MICHAEL & MCDONALD

FAMILY COURT OF AUSTRALIA

MICHAEL & MCDONALD

[2011] FamCA 164

FAMILY LAW – CHILDREN – With whom a child lives – best interests of child – allegations of child sexual abuse – unacceptable risk – the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – presumption of equal shared parental responsibility – parental capacity -

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3)

B and B (1993) FLC 92-357
Chappell and Chappell [2008] Fam CAFC 143
Donaldson & Donaldson [2011] FamCA 13
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
M v M (1988) FLC 91-979
MRR v GR (2010) 42 Fam LR 531
Napier and Hepburn (2006) FLC 93-303

APPLICANT:

Ms Michael

RESPONDENT:

Mr McDonald

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11035

2008

DATE DELIVERED:

25 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Johnston J

HEARING DATE:

17, 18, 19, 20 & 21 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT:

TLG Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Carew

SOLICITOR FOR THE RESPONDENT:

Nita Stratton-Funk & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

That the following parenting orders are made in relation to the children B and C both born on … May 2003.
That these orders shall commence operation at the conclusion of school on 4 March 2011.
That all previous orders and undertakings are discharged.

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the children.

Live with

That during school term:
5.1.The children live in a week about arrangement with the mother and with the father with changeover to occur at school each Friday at the conclusion of school. This arrangement is to commence with the children living with the parent with whom they would have been living at the conclusion of school on 4 March 2011 pursuant to the previous orders.

School Holidays

That the father and the mother share equally all school holidays with the father to have the first half in even numbered years and the second half in odd numbered years, the holidays to be calculated as commencing at 9:00 am on the first day after school concludes and concluding at 5:15 pm on the last day prior to the commencement of the new school term, changeovers to take place at the home of the parent who does not have the children.
That when spending holiday time and long weekends with the children away from Brisbane the parties provide each other with contact details for the children whilst they are away as soon as practicable but not less than 48 hours prior to the trip.

Special days

That should Mother's Day fall on a weekend when the father would ordinarily have the care of the children, then the father shall make the children available to the Mother from 5:00 pm Saturday before Mother's Day to 9:00 am Monday.
That should Father's Day fall on a weekend when the mother would ordinarily have the care of the children, then the mother shall make the children available to the Father from 5:00 pm Saturday before Father's Day to 9:00 am Monday.
That the parent who has the care of the children on the children's birthday shall make them available to the other parent to spend time with them from 3:00 pm to 8:00 pm if the birthday falls on a week day and from 2:00 pm to 7:30 pm if the birthday falls on a weekend.
That the parent who has the care of the children on the birthday of the other parent, shall make the children available to spend the day with that other parent.
That the Australia Day Public holiday be shared by the parties as follows:
12.1.in 2011 and in each alternate year thereafter with the Mother from 9:00 am to 8:30 am the next morning;
12.2.in 2012 and in each alternate year thereafter with the Father from 9.00 a.m. to 8.30 a.m. the next morning.
That in the event that Easter does not fall within the school holidays the children are to spend Easter with the father in even numbered years and with the mother in odd numbered years.
That upon each party giving 7 days notice to the other of any special occasion days / nights such as special religious days or weddings that fall on days when the requesting parent would not ordinarily have the care of the children, then the parent who has the care of the children will not unreasonably withhold their consent for the children to attend such special occasion.

Communications by Telephone / Internet

That the non-resident parent shall be at liberty to telephone the children between 7:30 pm and 8:00 pm on Sundays and Thursdays or such other times as the parties agree in writing.
That the children shall be at liberty to telephone, or have internet communication with the non-resident parent on not more than one occasion each day when the children are in the care of the resident parent and the latter shall facilitate such phone calls and internet access when requested by the children.

Medical

That the mother and father each keep the other informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and this order is authority for those practitioners to provide the other party with information which they are lawfully able to provide about the children.
That the mother and father immediately notify the other of any serious illness of the children or hospitalisation of the children as soon as practicable.
That the mother and the father notify each other of all specialist appointments and medical procedures in relation to the children at least 7 days prior to the appointment or procedure.

School

That the children shall attend D School unless otherwise agreed between the parties in writing to change the children's school/s.
That this order represents an authority by both the mother and the father to the children's school and after school care to provide to the other parent any and all information relating to the children which may be requested by either parent from time to time.
That neither parent enrol the children at any day care/preparatory school/before and after school care/school without the written consent of the other parent.
That both parents be at liberty to attend functions of the children such as the children's first day at school, school sports days, concerts, parent/teacher interviews, award ceremonies and all other functions that parents ordinarily attend.

Injunctions

That the mother and the father not denigrate or criticise the other in the presence of the children or in the hearing of the children.
That each party is restrained from removing the children from the Commonwealth of Australia unless such travel is agreed by the parties in writing or is an order of the Court.
That the mother is restrained from taking or causing or requesting any other person to take the children to any medical practitioner or to the Department of Child Safety or to the Police in relation to any allegation against the father without first obtaining the leave of this Court.
That the father shall not bath nor shower with the children.

Other

That the children shall only be enrolled to attend sporting and extracurricular activities agreed to by the parties in writing and that the parent who has the care of the children be responsible for the drop off and collection in relation to the children's attendance at these activities and that each parent keep the other informed of the children's scheduled events.
That the mother and father ensure that when the children are in their respective care that she / he is the primary carer.
That each parent advise the other of any change in their address including details at least 7 days prior to moving and advise the other immediately of any changes to their telephone number.
That in the event that the mother or father alter their work timetables, they shall, seven days prior to such alteration occurring, communicate with each other and plan any necessary changes that may need to occur to child care arrangements, including after school care arrangements for the children with the aim of minimising the amount of time to be spent by the children in an after day care or school care facility.
That the mother and father inform the other of any changes to the living arrangements for the children including any significant changes to the children's routines, partners of either party staying in the household with the children from time to time, including the names and ages of any children of such partners and the sleeping arrangements.
That the mother attend upon a psychiatrist or psychologist nominated by the independent children's lawyer for such time as may be recommended by the treating psychiatrist/psychologist for the purpose of assisting her to come to terms with these orders and notations, in relation to her interactions with the father and parenting matters generally, and that such person be provided with a copy of these orders and Reasons for Judgment.
That the father continue to attend on Dr E in relation to his interactions with the mother and parenting matters generally and Dr E be provided with a copy of these orders and Reasons for Judgment.
That the father have leave to provide a copy of these orders and Reasons for Judgment to the Department of Communities (Child Safety) and the Queensland Police Service.
That a copy of these orders and Reasons for Judgment be provided to the Acting Director Child Dispute Services.

