT:         This one (child showing the first finger on her right hand)

    PCS[L]:This one, the pointer one

    [D] MERRITT:         One, one to one

    PCS[L]:One finger

    [D] MERRITT:         Number one

    PCS[L]:Number one, oh yes, that’s the one we hold up for number one, isn’t it?

    [D] MERRITT:         And number, this is a number one as well

    PCS[L]:Oh

    [D] MERRITT:         Number two, number three, number four, number five, number six, number twenty

    PCS[L]:so

    [D] MERRITT:         Number twenty-one, twenty-two

    PCS[L]:So when Daddy put his finger in, you held it like that, is that what you did?

    [D] MERRITT:         He pressed it

    PCS[L]:So, did you actually feel him put his finger in the hole?

    (child nods affirmatively)

    PCS[L]yeah, okay, and did you tell Daddy? Did you say anything to Daddy? What did you say to Daddy?

    [D] MERRITT:         Don’t please do that

    PCS[L]:Don’t do that, and what did Daddy say when you said don’t please do that?

    [D] MERRITT:         He keeped on doing it

    PCS[L]:He kept doing it. He many times did he do it? 

    [D] MERRITT:         [E’s] age

    PCS[L]:[E’s] age, six times?

    [D] MERRITT:         Yeah, Mr. …. no one (giggling and playing with the Mickey Mouse toy)

    PCS[L]:So, when, when Daddy did that, can you, what did he do, you said he did it six times. What did he do?

    [D] MERRITT:         He waved my bum in his face

    PCS[L]:He waved your bottom in his face too. How did he do that?

    [D] MERRITT:         He just

    PCS[L]:You pretend Mickey’s you, and you’re Daddy, you show me what he did

    [D] MERRITT:         I don’t know. I don’t know

    PCS[L]:You don’t know, okay

    [D] MERRITT:         It’s snowing in here

    PCS[L]:Oh it’s all coming apart, so where were you when Daddy poked your wizza?

    [D] MERRITT:         In the bathroom.  I want to go to Mum now

    PCS[L]:Yeah okay, in a moment. Okay. Has Daddy done this before?

    PCS[M]:When you were in the bathroom with Daddy, where was [E]?

    [D] MERRITT:         Talking to [Grandmother], and mum was talking on the phone, and Mum was talking on the phone first and then we were

    PCS[L]:Oh

    PCS[M]:Oh

    PCS[L]:Who’s [Grandmother]? Is that your grandma?

    [D] MERRITT:         No, Its Daddy’s

    PCS[L]:Oh, Daddy’s grandma. Daddy’s mum, oh okay, so when did you tell Mummy about Daddy touching your wizza?

    [D] MERRITT:         He just keep on doing it

    PCS[L]:He kept doing it, and then when he once he did that, what happened then, did you put your jammy pants on?

    [D] MERRITT:         So he didn’t do it, then he stopped

    PCS[L]:Did he say anything to you when he stopped?

    [D] MERRITT:         No

    PCS[L]:Okay, then you put your jammys on and then what did you do after you got dressed? Did Daddy go home?

    [D] MERRITT:         No he’s sit, he didn’t go at bedtime, He actually went at bedtime

    PCS[L]:So did Daddy stay for dinner, okay

    [D] MERRITT:         When we were finished all our dessert and milk

    PCS[L]:Oh okay

    [D] MERRITT:         And I jumped and jumped and jumped and jumped

    PCS[L]:Hmmmm

    [D] MERRITT:         And then I run and said, that’s a …. Jump and jump and jump and run

    PCS[L]:Hmm, is that right?

    [D] MERRITT:         And jump and jump and run and keeped on doing that

    PCS[L]:Oh okay

    [D] MERRITT:         Not good one, not good one 

    PCS[L]:Is that right? So after Daddy left, did you tell Mummy what happened? You did?

    [D] MERRITT:         I did it in the morning

    PCS[L]:In the morning and what did Mummy, what did you tell Mummy?

    [D] MERRITT:         And she think Daddy could go to the bum police

    PCS[L]:To the bum police

    [D] MERRITT:         It’s not the bum police

    PCS[L]:You’re silly, so, umm, and then Mummy took you to the doctors today is that right?

    [D] MERRITT:         Mmmhm

    PCS[L]:Okay, Can you think of anything else? (said to other officer)

    PCS[M]:Only when, she said it before

    [D] MERRITT:         Only leave the pants off now

    PCS[M]:I was just gonna ask her to tell me what the other times

    PCS[L]:Oh your gonna take the pants off (off the Mickey Mouse toy)

    [D] MERRITT:         Cause they’re falling down

    PCS[L]: Okay, so you said Daddy’s done this before, poked your wizza, yeah, can you tell me about the other time he did that?

    [D] MERRITT:         Did that for six months

    PCS[L]:Six months, so can you tell me one other time that he’s done that? Where were you? Do you remember? Yeah, where?

    [D] MERRITT:         In the bathroom

    PCS[L]:In the bathroom

    [D] MERRITT:         And once Daddy and Uncle [Mr N] and Mr. man no one he came to swimming and Mr. no one

    PCS[L]:Is that right, what happened in the bathroom the other time, do you remember, no, okay, alright

    [D] MERRITT:         Let’s just go to Mum

    PCS[L]:We will go to Mum in 2 seconds, so

11. The interview then moves off into a discussion of safety and the identification of people the child can speak to if she is feeling scared.

The Medical Examination of the Child

1. After the interview was concluded, the police asked the mother to take D to J Hospital for an examination. She did that and the child was examined by a doctor who was supervised by an experienced Consultant Paediatrician. The child was given a colposcopy examination of genital and anal areas using a light source with magnifying capabilities, which was digitally recorded. The allegations were not discussed with the child and she made no verbal disclosures during the examination, though she was reported to be co-operative and interactive whilst being examined.