Notations

That this Court has determined that the father does not pose an unacceptable risk of harm to the children B and C both born on … May 2003 as alleged against him.
That this Court, having considered the evidence upon which the Department of Communities (Child Safety) has relied to substantiate the findings of sexual abuse of the children by their father, including hearing oral evidence from Detective Senior Constable F and Detective Senior Constable G and having viewed the taped interviews of the children on 1 November 2008, 17 December 2008 and 17 October 2009, has determined that such evidence is seriously flawed and unreliable.
That this Court has also had the opportunity to hear extensive oral evidence from the mother, the father and other witnesses.
That this Court respectfully requests that the Department of Communities (Child Safety) and the Queensland Police Service amend their records to indicate that such allegations against the father be recorded as unsubstantiated.
That this Court respectfully requests that the Queensland Police Service note that the practice of conducting interviews or discussions with children in child protection matters, other than recorded on tape and / or video camera can lead to disastrous consequences for the subject children as has occurred in this case. This Court respectfully requests that the practice of unrecorded interviews of children in such matters cease immediately.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11035 of 2008

Ms Michael

Applicant

And

Mr McDonald

Respondent

REASONS FOR JUDGMENT

Introduction and Overview

B and C (both born in May 2003) are delightful, well-behaved twins, now 7 years of age. I say this because I have had the unusual opportunity of seeing something of their personalities and their behaviour on numerous visual / audio recordings. These recordings were made by officers of the Queensland Police Service (“the Police”) and of the Department of Communities (Child Safety) (“the Department”).
The children’s parents are Ms Michael and Mr McDonald. For convenience I shall refer to them as “the mother” and “the father”.
After the parents separated in January 2005, to their credit, they put in place an agreed parenting arrangement. Under this arrangement the children lived primarily with their mother and spent considerable regular time with their father. After a time, this arrangement became a shared care arrangement in which the children spent significant time with each parent.
These parenting arrangements served the children well and despite difficulties in the parents’ relationship, by and large, they were able to manage the arrangements, including making decisions, in the best interests of the children.
That is, until 1 November 2008. On that day B said something to her mother which caused the children’s lives to be changed dramatically. The mother suspected that the children might have been sexually abused by their father. She took the children to their local police station.
The children were each interviewed by police officers and the initial interview was recorded. But after the recorded interview concluded, the junior police officer, who was inexperienced and poorly trained, re-interviewed B “off tape” without any other police officer being present. Through a process involving leading questions, the police officer elicited some statements from B which the police officer interpreted as being indicative of some sexual behaviour between B and her father. The police officer has no relevant training or experience to qualify her to form any opinion about such complex matters. Yet her impressions became recorded in the police information system and were transmitted to the Child Safety authorities at the Department.
Unfortunately for the children the Department acted on this seriously flawed information and recorded in its system that the children were at “substantiated” risk of harm from their father based on the Department’s view that their father had sexually abused them.
There have now been visited upon the children a very considerable number of interviews by officials, police and professionals including a six session course of counselling administered to the children by a child sexual assault counsellor during the course of which many times the children were told that their Daddy had done bad things to them and that he was naughty. The children were each subjected to medical examination including in the case of B a full genital examination with her genitals displayed on an electronic screen. This was clearly distressing for the child.
This whole process has been very disruptive for the children, particularly in terms of their living arrangements, confusing and at times quite distressing. In an endeavour, obviously to elicit information from the children, the children have been subjected to questions in a variety of locations, including at police stations and at their school. I would expect that many of the interview sessions have well exceeded a period of time which such young children could reasonably be expected to concentrate for.
Following the Department’s initial assessment that the children were at risk the Department acted under the child protection laws of Queensland and took the children into their care for a period.
Fortunately for the children, they have paternal grandparents, Ms H McDonald and Mr I McDonald who love them dearly. These grandparents left their home at Canberra and took up residence with the children’s father in Brisbane. They have lived with him and the children now for a couple of years and are responsible for supervising the father’s care of the children. This was a requirement initially by the Department and subsequently by court orders in order for the children to be able to continue the shared parenting arrangement with their father. This situation continues to the present time.
I have had the opportunity of reading all the relevant evidence, of viewing and listening to the recorded interviews of the children and of listening to and observing each of the witnesses in the proceedings including some of the officials involved. There has also been involvement by numerous qualified behavioural scientists in the case. The view that I have formed is that it is highly unlikely that there has been any sexual conduct by the father towards the children. In my view, the whole sorry history of this matter since the first statement by B on 1 November 2008 almost certainly has been a mistake. Unfortunately, in my view, most of the subsequent unfolding official activity has been the antithesis of serving the best interests of these children.

Applications

The proceedings concern the making of final parenting orders which would serve the best interests of the children.
At the outset of the hearing the mother sought orders to the following effect:
·That pursuant to s 69ZK of the Family Law Act 1975 (“the Act”) at all such times as there is no child protection order in place the following orders are to apply:
(a)the mother have sole parental responsibility for the children;
(b)the children live with her;
(c)the children spend supervised time with their father from 9:00 am to 1:00 pm each alternate Saturday and Sunday of the same weekend at the L Town Contact Centre; and
(d)certain other orders.
On the other hand, at the outset of the hearing the father sought orders to the following effect:
·That the parents have equal shared parental responsibility for the children;
·That during school term the children live in a week about arrangement with the parents with changeover to occur at school each Friday after school;
·Detailed orders in relation to school holiday arrangements, the effect of which is that the holidays would be shared equally between the parties subject to some particular orders sought in relation to Christmas each year;
·Detailed special days, some general arrangements and telephone / internet communications.
During the course of the hearing, and after the parties had had an opportunity to cross-examine one another and police witnesses, and after submissions about the weight which I should afford the evidence concerning allegations of sexual abuse, I informed the parties that the evidence would not support the Court in being able to find that there would be any unacceptable risk if the children were to be in the care of their father unsupervised. To the mother’s credit she then changed her case by not pressing for the living arrangements by the father for the children to be supervised.
The final positions of the parties are as follows.
The mother seeks orders to the following effect:
·That she have sole parental responsibility for the children;
·That they live with her;
·That they spend time with their father as agreed or in the absence of agreement as follows:
(a)from after school Friday until before school Monday each alternate week;
(b)from after school Wednesday to before school Thursday in the intervening week;
(c)half school holidays, the first half in even numbered years and the second half in odd numbered years;
·Various detailed orders for special occasions, communication, and exchange of information;
·An injunction to restrain the father from bathing or showering with the children and
·Orders for each of the parties to attend upon therapists respectively.
The father’s application has not changed in respect of the fundamental matters. But in addition to the above orders sought by him, he sought a number of injunctions and notations. It is unnecessary to set out the details here and I shall refer again to these below.

Background

The father was born in 1966 and the mother was born in 1967. Accordingly, they are aged 44 years and 43 years respectively.
They married in 2002. They separated on 24 January 2005 and were divorced on 27 May 2006. The mother has been twice previously married. She has a daughter from her first marriage to Mr J, Ms K who is now approximately 21 years of age. The father has not been previously married.

The parties both work with the Australian Taxation Office. They met at work in approximately May 2000 and commenced a relationship shortly thereafter.
A few weeks after they separated the parties attended mediation. They were able to reach agreement about the arrangements for the children. These were that they would spend time with their father from Friday afternoon until Sunday afternoon for two out of each three weekends and Friday overnight in the third week. They would also spend an hour prior to day care each Wednesday, Thursday and Friday morning with their father.
In June 2006 the mother commenced a relationship with Mr M. Mr M has five children. The two eldest live with their mother. N who is approximately 15 years lives with Mr M. O who is approximately 12 years and P who is approximately 9 years live with their parents in a week about arrangement. Mr M works in the building trade. The mother and children usually spend their weekends at Mr M’ home at Q Town.
In late 2006 the father filed an application seeking orders to vary the above arrangements.
On 27 March 2007 the Federal Magistrates Court made orders by consent to the following effect:
That the Mother and the Father have equal shared parental responsibility for the children.
That the children live with each of their parents in what amounted to a shared care arrangement. This involved the following in effect:
·Until January 2008 in a three week cycle the children live for what amounted to 9 out of the 21 nights with their father and 12 nights with their mother;
·That until January 2011 in a 2 week cycle the children live for what amounted to 6 out of 14 nights with the father and 8 nights with their mother;
·Then from January 2011 in a week about arrangement with changeovers after school on Fridays with each parent having 4 hours after school with the children on the intervening Tuesday;
·School holidays and special days were to be shared;
·There were also orders for telephone communication and medical and school information orders.
As I said, this was in effect a shared care arrangement. These arrangements continued until November 2008.
In early 2008 the children commenced school in the Prep Year at D School.
The mother said that on 1 November 2008 B said to her words to the effect that she and C shower with their father at his home. The mother said that shortly afterwards the child said “Daddy lets us touch his private parts”. I shall refer in more detail to this matter below. The mother said that these statements by B came as a complete shock to her. The mother took the children to their local police station at T Town that day. The children were subsequently interviewed by police officers. The first part of each of the interviews was recorded. Each interview of each of the children was then followed by an unrecorded session. During the course of the unrecorded session by Detective Senior Constable F, B said certain things in response to leading questions which gave Senior Constable F the impression that the child had been engaged in sexual acts with her father. Senior Constable F later committed to writing her impressions of what the child had said and these were transmitted to the Department.
The Department made an assessment of “substantiated emotional harm caused by sexual abuse” in relation to B and “substantiated risk of emotional harm caused by sexual abuse” in relation to C, with the father recorded as the person being responsible for such.
On 12 November 2008 the children attended the Child Safety Advocacy Clinic at the Royal Children’s Hospital.
The Department also conducted interviews of the mother and the father. There was a medical examination of both children including in the case of B examination of her genitals at the Children’s Hospital.
On 20 November 2008 officers of the Department conducted an interview with both B and C at their school in the presence of the Deputy Principal of the school. Amongst many other things C informed the officers that at bedtime his father sings songs such as “Baa Baa Black Sheep” and that “he does more than that but (he) did not want to say”.
On 15 December 2008 the Department applied for a child protection order in the Brisbane Children’s Court. Such an order was made, the effect being that the children were then formally under the care of the Chief Executive Officer of the Department. The Department then arranged for the children to be living with their mother.
At approximately this time the father’s parents moved from their home in Canberra to live with the father in Brisbane to assist him by being available to supervise time spent between him and the children.
On 17 December 2008 there was a further interview of the children by the police, this time in the presence of Child Safety Officer Ms R. As was the case with the earlier police interview, there were leading questions including in relation to shower behaviour. I shall refer to this again below.
In late December 2008 the Department agreed to the making of a temporary order by the Brisbane Children’s Court for contact between the children and their father for three hours, twice per week as well as limited contact over Christmas, all such contact to be supervised by the father’s parents.
On 20 January 2009 the father attended an interview at the Department accompanied by his solicitor and his parents. The Department recommended that he attend upon a psychologist for an assessment of his cognitive ability and a risk assessment of his likelihood to harm children in the future. The children were also referred by the Department to undertake counselling from a social worker Ms S. This counselling with the children commenced in late January 2009 and involved six sessions concluding in early March 2009.
From early February 2009 the Department agreed to a variation of the Court orders to enable the children and their father to have contact three afternoons per week supervised by the father’s parents for four hours on condition that the children not be bathed at the father’s home because the Department had the view that this could place the children at risk of being re-traumatised.
On 13 February 2009 the mother commenced these proceedings by an application in the Federal Magistrates Court.
On 17 February 2009 Dr E, forensic and clinical psychologist commenced conducting interviews and psychological testing of the father in accordance with the recommendation of the Department referred to above.
Also on 17 February 2009 Ms S recommended further counselling for the children and that visits between the children and their father remain supervised.
On 24 February 2009 the Federal Magistrates Court ordered on an interim basis that the time between the children and their father be supervised at all times by the father’s parents.
The following day the Department withdrew their proceedings in the Brisbane Children’s Court, the Department being satisfied that appropriate orders were in place securing the children’s safety under the orders of the Federal Magistrates Court.