2. The outcome of the examination was described by the Paediatrician as normal with no evidence of acute injury, healed injury or discharge. In her statement provided to police, the doctor said:

   The hymen is a very sensitive tissue in pre-pubertal girls. Direct contact with it, such as with a finger, is likely to be painful even without causing significant trauma to it (such as a hymenal transection). However, this type of injury would usually be accompanied by some bleeding. After significant trauma, the genital region can heal fully within a week, and often without scarring.

   As this examination occurred ten days after the alleged assault, it is very likely that even if there had been any acute injury to the hymen, it would have had time to heal.

   Therefore, the normal ano-genital exam findings can neither confirm nor refute the allegations made of digital-vaginal penetration occurring on the 7^th July 2013.

Evidence of a Further Disclosure

1. After they finished at the hospital that day, the mother and D went to the mother’s sister’s home to pick up E. They stayed to have dinner there and whilst the mother and her sister prepared dinner, the mother’s 10 year old niece took D upstairs for a shower.

2. The mother’s sister gave evidence that a few months’ later, her daughter told her she needed to tell her something but had been worried she might get into trouble.  The mother’s sister said her daughter then told her that D had disclosed to on the night that D had been to the hospital with the mother when they were upstairs together by themselves that her father had hurt her “wizza”. The 10 year old girl also told her mother that D had very pretty knickers on that night that had been given to her by the hospital. The mother’s sister said she reported this information to the mother at the time her daughter told her about it.

Subsequent Events

1. On 26 July 2013, the mother went to the Suburb K Police Station and participated in what is called a “pretext phone call” with the father. The call is made on police equipment and is recorded without the person who is called knowing it is being recorded by police. During that call, the mother informed the father that the child had disclosed to her that the father had touched her on her genitals after the bath on the Sunday night, 7 July 2013 and asked him for his response. The father told the mother that he had dried D after the bath that night but had not touched her inappropriately on the genitals.

2. Two nights later, on Sunday, 28 July 2013, the father was asked by police to attend the station to participate in an interview. After he spoke with other persons by phone, the father declined to be interviewed by the police. He was then arrested and charged with the “rape” [digital penetration] of D on Sunday, 7 July 2013. He was kept in custody overnight, being released on bail after he appeared in Court to answer the charge. His bail conditions included that he had no contact, directly or indirectly, with D, and from around this time onwards the mother would not let the father spend any time with either of the children in any event.

3. The father subsequently asked the mother to be permitted to spend time with E, but she would not allow it. 

4. On 11 September 2013, the father filed an Initiating Application in the Federal Circuit Court seeking interim and final parenting orders. He sought interim orders for equal shared parental responsibility, for the children to live with the mother, and for E to spend time with him from after school Friday to 5.00 pm Saturday each week and one other night per week. He also sought time with D on the same basis following the determination of the criminal charges.  He also sought orders that the children’s time increase over three months to seven out of fourteen nights. On a final basis, the father sought orders for equal shared parental responsibility, that the children live with him and spend time with the mother each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday and from after school Tuesday until 7.00 pm Tuesday.

5. At some time around this time, the administration of the school that E was attending, specifically the school’s Principal, directed the father that he could no longer come to the school to see E as he had been.

6. On 15 October 2013, despite having been directed by the school’s Principal to stay away the father went to the school and attempted to see and speak with E at the after school hours care service without the mother’s consent or the consent of the school’s administration. 

7. In an affidavit sworn by the father on 30 October 2103 and filed in the FCC on the same date the father said of this event:

   On 15 October I went to [E’s] school and spoke with the Principal Mr [F] about see (sic) [E]. Mr [F] went to the after school care area and brought [E] back to his office. I only spent about six minutes with [E], with Mr [F] present. [E] was extremely happy to see me and Mr [F] said “he had a big grin on his face” as [E] entered the Principal’s office.

8. I consider that was written to give the impression that the father went to speak with the Principal first, effectively to seek permission to see E that day. That is not what actually happened.

9. At the trial, the father conceded that he did not go to the Principal’s office first. He actually went to the after school hours care facility first to see his son. A staff member of that facility saw him looking at the school bags and approached him and spoke with him. He was then escorted to the Principal’s office. He spoke with the Principal who did agree to let him meet and speak with his son in the office, in the Principal’s presence. The father recorded his conversation with the child on his mobile phone.

10. At the trial, the father strongly expressed the view that it was his right to see E and that his desire to see his son determined his conduct on that day. He was asked by counsel for the ICL why he did not go to the Principal’s office first, to which he responded “I knew [the Principal] would be notified first.” He clarified that by saying that he knew that the staff would have to talk to the Principal about his visit before he could see his son. He then said he was “expecting to be turned away”. He was quite unwilling to concede any wrongdoing or lack of judgment on his part for his actions that day, notwithstanding the fact that he had been directed by the school not to attend at the school trying to see E.

11. I was left unimpressed by the father’s evidence about that matter. His evidence, sworn just two weeks after that event, had not been frank and was given in a way that I consider could only have been meant to mislead the Court in which it was filed. I also did not believe his oral evidence at the trial that he went to the after school hours care facility knowing that the Principal would be called and expecting to be turned away without seeing his son. I am satisfied that he went to the ‘out of school hours care facility’ hoping to get to see and speak with his son without being intercepted or stopped, fully aware that he had been previously directed by the Principal not to come to the school.

1. On 28 October 2013, the mother filed a Response and a ‘Notice of Child Abuse, Family Violence, or Risk of Family Violence’ in the FCC proceedings. She sought interim orders as well as final orders that she have sole parental responsibility, that the children live with her and that the father spend time and communicate with the children at all times as directed by the Court appointed expert.

2. On 4 November 2013, Judge Purdon-Sully of the FCC made interim orders that the children live with the mother and not spend any time or have any contact with the father. Her Honour also ordered that an ICL be appointed. Those orders have governed the parenting arrangements ever since.