The effect of these orders was that the children returned to living with their father in an approximately equal time shared care arrangement including overnights supervised at all times by the father’s parents. The father had given an undertaking that he would not bath the children nor dress them. The proceedings were listed as a reserve hearing in August 2009 and as a fixture in February 2010.
On the first night that the children were to stay at their father’s residence in accordance with the new orders the father was concerned that they might wet their beds. He put “pull ups” on the children watched by his father. C subsequently informed his mother about this and the mother raised her concern through her solicitors with the father’s solicitors. The mother regarded this as a dressing or changing of the children in breach of the father’s undertaking.
Dr E had recommended that the father undertake some therapy with her. This was because Dr E regarded the father to have an unusual interpersonal style and marked discomfort with issues of sexuality that she considered would hinder the healthy management of sexuality issues with the children. Dr E also wanted to ensure that the father expressed his sexuality in appropriate ways.
The father undertook therapy sessions with Dr E during May and June 2009. In her report dated 29 June 2009 Dr E described the father as having made an excellent effort in therapy despite his initial reluctance. Dr E expressed confidence that the father had begun a process of change to minimise any sexual risk to the children. He had developed a protection plan to ensure that the children were not exposed to any suggestions of inappropriate sexual behaviours by him. Dr E assessed the level of risk posed by the father to his children as being “extremely low” and considered his time with the children could revert to being unsupervised.
On 9 July 2009 the parties had the then current interim orders of the Federal Magistrates Court made as final orders. The mother said that she accepted Dr E’ assessment and report.
On 16 October 2009 the mother alleges that during a conversation with the children about games they might play at a birthday party they were to attend the following day, B said “Daddy lets us pull down his pants and we play pull down pants games”. The mother said that she asked the children whether their father pulls their underpants down too and that both children said “yes”. The children had been living with their father that morning. The mother then said that she asked the children whether they had played the game that morning and that C said “yes” and laughed. The mother asked her neighbours to care for the children and then she rang the T Town Police Station.
On 17 October 2009 the mother and children attended the U Town Police Station. The children were interviewed separately by Detective Senior Constable G. During their respective recorded interviews the children did not say anything supportive of the alleged pulling down pants game nor anything which might suggest any improper behaviour by their father towards them. However, Detective Senior Constable G conducted a further unrecorded interview of B. Detective Senior Constable G in a supplementary occurrence report stated that no disclosures were made by the children on video but that B later made disclosures of a sexual nature relating to herself and C. Detective Senior Constable G also wrote in the report that police questioned C in relation to this and that he said that his sister was a liar.
Detective Senior Constable G then spoke to an officer from Crisis Care that same day informing the officer that in her view there had been a “disclosure” of sexual abuse by B.
The children and their parents were each subsequently interviewed by Departmental officers.
The mother said that on 18 October 2009 B told her she does not like it when her father lifts up her shirt and touches her tummy.
The mother said that on 19 October 2009 C placed a piece of material between his legs and moved it backwards and forwards. The mother said that C said that this is what Daddy does and that he did not like it. The mother said that B said that her father did it to her too and she did not like it.
On 21 October 2009 the father gave the Department a written undertaking not to have contact with the children until 5 November 2009.
On 22 October 2009 the mother filed an Initiating Application in the Federal Magistrates Court seeking variation of the orders and that the father spend time with the children supervised at the L Town Contact Centre.
At approximately this time the Department’s officers informed the father that while they were investigating the new allegations of sexual abuse, they required his time with the children to be supervised. The father arranged for his parents to come to Brisbane from Canberra and stay with him during times that he had the children.
The mother said that on 23 October 2009 C was naked in front of the television and she asked him to put some pants on. The mother said that she then asked C if he ran around naked at his father’s house and that he said that he did. The mother said that she then asked if his father told him to put any pants on and that C said he did not. The mother said that she asked if his father sent him to his room and he said no. The mother said that she then asked what his father did do and C said “he just watches us”.
The mother said that on 24 October 2009 she reminded the father that he was not to change the children’s clothes for swimming that day. The mother said that the father informed her that his father was there to supervise him. The mother said that C said “Daddy always dresses us”.
On 15 December 2009 the Federal Magistrates Court made orders by consent to the effect that the father’s mother (or the father’s father upon him being assessed by the Department as an appropriate supervisor) supervise the father’s time with the children under the current orders. The Federal Magistrates Court also ordered that the proceedings be transferred to this Court.
On 7 January 2010 this Court (then Registrar Turner) requested the Department to intervene in the proceedings and adjourned the proceedings for directions in the Magellan list of cases. The Court also made orders for the children to be represented by an Independent Children's Lawyer, for preparation of a Family Report and for the mother to file and serve a Notice of Child Abuse.
On 1 April 2010 the mother filed a Notice of Child Abuse.
On 22 April 2010 this Court (Registrar Kane) released the Family Report dated 20 April 2010 prepared by the Family Court Consultant. I shall refer to this again below.
On 7 July 2010 this Court (O’Reilly J) made orders dismissing an Amended Application in a Case which the mother had filed seeking substantial changes to the current orders, and appointing both the father’s mother and his father as supervisor respectively of the children’s time with their father. The orders also restrained the mother from taking the children to any counsellor at V Counselling or any other counselling organisation without approval of the Independent Children's Lawyer or order of the Court.
On 30 July 2010 this Court ordered that the father and the mother both attend consultations with Psychologist Mr W as single expert for psychological assessment including a sexual risk assessment of the father. Orders were also made for filing of affidavits and preparation of the proceedings for trial.

The applicable law in parenting proceedings involving allegations of child sexual abuse

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… 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.
The High Court went on to say at page 77,081 as follows:-
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.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrives at the relevant test saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “"achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

Credit

Mother

The mother gave her answers to questions during cross-examination in a responsive, forthright manner. She holds a very strong belief that the father has sexually abused the children. She was unable to make any concessions in relation to this. She did, however, make other concessions. For example the mother readily conceded that both children love their Dad. And the mother conceded that both children looked uncomfortable when they were undergoing medical examination.

The mother said that she was sexually abused by a family member or person close to her family when she was in primary school and later when she was at high school. She also said that her elder daughter Ms K was also sexually abused when the child was approximately 4 years of age. The mother was asked whether she thought that these very personal experiences might make her more prone to accepting allegations that the children had been abused than in the event that she had not suffered these personal experiences. She did not agree that this would be the case.
I must say I have a different view about this matter and regard these matters together with the poor state of the relationship between the mother and the father to be important elements in the strength with which the mother holds her belief that the children have been sexually abused by their father. It is a tragedy for the children that the mother hates their father and conceded that she loathes the sound of his voice.
Having said this, I regard the children’s mother generally as being a witness of the truth.

Father

The father has a somewhat unusual style in his interpersonal communication. This was commented on by Departmental officers, by Dr E and by the Court Consultant. Initially it appeared to me that the father’s responses indicated that he was having difficulty answering in a responsive manner. He had a tendency to say things which appeared to be unrelated to the question but I found that he would then come to deliver a relevant response. In response to questions he seemed to use words which were not directly relevant to the question, which I thought were linking words. It seemed to me that where other people, after being asked a question, might simply pause and remain silent or say “umm”, the father would say something which would give him time for his mind then to be able to respond with relevant material to the question.
This was somewhat of a problem because on a number of instances learned counsel for the mother tended to cut him off and not permit time for this process to produce the relevant response. At one point I found myself stopping counsel and endeavouring to alert him to the need to provide more time for the father to give his response. So I did not find the father unresponsive to the questions in cross-examination. I would describe it as being a slow or delayed responsiveness.
The father did not allege that the mother had made up her allegations about what B had said to her. He did say that he thought the mother had coached the children to say the things that she alleged they had said to her. But I did not understand him to mean “coached” literally. What he said he meant by this term was that it was not a matter of the mother sitting the children down and telling them to say certain things. Rather, they were “coached” in the sense that by her words and actions she had given the impression that she had a very poor view of the children’s father and that this would leave it open for the children to say the things which they thought would be favourably received by her about him.
On most occasions I had the sense that the father was accurate in reporting matters and that he was telling the truth. But there are two areas which cause me concern. The first is that he said that at no time in the children’s lives has he ever showered with them apart from at a beach with board shorts on to wash salt off or with board shorts on to wash chlorine off after a swim in a pool. This was at odds with the children’s answers to questions during their interviews with the Police and the Departmental officers.
I had the benefit of viewing and listening to the relevant DVD recordings of the interviews. I saw these first in the courtroom and more recently in the quiet of my chambers. The children were quite clear in answering questions about whether they showered with their father without clothes on and each of them said that they did so in what I regarded as a responsive manner. I also had the clear impression that they understood the difference between the shower and the bath. I thought initially that a possible explanation for the inconsistency between what they appeared to be saying about the shower and their father’s denials that he had showered with them at home might be in the children talking about the shower in the sense of bathroom rather than in the sense of the shower recess. But I have listened carefully again to all the recordings and I am satisfied that they have said that they have been naked in what I understand to be the shower recess with their father and that they have washed their father’s private parts and vice versa. C was asked during his interview on 1 November 2008 what games were played in the shower. He said they played “Tiggy” in the shower. They just walk around and pretend “He’s a statue”. C was asked “Who’s a statue?” and he replied “My Dad.”
Perhaps the explanation for the inconsistency is that this happened a long time ago.
I was surprised that the father did not make some concession about this matter and that he was so steadfast in his denial. It just seems to be at odds with what I expect would be accepted practice in much of the community at least when children are very young and at least on a small number of occasions. So I think it more probable than not that what the children appear to be saying about having been in the shower and bath with their father and all washing one another is true at least at some point prior to 1 November 2008.
The other matter of concern is that it is clear that just prior to the time of the parties’ marriage they had a conversation about sexual abuse. The mother informed the father that she had been the victim of sexual abuse on the occasions referred to above as had her daughter Ms K. The mother says that during the conversation the father had informed her that years ago he had kissed his then 12 year old cousin on the crotch through her underpants. The mother said that she was very shocked and disappointed at hearing this and could not bring herself to even speak with the father for a period of two weeks.
The father denied that he had said this. He said that it was true that he and the mother were having a conversation about sexual abuse. He said that he informed the mother that when he was 14 years of age his 12 year old cousin was chasing him and caught him and kissed him. He denied that there was any sexual behaviour. As the father was giving his evidence about this matter I had a sense that he was being untruthful. In any event his explanation did not appear to rest easily with the serious matters that the parties were discussing at the time. I prefer the mother’s account about this matter to that of the father.
This leaves me in the position where in respect of most matters I believe the father and regard him as being truthful. However in respect of some matters, these being two of them, in my view, the father is unable to make concessions where he perceives such would be unfavourable to his case.

Ms H McDonald (the paternal grandmother)

Ms H McDonald is a loving grandmother who is delighted by these two of her grandchildren. As indicated above, she has devoted the major part of her life in recent times to the welfare of the children. She was very careful to be accurate in her answers. She struck me as a very sensible person who is only too conscious of the important position of responsibility which she has in relation to the children.
Against a background of all the difficulties between the children’s parents and the practical consequences of those difficulties for her and her husband, the paternal grandmother had no difficulty in readily conceding that the children love their mother.
Ms H McDonald is a retired school teacher and spent many years in the education of children and some years in adult education. She indicated that during her professional career she had not had any experience of involvement in the investigation of allegations of child sexual abuse. She also indicated that when she heard of the first allegations she had no belief that they were true. She said that she had just been visiting the children shortly before that time and that the children had not said anything to her. She said there was nothing different about their behaviour. She said the children tell her lots of things and that she thought that something would have been said somewhere along the way if there had been some substance to the allegations.
Ms H McDonald also did not believe that the mother had made up the things which she said the children had said to her. For example the paternal grandmother said that when the third set of allegations were made it was alleged that the children sleep in their father’s bed. She said that she was able to tell the Departmental officers that the children never sleep in the father’s bed but sometimes they might fall asleep in the father’s bed but they would be lifted onto their own bed. Ms H McDonald thinks the allegations of sexual abuse have been a terrible mistake.
Ms H McDonald indicated that she and the children’s paternal grandfather had discussed their availability into the future to continue to supervise. She said they would be available at least until such time as these proceedings were completed.
I regard the paternal grandmother as a witness of truth. I also regard her and the paternal grandfather as appropriate supervisors for these children.

The Family Consultant

Unfortunately the Family Consultant’s Report proceeds on the basis of her conclusion that the father poses an unacceptable risk to the children “both sexually and/or as a result of his behavioural and personality nuances.”
Because in my view, the evidence does not support a conclusion that the father has acted in a sexual way towards the children, I find myself having to disregard much of what is contained in the Report.
The Family Consultant gave oral evidence after I had indicated that I would not be making a finding that the father poses an unacceptable risk of harm to the children. Her recommendation is that the children live with their mother and spend unsupervised time with their father each alternate weekend from after school Friday to before school the following Monday as well as one overnight stay with the father during the intervening week.
I shall refer to the Family Consultant’s evidence again below.

Mr W (Psychologist)

Mr W prepared a psychosexual assessment of the father and a psychological assessment of the mother. Mr W was engaged because the Family Consultant recommended that the father participate in a psychosexual assessment to ascertain whether he poses a risk to the children.
Mr W was not cross-examined. On the final day of the trial, Mr Andrew, Counsel for the Independent Children’s Lawyer, had a telephone conversation with Mr W and informed Mr W that the Court would not be finding that the father posed an unacceptable risk of harm to the children. Mr W then indicated that the finding about the lack of unacceptable risk might cast doubt on his assessment.
In the circumstances, counsel for the Independent Children’s Lawyer did not seek to have Mr W’s report admitted into the evidence and I take no account of it.

Detective Senior Constable F and Detective Senior Constable G

I shall refer to the evidence of these witnesses and their interviews below.

Allegations of Sexual Abuse

I propose to consider whether the father constitutes an “unacceptable risk” of harm to the children before considering the broader requirements of the law.