3. In December 2013, the child, D, started seeing Ms O, a counsellor with P Group, for counselling arranged by the mother after she tried, but could not get the child in, to have counselling at Q Group.

4. Ms O’s notes were adduced into evidence and she was also cross-examined at the trial. She told the Court that she was engaged by the mother on the basis that the child had disclosed having been sexually abused by her father.  Ms O expressed the opinion that D appeared to believe that she had been sexually abused by her father. Her evidence was also that the child had spoken of experiencing sexual abuse to her.

5. In the third weekly session with Ms O, D is recorded by Ms O as responding to a request to tell Ms O about “daddy” by saying that she was drying herself after washing when her father “hurt [her] whizzer” and that “daddy is a bad person”.

6. On 7 February 2014, Judge Purdon-Sully transferred the proceedings to this Court with a request that it be considered for inclusion on the Magellan List. On 3 March 2014, the matter was designated Magellan in this Court by Registrar Brooks.

7. The Office of the Director of Public Prosecutions subsequently made a decision to discontinue the prosecution of the father and the criminal charge was withdrawn. The mother was very disappointed about that decision. It made no difference to her belief or her position in these proceedings.

8. In November 2014, the father made an Application in a Case to have Judge Purdon-Sully’s interim orders varied so that he could start seeing the children again. Principal Registrar Filippello heard and dismissed that application on 27 November 2014.

9. On 5 December 2014, the father filed an Amended Initiating Application seeking final orders that the parents have equal shared parental responsibility, that the children live with the father and spend time with the mother for 2 hours every Sunday supervised for six months increasing to 9am – 5pm unsupervised every Sunday for the next six months and finally to 9am Saturday until 5pm Sunday unsupervised thereafter and half the school holidays.

10. On 9 January 2015, the mother filed an Amended Response to Initiating Application seeking final orders that the mother have sole parental responsibility, that the children live with the mother and that the father shall not spend any time or have any contact or communication with the children.

11. The trial commenced, as I have said already, in May 2015.

By what Principles are the proper parenting orders to be determined?

1. The High Court has determined that parenting orders proceedings under the Family Law Act 1975 (Cth) (“the Act”) are not about parents enforcing a parental right to have a child live with or spend time with them, but rather that this Court has a duty in such cases to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. The High Court observed that in doing that the Court will:

   …give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used in the legislation at the time of the High Court’s judgment in this case], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[1]

   [1]M v M (1988) 166 CLR 69 at page 76.

2. In that same case, the High Court also relevantly observed that:

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[2] (my emphasis)

   [2]           At page 76.

3. The Judges of the High Court said:

   …the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[3]

   [3]           At page 75.

4. The High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting orders the Court thinks proper.

5. As is well known, this Court hears large numbers of parenting cases involving allegations of sexual abuse each year. In the six and a half years I have been a Judge of the Court, I have heard and determined very many. Having said that, in deciding each individual such case, it is always still worth reflecting upon the seriousness of the central issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.

6. I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was twelve years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129.

7. However, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say (at pp 76-77) the following:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[4]

   [4]What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:

   s 140(1)  In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)    Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence; and

   (b)      the nature of the subject matter of the proceeding; and

   (c)      the gravity of the matters alleged.

   (d)     

8. Relevantly, their Honours continued (at page 77) and said:

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

   …

   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 (my emphasis).

9. This has become known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129 who said (at para 111):

   In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities, abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S… do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

10. At paragraph 105 of that judgment, the Full Court Judges, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:

    Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

    In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child? 

11. Murphy J also discussed the question of risk assessment in his judgment in Harridge & Harridge [2010] FamCA 445. Having referred to N and S and The Separate Representative (supra), his Honour proceeded to adopt the following list of inquiries in relation to risk assessment:[5]

    (1)     What harmful outcome is potentially present in this situation?

    (2)     What is the probability of this outcome coming about?

    (3)What risks are probable in this situation in the short, medium and long term?

    (4)What are the factors that could increase or decrease the risk that is probable?

    (5)What measures are available whose deployment could mitigate the risks that are probable?

    [5]Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

12. Respectfully, I also consider these useful questions to consider in this process.

13. As I have said, the mother in this case asks the Court to make orders that the children spend no time with the father at all. It would be, of course, a very serious matter to order that a child neither spend time with nor communicate with a parent. Such orders should not be made lightly. Nevertheless, such orders are made where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.

14. Ultimately, I am satisfied the proper parenting orders to be made in this case are to be determined by considering all of the evidence against the “primary” and “additional” considerations mandated by s 60CC of the Act, with the most attention being paid to the determination of whether the child, D, and her brother, E, will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in their father’s care and whether, if there would be such an unacceptable risk, it could be ameliorated by conditions such as supervision being imposed on any time they spend with their father.

15. Of course, I acknowledge that the statutory pathway set out in Part VII of the Act for determining the proper parenting orders to make must also be followed.

Discussion of the Evidence

1. When Mr B gave oral evidence at the trial, he agreed with the proposition put to him that the child, D, believes that sexual abuse occurred and also believes that her father is not safe to be around. She was just five years old when he interviewed her, it was just over a year since the abuse was said to have occurred, and the child had spent no time with her father since shortly after that day. Indeed, in his written report prepared in October 2014 Mr B had recorded that D “believes her father touched her inappropriately”.

2. In that written report, Mr B had assessed both of the children as developing normally in terms of cognition, motor skills and language. He considered them both to have above average cognition and he said that D, in particular, presented as an aware chid, with good focus and concentration.