Events on 1 November 2008

The mother says that on 1 November 2008 she was at home with both children. As indicated above the family was being visited by relatives of her previous husband, Mr X and Ms Y. The mother said that she was waiting to have a shower but Mr X was in the bathroom. She said that she was becoming impatient and B asked her why she did not go into the shower in any event. The mother said that she said to B words to the effect that she did not want to see Mr X’s private parts and that he would not want to see hers. The mother says that B then told her that she and C shower with their father when they are at his house. The mother said that she then asked B if she wears her underwear in the shower when her father was in there with her and that the child said that she did not. The mother said she then asked if the father wears his underwear when he is in the shower with her and again the child said no. The mother said that B then said to her “Daddy lets us touch his private parts”. The mother said that this came as a complete shock to her.
The mother said that she then asked Mr X and Ms Y to take the children to the shops but did not tell them what B had said to her. She rang her cousin Mr Z who is a police officer and he has spent time working with the Juvenile Aid Bureau of the Queensland Police. The mother said that she informed Mr Z what the child had said and that Mr Z confirmed that she should call her local police station at T Town which she did. The mother was asked to take the children to the police station which she did. At approximately 12:00 pm that day the mother says that she told the children that they were going to have lunch with a friend of hers who works at the police station.
The children were then interviewed by police officers. These were plain clothes Detective Senior Constable F and Detective Sergeant FF. The first part of the police procedure was to conduct interviews of the children apparently for the purposes of s 93A of the Evidence Act (Qld). These interviews were recorded and I have had the benefit of viewing and hearing the DVD recordings in court and in chambers. I shall refer again to the content of these interviews below. At the end of each interview the police officers decided that what the children said in the interviews would not be relevant or admissible as evidence in any proceedings under the relevant criminal legislation against their father. But there is another police procedure which the police usually undertake after interviewing children in this manner. This is a protective measures procedure in which the police endeavour to give the children some education about sexual abuse and particularly to impart to the children information designed to assist the children to report any concerns or experiences which they might have arising from any inappropriate action, particularly of a sexual nature, against them.
Detective Senior Constable F undertook this procedure in respect of each of the children. Unfortunately in the case of B, Detective Senior Constable F went a long way further than what one would have thought appropriate for the protective measures procedure. In effect, she re-interviewed the child about the allegations that the child’s mother had made, but this time without any recording of the interview.
Detective Senior Constable F said that she conducted this second interview because she thought in the recorded interview that B had been shy and not forthcoming and that she wanted to make sure that there were no child protection issues. But it is difficult not to reach the conclusion that what Detective Senior Constable F was actually doing was endeavouring to elicit from the child some statement or statements about sexual activity towards her which could then be passed on to the relevant authorities for further consideration and processing.
In fact this is precisely what occurred. Detective Senior Constable F concedes that what subsequently happened during this second interview was that through a process including the use of leading questions, the child said certain things which led the Senior Constable to think that the child had been subjected to some sexual behaviour with her father.
Approximately 20 minutes after concluding this second interview of B, Senior Constable F made some hand-written notes in her official notebook of her recollection of things she says the child said during the interview. These notes are as follows:
Off tape
[B] stated that whilst in the shower with her dad dad asks her to pull his private part. (showed action of pulling) She said does it but doesn’t like it & daddy asks her to do it again & again. Asked how grabs it? State with her hands. Asked if she touches it with anything else? No only hands. Happens in shower or bedroom. Whilst doing daddy makes animal. Asked if daddy touches her? Yes. How? Daddy pulls my private. (pulled hand)
But the notes reflect, and Detective Senior Constable F concedes, that she made no attempt to endeavour to record her actual questions and their sequence, nor the child’s answers, during the interview. At best what the notes represent is a vastly inadequate summary of Detective Senior Constable F’s recollection of what, in her opinion, the child was saying during the interview. Detective Senior Constable F conceded that the notes represented her interpretation of what the child said. Obviously there is opinion and conclusion involved. Clearly Detective Senior Constable F is not qualified to provide an opinion about this matter.
Later that afternoon Detective Senior Constable F telephoned the “police who prepare the occurrence report” and conveyed information to them for the purposes of preparation of an “occurrence report”. The relevant parts of the police occurrence report are as follows:
The [father] has whilst having the victim children in his care, repeatedly requested [B] “pull his private parts”. The [father] has also engaged in touching [B’s] private parts.
…
After the tapes were turned off, [B] was asked questions that would not be admissible in court. … Police asked direct questions for a Child Protection Purpose. [B] then made disclosures, stating that whilst in the shower, and in the subject father’s bedroom, the [father] asked her to pull his private parts and [B] showed a pulling action. [B] would not disclose what “private parts” meant, as she said “it is rude” and that she is “not allowed talk about it”. [B] stated she pulled the private part once, and then the [father] asked her to pull again and again. [B] stated that she does not [like] doing it, but the [father] asked her repeatedly to do it again. … [B] stated that the [father] makes animal noises while she is touching private parts; which she described as sounding like an “elephant or a monkey”. [B] further stated that she pulled “daddy’s privates” with her hand, and further that the [father] told her not to tell anyone about it, as she would “get into big trouble off daddy”. [B] was reluctant to talk any further in relation to this matter. When Police asked if daddy touches her privates, [B] said “yes”, and that “daddy pulls my privates”. [B] again indicated a pulling action with her hand.
As indicated above, the Department then became involved. They conducted interviews of the mother and the father. The children were again interviewed, this time at their school. There was a medical examination of both children at the Children’s Hospital. The children, notwithstanding their very young ages, went through six separate counselling sessions, conducted by a child assault counsellor, Ms S.
The father denies strongly that there have been any untoward behaviours by him towards the children.

Events on 15-17 December 2008

On 15 December 2008 the mother said that she was endeavouring to feed B. They were sitting at the dining room table and B was leaning against her chest. The mother said she was trying to encourage B to eat and that B was turning away, saying that she did not want to. The mother said that as B was turning her head she was hurting the mother’s breasts. The mother said she said “stop, you’re hurting me”. The mother said that B then said “Daddy loves my boobies but I don’t have boobies, you have boobies mummy.”.
The mother said at this point she was worried that some sort of abuse was still happening. She rang the police early the following day.