3. Mr B also reported that neither child spontaneously expressed a wish to spend time with the father at his interviews with them and that each seemed focused on negative memories of their father. At trial, Mr B agreed though that it would be naïve to think that there had been no influence of the children by their mother, particularly given how she feels about the matter, in the time between the relevant events and his interviews with them. I am satisfied that such influence would have occurred. Both children, I accept, had what can only be described as good relationships with their father before the events that are the focus of this determination unfolded. However, that is not to say that I am satisfied that the mother has maliciously coached the children, particularly D, to make up the factual allegation that her father touched her in a sexually inappropriate way. Believing that the father sexually abused D, it would be quite difficult for the mother to completely shield the children from her feelings about him.

4. However, Mr B described the mother as responding to his questions in “an open and genuine manner” when he interviewed her, though he said she was mildly anxious. He said she did not exhibit any unusual behaviours, displayed no aggressiveness or excessive timidity and her statements were not marked by any grandiosity or paranoia. He said that he considered she took the assessment seriously and was child-focused in her remarks and in her behaviour. He considered her personality functioning to be normal and observed her to engage with her children in a warm and empathic manner.

5. Those are all descriptions of the mother that I could also generally apply to her after my observations of her in Court during the many days of the trial that took place over an extended period of months. That is not to say that I believed every word of evidence that she gave. For example, I do not accept the veracity of the oral evidence she gave about the enrolment form she completed in November 2012 for D to attend a local kindergarten (Exhibit 14). Under cross-examination by counsel for the father, the mother was asked questions as to why the father’s name and contact details were not included on the form at all. At one point, the mother said that the father was listed as a contact person on the form. That was simply not true. At one point, the mother said she had not left the father’s name and details off the form “on purpose” and maintained it was not a deliberate omission. I do not accept that. It clearly was a deliberate omission that she was not prepared to admit, perhaps thinking such an admission would harm her case.

6. I also thought that she reconstructed or blocked out some parts of the history to suit her case, though I was not convinced that was intentionally and dishonestly done. An example of that was her evidence about the phone call with the paternal grandmother on Sunday 7 July, 2013. She said she did not remember the phone call taking place on loud speaker phone as I am satisfied it did. She said she did not recall D coming out of the bathroom and speaking with her grandmother during the phone call that night which I am satisfied she did.

7. I also do not accept that the notes at paragraph 22 on page 9 of the notebook that was made Exhibit 17 constitute a contemporaneous note written only a half hour after the child told the mother on Tuesday 9 July, 2013 of her father touching her genitals after the bath on the Sunday, as the mother maintained. 

8. I was also a little concerned about some of the things she was reported to have said to the father in arguments they had in the first half of 2013, suggestive of her being motivated to make things tough for the father in their parenting dispute.

9. All of these matters I have just mentioned gave me cause to very carefully scrutinize all of the mother’s evidence, particularly in the light of the father’s firmly expressed position that the mother has maliciously coached D to make false allegations against him. Ultimately though, my views and findings in respect of those aspects of the mother’s evidence do not cause me to consider that all of her evidence, particularly that part of her evidence going to the circumstances in which the conversation took place with D on Tuesday 9 July 2013 and its content, could not be accepted as truthful. I do not consider that the mother is maliciously lying about those things. Having seen and heard her evidence, having seen the child’s recorded interview with police, having seen and heard the evidence of Dr H, Ms O, the mother’s sister and Mr B, I am satisfied that the mother did not make up the evidence about the child’s statements to her and did not maliciously coach the child to keep repeating them to the point that she herself believed them. Although the mother may very well have influenced the child by her words uttered and feelings displayed in the period since that initial conversation, I am satisfied that the mother has not maliciously and dishonestly caused, encouraged or “coached” the child to make the statements that she did make to third parties about what happened to her after the bath on Sunday, 7 July 2013.

1. I am also satisfied that the mother truly and honestly believes that her daughter was touched in a sexually inappropriate manner by the father on that night and that she needs to be protected from the risk of that happening again in the future. I am satisfied that the mother has accurately recalled, as well as she possibly could, and repeated what she heard her daughter say and that she considers those things to be true assertions of fact by her daughter. 

2. Though the mother did not immediately contact authorities such as DOCS or the police or immediately take the child to a doctor for an examination after that first conversation, I am not dissuaded from my satisfaction that she honestly believed and continues to honestly believe that the father inappropriately touched D in a sexual way that amounted to sexual abuse of her. The conversation with D happened on Tuesday evening, 9 July 2013. The mother says she was having difficulty sleeping in the nights after that because of worry about what D had told her. I accept that the mother met and spoke with her son’s teacher and the school Principal at school on Thursday, 11 July 2013. That the school Principal was present at that meeting supports a finding that it was an arranged meeting. I accept it was. I accept that the mother told the teacher and the Principal of D’s disclosures and her concerns at that meeting. After that meeting, the mother ran into the father at the school, and I accept that she would not accede to the father’s request to have some time alone with D, consistent with her belief, already forming.

3. I accept that the mother contacted Parentline that same day and spoke with a counsellor about her conversation with D of Tuesday, 9 July. I accept that she was referred to DOCS and spoke with a person whose name she recalled as “Ms G” who told her not to leave the children in the unsupervised care of the father, but who also told her that a file would not be opened and referred her to the Legal Aid Office for further assistance.

4. I accept that the mother then ran into her sister on Friday, 12 July and told her of the conversation with D and her concerns. I accept that her sister told her that she needed to take D to a doctor to have her checked. I also accept that the mother determined to act on that advice and made the earliest appointment she could get with her preferred general medical practitioner for Wednesday, 17 July 2013. I accept that after she saw the doctor on that date she took the child for a specialist examination at J Hospital and then took her to the police where she reported her complaint and the child was interviewed by specialist police officers from the Child Protection and Investigation Unit.

5. I am quite satisfied that her actions and reactions in this respect were not unreasonable and are all entirely inconsistent with her having an honest belief that the child had been touched in a sexually inappropriate way by the father on Sunday, 7 July 2013.