On 17 December 2008, as indicated above, the mother took the children to the U Town Police Station. The children were separately interviewed by a police officer and by Ms R, an officer of the Department.
As indicated above, I have had the benefit of listening to and viewing the recorded interviews of the children on this occasion. After some little time the police officer asked B whether she remembered having dinner with her mother the other night and saying to mummy “Daddy likes your boobies”. The child replied “yes”. The police officer asked the child to tell her about it. The child responded that she forgot. She was asked did she know why she said that to her mother. She said she did not know. The child was asked what are boobies. She responded that “they grow on people – on mummies.”.
Some minutes later the child was again asked why did she say to mummy that daddy likes her boobies. The child responded that she did not know.
After some minutes Ms R introduced the subject of the bath and the shower at the father’s home. B was asked when she has a bath who does she has a bath with. She replied “sometimes me and [C] and Daddy and sometimes Daddy”. She also said “sometimes just Daddy [in the bath]”. She was asked if Daddy, Will and she are in the bath what happens. She replied “we get squashed, Daddy’s always in the middle, actually he’s near the edge, actually he’s not, I’m in the middle he’s on the edge”.
B was asked whether she was in the shower by herself and she answered yes. She was asked whether sometimes she showered with C and she answered yes. She was asked whether sometimes she was in the shower with daddy and she answered yes. She was asked how many times with daddy and she answered once or twice.
The interviewer said “tell me about the shower with Daddy” and the child responded “don’t know” and when pressed she said she did not know because her daddy had not told her yet.
At the time that the officers were asking B about the bath and the shower it was obvious from the visual recording that the child was becoming quite impatient and distracted.
After the interview had been proceeding for in excess of 30 minutes Ms R raised the subject of private parts. B was asked whether she knew what her private parts are. She answered “yes fanny and diddle”. She was asked who is allowed to touch your private parts and she responded “Daddy when only if he’s washing them”. B was asked “has Daddy touched your fanny any other time?” and she answered no. She was asked “has Daddy ever touched your fanny?” and she said “yes, when he’s washing me”. The interviewer said “Daddy is a boy, he’s got a diddle?”. B responded yes. The interviewer asked “have you ever touched Daddy’s diddle?” and B said “yes”. She was asked “when” and she responded when she is washing him. Then there was some further detailed conversation about washing. B was asked how often she washed daddy’s diddle. She said “two times, no three times I think”. At this point B was quite distracted to the point where the police officer asked her to sit still for a couple of minutes so that they can talk about that. Then there were further questions about touching daddy’s diddle and about daddy washing B. B was asked “when you have a shower or a bath with Daddy does he always get you to wash his diddle?” and the child answered no. The interviewer asked “what about [C]? Does [C] sometimes wash Daddy’s diddle?” and B responded “yes”. B was asked to tell the officers about that and she responded “I don’t know”.
I have not included details of this last part of the interview because by this time the child had been subjected to questions for close to 40 minutes. She was, in my view, becoming quite impatient with the interviewers. During the conversation about touching and washing daddy’s diddle she was lying in the armchair and swinging her legs back so that they hit her head. Clearly she was very tired of being asked questions.
In these circumstances I have serious reservations about the reliability of this part of the material. Having said that, as indicated above, I am troubled by the repeated references to the children being in the bath or the shower with daddy.

Events on 11 February 2009

This was the fourth occasion on which the children were having a counselling session with Ms S, the child assault counsellor engaged by the Department. Ms S said that during the session they had been talking about “good secrets” and “bad secrets”. C was lying with his head on his mother’s lap. When they were talking about secrets Ms S said C said “Daddy would tickle my … you know, can’t say (pointing to below his waist) … the part below the other part … you know … my balls. I tried to get away and move back because it tickled. I tried to kick him”.
Ms S said that C seemed very uncomfortable during this conversation but was relaxed and settled after the session. She said they discussed the fact that their father has stated that he has not done these things and B looked quickly aghast, firstly at Ms S and then at her mother. She had a strong frown on her face and pursed her lips and her actions appeared to Ms S to be one of disbelief that her father could say that.
Ms S expressed the opinion that the children “have made disclosures of their father’s sexually inappropriate behaviour during the sessions.”

Events on 16 October 2009

As indicated above, on 16 October 2009 the mother was driving home from the shops with the children. They were talking about a birthday party which the children were to attend the next day, and games which might be played at the party. The mother said B said words to the effect “Daddy lets us pull down his pants and we play pull down pants games”. The mother said that she asked whether the father also pulls down their underpants and that both children said “Yes”.
The children had been at their father’s home that morning and apparently had both wet their beds.
The following day the mother and the children attended the U Town Police Station.
Both children were interviewed by Detective Senior Constable G after the Detective Senior Constable spoke with the mother. As indicated above, I have had the benefit of watching and listening to the DVD recordings of these interviews. Both children were asked questions about the shopping trip the previous day and specifically what they told their mother. Neither child had any recollection of saying the father let them pull down his pants. There was nothing during those interviews to suggest any inappropriate behaviour by the father to either child.
C did say during his interview that B makes things up. During her cross-examination the mother denied that B makes things up but said that B has “a bit of an imagination”.
As also indicated above, after Detective Senior Constable G concluded the taped interviews she spoke with B “off tape”. Detective Senior Constable G made some brief notes of this conversation. These notes are as follows:
Only swim
Plays nuddy games with
Boys put there privates on the other other [sic] persons private
Its disgusting
At dads house
In daddy’s bedroom
Sometimes comes out in the longue [sic]
Ly [sic] down & put [Cs]
[C] bottom
Stop it daddy
Detective Senior Constable G’s explanation for conducting the untaped interview was that she wanted to satisfy herself that the alleged incidents were not occurring. She said that she had reservations about whether B was telling her the truth in the taped interview.
An occurrence report was subsequently produced. Amongst other things it contained the following:
No disclosures were made by the children on video. Victim [B] later made disclosures of a sexual nature relating to the [father] and [C]. Police questioned [C] in relation to these disclosures, and he stated that his sister was a liar. Police contact Crisis Care and spoke with [Ms AA] who stated that they would act immediately as this has been the third spontaneous disclosure made by the victim children in a 12 month period. …
The record of notification at the Department prepared by Ms AA includes the following:
- the mother presented the children at the police station this morning as there has been previous substantiated child protection notifications where the father had sexually abused the children.
- the children were very overactive during the interview and made no disclosures on tape but once the tape and video were turned off [B] told police that “her father and [C] are disgusting”. [B] stated that [C] and the father take there [sic] clothes off and “go bottom to bottom”. [B] informed police that [C] and the father put their private parts on each other and she “hates it”. [B] stated that this occurs in her father’s bedroom and in the lounge room. [B] stated that these are called “nude games” and they all “have” to play.
- police spoke with [C] who denied that he plays “nude games” stating “[B] is a liar and people will always make up stuff”. The notifier noted that this phrase seemed at odds with [C’s] normal speech pattern and presented as a “learned” statement. The notifier stated that while [C] had been quite active and playful during the interview when asked about the nude games he rolled into a ball on the floor and refused to speak any further.
During the untaped interview and afterwards, Detective Senior Constable G did not record any of her questions to B. During cross-examination, Detective Senior Constable G was unable to recall any of the details of the “off tape” interview. So what the material in the occurrence report to the effect that B made disclosures of a sexual nature amounts to, is, in my view, the opinion of Detective Senior Constable G. It is clear that she is not qualified to provide such an opinion.
The children were interviewed by officers of the Department, Ms BB and Ms CC on 29 October 2009. After some time the interviewer raised with B the subject of C and her having attended at the Police Station to talk about worries and being safe and things that worried them at their father’s home. B made a long drawn out sigh like she was bored.
B was asked what she talked to the police about and B said they had gone to talk about her father because he was naughty. When officers asked why he was naughty B said because he “smacks us” and he smacks C. When B was asked where her father smacks C she said she did not know and that she did not see her father smack C.
The interviewer then asked questions about several topics including where the father touches her and C, how the father touched C and that the officers had been told about rude games that are played at their father’s house. In my view, B gave quite contradictory responses in relation to these topics. She was obviously impatient and bored by the questions. At the end of the interview, after B was observed to be wriggling in her chair, sighing and sliding slowly to the floor, she was asked to answer one last question.
B was then asked to tell the officers whether the following was a truth or a lie:
[Father] has touched [C] on his front and back private parts – [B] answered “lie”.
[C] has said [father[ touches him on his private parts – [B] answered “lie”
At this point the interviewer informed B she was confused and B giggled.
Father has never touched [C] on his front or back private parts – [B] answered “lie”.
[B] did not see [father] touch [C’s] front and back privates but [C] told [B] [father] touched [C] on his front and back private parts – [B] answered “lie”.
[Father] and [C] play rude games and they touch their privates together – [B] laughed and answered “lie”.
In my view no weight should be placed on any of the material covered in this interview as suggesting that the father has engaged in any untoward behaviour towards the children.
The same Departmental officers then interviewed C, this interview taking some 50 minutes.
After some time C informed the officers that he and B never sleep at their father’s home. When the officer asked whether C knew why they did not sleep at their father’s home C replied that it was because their father has been naughty. But C was unable to explain what naughty meant. He also said that it was because his father has done bad things to him lots of times and because his father has been annoying. But he was unable to say what these things were.
When the subject of why he and B had gone to the police station was raised C said that he had forgotten what he had talked to the police about.
The interviewer asked C if his father played “rude games” with him and B where his father took his pants down, took C’s pants down and touched his private parts on C’s private parts. C sat upright immediately, stared directly at the officer with wide eyes and said “No” and that “[B] tricks people, she even tricks me” and that B was just playing tricks on people.
The interviewer asked whether C had ever gone into the father’s room and been in his bed in the mornings and the child was silent. C was asked if it worries him when he has gone into his father’s bed in the mornings and C replied there is nothing that worried him. C advised that his pop had punched him on the bottom once with his hand for being naughty.
C was asked whether he had any worries about going to his father’s house and he replied that he liked seeing his father.
In my view, there is nothing from this interview which reflects poorly on the father.