6. For the ICL, it was submitted that the evidence does not support a finding being made that the mother “coached” D to make the allegations of abuse against the father. None of the witnesses Mr B, Dr H, Ms O, Senior Constable M, Senior Constable L gave evidence that supported a finding that the mother had “coached” D to make false allegations against her father. Indeed, quite to the contrary, Dr H, Ms O and the police officers each gave evidence indicating that each had turned their minds to the question and consciously considered that in fact the child’s statements were not reflective of coaching or rehearsal and that each was satisfied that the mother had not caused the child to say what the child had said to each of them. Mr B, too, agreed that he had not seen anything in the child’s presentation to him that made him think that she had been coached by the mother. Indeed, he even agreed with propositions put to him by counsel for the ICL that certain aspects of the child’s recorded interview with the police which he had carefully watched and reviewed were completely consistent with reliability of the statements made. I agree with that assessment.

7. The father’s position pre-trial (as demonstrated by the matters reported by Mr B arising from his interview with the father) and during the trial was always clear. He asserted a firm belief that the mother had created the case against him, coaching the child to make false assertions of fact against him, to meet the objective of preventing the father from having a parental role in the children’s lives. As presented by the father, it was just an extension of the behaviour that he said was displayed by the mother prior to and around the time when he began asserting a desire to have the children spend more time in his care, unsupervised by the mother. He made that all clear in the witness box during his cross-examination by counsel for the mother and counsel for the ICL. Principally, throughout the trial, that is how counsel who represented the father ran his case, consistent with his position.

8. However, as counsel for the mother points out in her written submissions, the father, through the written submissions of his counsel, changed his position from one of unswerving commitment to the assertion that the mother had maliciously created the case against him and had used deliberate coaching of the child to achieve that, to one that included the submission that the mother “unknowingly or otherwise falsely accused” him of sexually abusing D. (my emphasis)

9. In the written submissions of counsel for the father there is an apparent acceptance of the mother’s evidence that the child said “daddy did” at the start of the conversation said to have taken place on Tuesday evening 9 July 2013. Those written submissions then present that as an innocent and not unreasonable assertion by the child in response to the mother’s reminder that “no one else was allowed to look at, play with or touch [the children’s] private parts … unless it was a doctor and [the mother] was with them”. The written submissions then go on to suggest that the mother’s response to the child’s assertion that “daddy did” was “disproportionate” and that the mother became “so entrapped in her delusion or deliberately harmful behaviour, that she became unwilling to concede that there may have been an alternative or an innocent interpretation with respect to the comment”.   

10. There is though much more in the facts said by the mother to have been asserted by the child in that Tuesday, 9 July conversation than the simple assertion that “daddy” touched her private parts in some way that could otherwise be considered innocent, harmless and appropriate.

11. But just before I turn to those matters, I consider it important to observe here that the father was carefully asked questions by counsel for the ICL in his cross-examination about whether he could have accidentally touched D’s genitals during the drying/dressing process that night after the bath on Sunday, 7 July 2013. Accidental touching could well have provided a factual basis for the child’s statement that “daddy did” in the first part of the Tuesday conversation with her mother, or even for the assertions that her father “pinched” her “wizza” as the mother said D reported to her.  However, as the written submissions for the ICL correctly stressed, the father “categorically denied that he placed his fingers on, inside against or otherwise anywhere near D’s genitalia that night after she got out of the bath.”

12. As counsel for the ICL then submitted, it is as a consequence of that evidence, that the Court cannot conclude that there was any accidental touching that the child might actually have been reporting when she later clearly told her mother, the doctor and the police that her father had touched her genitals. Indeed, the father actually agreed with counsel for the ICL that if there was “skin to skin contact” with the child’s genitals on that Sunday night that there was no reason or excuse for it and that it would constitute criminal conduct on his part. Having said that, he was adamant any such “skin to skin” contact had not happened.

13. Accordingly, on the father’s own case, as counsel for the ICL pointed out, a finding of probable innocent touching leading to the making by the child of the statements she made is not reasonably open to the Court. See and compare R v Baden-Clay [2016] HCA 35; (2016) ALJR 1013 at [54] – [55].

14. In any event, the mother did not simply assert that D said “daddy did”. She went on to say that D told her that the father had touched and put his finger in her “wizza” (being her vagina and genital region) whilst she was only wearing her pyjama top just after she got out of the bath. She said the child had also said her father had “pinched” her genitals and that she (the child) had been “very brave” so her father did not hurt her “more”. If I accept the child said these things to the mother on Tuesday, 9 July 2013, as the mother asserts, then it makes the alternative proposition seemingly made on behalf of the father that the mother could be acting in good faith but as a result of a “misperception of information about the child” rather than simply falsely and maliciously, very difficult, if not impossible to accept, in my judgment.

15. As I have already observed, I am comfortably satisfied that the child actually said the things to her mother in that Tuesday, 9 July conversation that the mother said she did. The mother’s evidence of what the child said to her gains support elsewhere. Dr H said the child told her on 17 July 2013, in her practice rooms, that her father had “pinched her wizza” and put his fingers “in there” and that it “hurt”. I accept the child said those things to the Doctor as the Doctor told the Court. I have little doubt that the child knew that she was going to see the doctor about the matter of her father touching her genitals, and it is a fact that she told the doctor these things in the presence of her mother, but that does not mean that the mother told her what to say to the doctor.

16. That the child might have experienced some pain with any digital penetration of her vagina is entirely consistent with the expert opinion of the specialist who wrote the report of the examination conducted at J Hospital.

17. The interview the police conducted with the child that same day, 17 July 2013, in the middle of the day, was heavily criticised by the father in his evidence and in questions asked and submissions made by counsel for the father. In fairness, some of the criticism was justified. Some of the questions were clumsily asked. Some, particularly, assumed facts apparently based on information the mother had already given to the interviewing police officers that were contrary to or at least inconsistent with answers already given by the child to earlier questions.

18. In my judgment though, that the interview might have been conducted more appropriately than it was does not necessarily mean that little weight can be attributed to the reliability of the statements the child makes during it. Whilst, as I observed early in these reasons, I am satisfied the mother had a telephone conversation with her own mother when driving D between the doctor’s rooms and the police station in which the subject matter was discussed between the mother and her mother, I do note that the interview did not go like many I have seen where young children blurt out allegations of abuse in a manner that is so non-responsive and out of context that they clearly reflect coaching, preparation and rehearsal.

19. In my judgment, this interview evolved in a way such that much greater weight can be given to the actual reliability of the statements of fact asserted by the child than would be in other such interviews. Quite some time into the interview, in answer to a question about why she went to see the doctor earlier that day, the child tells the police that it was because her father had “pinched” her “wizza”. She then went on to tell the police, in answer to a question as to what her “daddy” did when he “pinched” her “wizza” that “he poked his finger in the hole where my wee comes out”. No witness had heard the child say that before. She went on to answer a question as to whether it hurt in the affirmative, saying “yeah”. She told police she did not cry because she was “so brave”. She answered when police asked her if her father said anything when he “pinched your wizza” in a particularly telling way, in my judgment. She said “he just said (and then held her finger up to her mouth as in a “shooshing” gesture) and didn’t let me, and he keeped on hurting into me and didn’t let me tell mum”. She even demonstrated on a doll how she said her father had touched her, just as she had done physically with her mother days before.

20. As counsel for the ICL pointed out in his written submissions, even the father conceded in cross-examination that much of what the child said in the interview about peripheral and less critical surrounding facts was reasonably accurate and reliable. There were many such facts the child recounted in that interview about which I am completely satisfied of her reliability. In my view, that reasonably adds weight to the reliability of the other assertions she made about what her father did to her.

21. I am satisfied that D told her 10 year old female cousin that same night, after having been to the hospital and examined, that her father had hurt her “wizza”. I am also satisfied that D told Ms O later in 2013 that her father had hurt her “wizza” when she was drying herself after she had a bath. As counsel for the ICL submitted, there was consistency in the statements of asserted fact made by the child to different people over time.

22. Not only am I satisfied, as I have already said, that the mother did not maliciously coach D to make knowingly false statements, but I am also satisfied that D did not just adopt and maintain false propositions put to her by her mother in some “disproportionate” and misguided, though non-malicious response to an otherwise innocent outburst by the child.

23. D was just a few weeks from her fourth birthday when the events she described happened and her language was apparently reasonably well developed for her age. There is evidence of her saying some things consistent with her having a healthy imagination for a four year old child but there is little about the things she said about her father touching her that supports a finding that it was imagined by her or that it was simply adopted by her as true when she knew it not to be true. Of course, it is clearly not impossible for a four year old child, principally aligned with her primary care providing parent, to go along with and adopt untrue suggestions made to her by that parent, but that is not what I consider happened in this case.

24. Of course, there are a number of other matters to be considered and weighed in this fact finding exercise. They include the evidence that there was no physical sign of injury to the child’s genitals, particularly her hymen, though I quickly acknowledge the specialist’s observation that this does not mean the Court can safely rule out sexual abuse. They include the absence of observed sexualised behaviour in the child subsequent to the alleged event, either at school or in her home. They also include the post-event history of bad dreams experienced by the child, reported by the mother and confirmed by both children, though again I quickly acknowledge that I am not in a position to be satisfied that they are necessarily the product of experienced sexual abuse by the child. They also include the father’s denial of any wrongdoing in the pretext phone call made by the mother from the police station and, of course, the determination with which the father has pursued his application in the Court and the apparent strength of his denials of wrongdoing in his evidence. I do not leave out the fact that although the father was charged with a criminal offence in connection with the events that took place on Sunday, 7 July 2013, the Queensland Director of Public Prosecutions elected not to proceed with the prosecution and the charge against the father was dropped.

25. After considering all of the evidence, counsel for the ICL made a concluding submission that “it is open in this case to make a positive finding that the Father sexually abused [D] or to find that there is an unacceptable risk that cannot be ameliorated”.  Unsurprisingly, counsel for the mother also submitted that “it is open on the evidence to make a positive finding that the father sexually abused [D] on 7 July 2013”.

26. I have given those submissions a lot of consideration over a long period of time. As I have said, I do consider the statements made by the child, as reported by her mother and others, and as I have seen for myself in the recorded police interview, to be reasonably reliable. Though it is always a very troublesome matter to contemplate the fact that a father who professes his love for his children and his steadfast innocence could actually have sexually abused his young child, the tragic reality is that it happens. In this case, I am inclined towards the view that it is more likely than not that D experienced some inappropriate genital touching, including vaginal penetration, by her father after her bath on Sunday, 7 July 2013. However, in the end, mindful of the words of the Judges of the High Court in M v M (supra) cited earlier in these reasons, I am not prepared to state that I am so satisfied to the requisite standard such that I could make a positive finding that sexual abuse of D actually occurred.

Against that position, what are the proper parenting orders to make?

1. I am quite satisfied that it is not in the best interests of E and D, in all the circumstances of this case, for their parents to have equal shared parental responsibility for them. Putting aside the question of whether the s 61DA(1) presumption does not apply in this case pursuant to the provisions of s 61DA(2) because of my satisfaction that it is more likely than not that the father did perpetrate abuse of D, all of the evidence of how each of the parents feels about the other parent and their complete absence of communication in the last four years immediately satisfies me that it would not be in the children’s best interests for their parents to equally share parental responsibility for these two children. Accordingly, pursuant to s 61DA(4), the presumption is rebutted. These parents could not and could not be expected to consult, make a genuine effort to come to joint decisions and actually make joint decisions about major long-term issues in relation to the children as s 65DAC of the Act mandates they must if an equal shared parental responsibility order was made.

2. As I have said, both children had apparently good relationships with their father prior to July 2013. In the ordinary course, it would be to each child’s benefit to have a meaningful relationship with both of their parents as they grow to adulthood, despite their parents no longer being married and living happily together.

3. However, s 60CC(2A) of the Act mandates the giving of greater weight to the second of the two “primary considerations” set out in s 60CC(1) when the Court is determining what is in a child’s best interests. That is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. The father asks for orders from the Court that the children live with him. It should now be clear from what I have already said in these reasons that I am satisfied that an order that D live with the father would expose her to an unacceptable risk of suffering sexual abuse and psychological harm. She has said her father sexually assaulted her and she believes he is not safe to be around. I have found, despite the father’s protestations of innocence, it is likely he did assault her as she says he did. In such circumstances, particularly considering his vehement denial that it happened, the risk of sexual assault occurring again if D was living with him, whether he is living with another partner (as he is) or not, is, in my judgment, unacceptable. Furthermore, it is not in E’s interests, nor would it be in D’s interests, in these circumstances, to separate E from his sister and have him live with his father without her.

1. Additionally, as I am satisfied that the mother did not either “unknowingly” or wilfully falsely accuse the father of sexually abusing D, the relationship that she has had with the two children all of their lives, but particularly over the last four years (during which they have not spent time with their father), means that anything other than a finding that it is in the best interests of the two children for them to continue living with their mother with her having sole parental responsibility for them would be impossible to maintain.

Should there be any order providing for the children to spend time with and/or communicate with the father?

1. As I am satisfied that the risk of D being sexually abused in her father’s unsupervised care is, sadly, an unacceptable one, I do not consider that making an order that provides for her to spend time in her father’s unsupervised care is in her best interests. Not only is the risk of sexual abuse an unacceptable one, but I am also satisfied, given that D believes her father sexually abused her and is a danger to be around, that she would suffer psychological harm if I made an order that she spend time in his unsupervised care. The thought of her spending time in her father’s unsupervised care is also something that the mother would struggle to emotionally cope with, such that her own capacities to provide appropriate ongoing day to day care for her children would be seriously compromised if such an order was put in place. Of that, I am quite satisfied.

2. The father told Mr B that it would be safe for E to begin spending time with the father. That was in the context of the report being prepared prior to an interim determination of parenting orders, but I have little doubt that the father would still advance that proposition. After all, no proposition has been advanced for the mother or the ICL that E is at an unacceptable risk of being sexually abused in his father’s care. Additionally, the evidence essentially demonstrated that E has not been exposed to the detail of D’s allegations against the father. That is to the mother’s credit, though the child clearly has been influenced in respect of his feelings about his father and the idea of spending time with him by his mother’s feelings and the feelings of the entire maternal extended family about the children’s father, if indeed he truly has no knowledge of the allegations.

3. Mr B expressed the opinion that a decision around this issue of whether E should spend time with his father by himself should not be made without considering the impact of the decision upon the family as a whole. At the same time, he posed numerous questions of the sort the Court would need to consider and answer in the process of determining the issue.

4. Counsel for the ICL submitted that although there is no “suggestion” that E would be at risk of any physical harm in the father’s care, that separation of the children and provision for E to spend unsupervised time in his father’s care would not be in the best interests of both the children. The submission centred on the risk of psychological or emotional harm that E would be exposed to in such circumstances, particularly having regard to the outcome of these proceedings and the likely response to the outcome of the father, his partner and other members of his extended family. 

5. I accept that the father’s partner and his extended family are likely to all be very distressed about the outcome of this case. The evidence plainly demonstrated that they are all committed to the belief that the father did not do what D said he did and that the mother is maliciously responsible for the allegations being made against the father. I acknowledge also that the outcome of this matter could very well have some impact on the father’s partner’s own family arrangements, as well as the children’s wider relationships with the members of their extended paternal family and that, no doubt, will add to their distress. My own knowledge of human experience tells me that the father is most unlikely to accept my determination and to concede to his partner and his wider family that my judgment is right, even if it is. On the other hand, I accept that if my judgment is wrong, his distress, and theirs, might be considered reasonable.  

6. I also accept the proposition that it is most improbable that the father, his partner, and his wider family would be able to shield E from their feelings about his mother and these proceedings and that he would, in all likelihood, be exposed to that ill feeling and drawn further into the conflict between his mother and father and their families. That would, in my judgment, expose him to an unacceptable risk of emotional harm that he should be protected from.

7. The questions that Mr B said arise, such as what impact there would be on D if her brother was to be spending unsupervised time with their father when she believes he assaulted her and is a danger to be around, and what impact there would be on the mother, also lead me to the determination that it is not in the interests of either child for E to spend unsupervised time with his father even though there may be no risk of him suffering sexual abuse in his father’s care. I do not consider that E or D, who, on the evidence, relate well and normally as siblings, should be exposed to the emotional stress of separate and distinct relationships with their father against the factual circumstances of this case, or the prospect of their mother’s parenting capacities being compromised by an inability to emotionally cope with E alone spending unsupervised time with the father. I consider that there are high prospects of such circumstances having a distinctly negative impact on D, E and the mother if I made orders that put them in place. Consequently, I do not consider it in the best interests of the children to do so.

8. Counsel for the ICL also submitted that if the Court accepted the reliability of D’s assertions of fact and that the mother did not coach her to make false allegations, then only supervision of the children’s time with the father at a children’s contact centre could ameliorate the unacceptability of the risk to D, but that such arrangements should only be put in place after D’s beliefs about the father have “been able to be addressed sufficiently so that she would not suffer any emotional harm in such circumstances.” That certainly was in accord with the opinion expressed by Mr B in his oral evidence.

9. I certainly agree that providing for the children to spend time with the father supervised by his current partner or some other member of his extended family will not satisfactorily ameliorate the unacceptable risks to their wellbeing that I am satisfied the children would face in their father’s unsupervised care.  I have already observed what the evidence revealed about the attitudes of those persons to the mother and the matters she has raised. I do not accept that any supervision they would provide would be appropriately protective of the children’s physical and emotional wellbeing. That is also in accord with the opinion expressed by Mr B in the oral evidence that he gave when he was recalled at the end of the trial.

10. D and E have not spent any time with or communicated with their father for around four years, consequent upon the interim orders that have been in place since soon after the proceedings were commenced in the Federal Circuit Court, in addition to the length of time it has taken to get the matter to trial, through trial, submissions finished and determined by me. Clearly, they do not currently have a meaningful relationship with their father at all. The words of the 2014 report of Mr B in which he describes his interviews with the children certainly confirm that was the case even when he saw them then, and that was almost three years ago.

11. Bearing in mind that s 60CC(1) and (2)(a) oblige me to consider the benefit to the children of each of them having a meaningful relationship with both parents, I consider that I am bound, within the constraints of all of my findings, to consider whether making parenting orders that provide for the children to begin spending some time with their father under professional supervision at a children’s contact centre could provide them with a meaningful relationship with their father. I am also bound, by s 60CC(1) and (3)(d), to consider the likely effect of any changes in the child’s circumstance, including the likely effect on the child of continued separation from the father, and, by s 60CC(1) and (3)(e), to consider the practical difficulty and expense of children spending time with a parent, and, by s 60CC(1) and (3)(l), to consider 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 or children.

12. Indefinite, long term supervision of a child’s time with a parent is neither ideal nor very conducive to the development of a relationship between that child and the parent that could be considered important, significant and valuable to the child, such that it might be regarded as a “meaningful relationship” as that term is used in the Act. However, as I have already indicated, I am satisfied that without independent supervision of their time with the father these children face a risk of harm that I consider is unacceptable.

13. In this case, there are some real difficulties standing in the way of finding that the provision of indefinite supervised time is nevertheless in the children’s best interests. There is the fact that the children have not seen the father nor communicated with him for four years. In addition, D believes he is not safe to be around and even E’s feelings about his father were not good ones when Mr B saw E nearly three years ago. I cannot ignore the effect on their emotional well-being that ordering supervised time with their father might now cause them, with that belief system, after all this time. Believing that her father touched her in an inappropriate sexual way and understanding that to be the reason why she does not see him anymore, ordering D to now start spending time with her father in an independently supervised setting after I have found that it is more likely than not that the father did do what the child said he did, would certainly not validate her feelings, in my judgment. I consider it likely to cause her real emotional distress, particularly in a context of similar distress most likely being experienced by the mother at the same time. That is probably the basis for the submission made for the ICL that the child would need some counselling first before supervised time, if it was ordered, could commence. I understood the evidence of Mr B to be that the mother would also need such counselling if the Court was to order that the children spend time with the father, even in a supervised setting.

14. Again, I am satisfied that establishment of a differential regime in respect of the two children is not in their interests, such that I would not consider it appropriate to order indefinite supervised time for E but not for D.

15. In any event, there was no evidence adduced by any party in respect of any options for independent supervision. The father did not tell the Court he would accept it or that he would take it up. He did not tell the Court that he could and would pay for it. No evidence was adduced about the various options in terms of community based, Government funded children’s contact centres or private, commercially operated services. Of course, I know something of these options through the many cases I have dealt with over the years as a barrister and a Judge of this Court. I am also conscious of the fact that community based Government funded children’s contact centres, which are the far cheaper option for families, have long waiting lists and enormous demand for their services and that they discourage long-term, indefinite supervision taking up places in their services. See reference to this issue by the Full Court in W and W (abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129 at [114].

16. Similarly, there was no evidence adduced by any party and no questions asked of Mr B, particularly, about the issue of whether a minimum amount of supervised time with the father (sometimes referred to as “recognition” contact) would be in the children’s interests in the event that the mother’s case was principally successful. Although it is something I have ordered in some parenting cases in the past having considered it to be in the best interests of the subject children in those cases, I consider that the children’s views of their father and the length of time that has expired since they spent time with him and communicated with him are certainly matters attracting significant weight in the delicate balancing exercise of determining whether indefinite supervised time of any form should be ordered. 

17. Although it is clearly obvious and trite, this type of parenting case is extremely difficult to decide. As I said at the commencement of these reasons, the responsibility of determining such cases weighs heavily on a Judge of this Court as the decisions, whichever way they go, are life-changing for all concerned, most particularly the children involved.

18. Ultimately, I am satisfied that the emotional distress that would be caused to the children if they were to start seeing their father on a supervised basis, even of limited frequency, is something that they should be protected from and that the need for that protection outweighs any benefit that might be forthcoming to them through such arrangements. I will not order any such time.

Should there be any communication at all between the father and the children?

1. Again, this question was not really dealt with at all during the trial, with no evidence being adduced or any questions asked about what communication, if any, should be provided for in the event that the orders did not provide for the children to spend any time with the father.

2. I am satisfied that it is not in the children’s interests to make orders that provide for communication between them and their father in circumstances where they will not be spending any time with him. That, too, I consider, would be far too distressing and emotionally difficult for them to cope with.

3. I will not make any orders for any other communication between the father and the children or between the father and the mother of any kind, save for any that is agreed to and facilitated by the mother at her initiation. 

4. It is also appropriate now to discharge the ICL.

5. Consequently, I make the parenting orders set out at the commencement of these written reasons, satisfied that they are proper and in the best interests of the two children.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 September 2017.

Associate:

Date:  12 September 2017