Does the material lead to a finding of “unacceptable risk”?

So far as the material concerning 1 November 2008 is concerned, as indicated above, the unrecorded material is quite unreliable. It is based on the opinion of a police officer who does not have the qualifications and experience to provide such an opinion. In fact the only relevant training which Detective Senior Constable F had received was that some weeks previous to interviewing the children, she had attended a week long “I Care” course which provided some instruction in techniques for interviewing children. But Detective Senior Constable F is not qualified to interpret the meaning of things said by children. In these circumstances, in my view, the material prepared by Detective Senior Constable F and included in the occurrence report and her oral evidence about the unrecorded interview are seriously flawed and unreliable I am unable to take account of this material.
In my view, there was nothing about the recorded part of the interview which reflected adversely on the father except, as indicated above, I prefer the children’s statements about being in the bath and the shower with their father and all washing one another’s private parts to the father’s denials about this. But such behaviour, assuming it is true, in my view, would not appear to be sexual behaviour. Many people in the community would regard it to be within social norms to shower with their young children. Where parental relationships have broken down and especially in cases where the parents have been engaging in litigation about their children, I would have thought such behaviour to be most unwise. But of itself it is not sexual abuse.
Well into the interview C was asked about his private parts. He did not want to discuss his private parts and was quite uncomfortable about this. He said “they’re pretty rude”. There followed a considerable number of questions about who had touched his private parts. Amongst the answers emerged that Daddy lifts up his willy and puts it down and that Daddy always touches his balls and it tickles. The child also said his father had touched his willy in his father’s room. This material emerged quite late in the interview and the interview lasted approximately 38 minutes.
In my view this is highly unreliable. It should be no surprise that C’s father would have touched his penis and his testicles. After all, prior to the first allegation on 1 November 2008 the father regularly undertook the parental duties of dressing the children and assisting them at the toilet. Some touching of the children’s private parts would have been inevitable and unavoidable in this context.
Yet the children’s mother regards this material from C as having a sinister context and that it is evidence that the father has sexually abused C. I must say I do not regard these statements by C in such a way.
In relation to the events on 15 December 2008 and B saying to her mother “Daddy loves my boobies …” there is nothing to support any sinister interpretation of this.
During the interview of the children about this subject by the police officer and Ms R two days later, Ms R asked questions about the bath and the shower, as indicated above. Then the subject of private parts was raised as indicated above. In my view, this interview really ranged over subjects previously raised with the children and nothing new arose.
As indicated above, Ms S, who had been engaged by the Department to provide child assault counselling to the children said that there had been “disclosures” on 11 February 2009 during her session with the children as described above. This was in essence C saying during discussion about secrets that his father would “tickle my … balls”.
As I have said, Ms S expressed the opinion that this was a disclosure of sexually inappropriate behaviour. It is not clear to me that Ms S is qualified to provide such an opinion. I must say I do not feel confident about accepting her opinion. Ms S commenced her engagement with the children and their mother on the understanding that the view of the Department was that there were “substantiated allegations of emotional harm to [B] and risk of emotional harm to [C] caused by sexual abuse to [B] by their father …”.
Ms S, in developing a strategy for the counselling, decided that the children needed “a clear and concise understanding of why their (time) with their father has altered …”. This involved over the sessions “simple outlines of their father’s behaviour” (whatever this was because Ms S’ reports did not include details although her notes referred to Daddy asking them to touch his private parts and Daddy having done “wrong”.). But clearly the perception of the children was that their father had been “naughty”.
During the children’s first session on 27 January 2009, C’s perception was that his time with his father had changed because “[his father] did rude things”. Ms S said that C appeared to be confused and at the end of the session he ran out of the room and hid under some bedding in his mother’s bedroom.
Ms S also “enlisted” the support of the children’s mother in this exercise.
After three sessions, which included C being given outlines of his father’s bad and naughty behaviour, during the fourth session and after Ms S had been “recapping” on the previous week, C made the above statement during a discussion about secrets.
In my view, in these circumstances, this Court should be cautious indeed about accepting Ms S’ opinion that C’s statement is evidence of sexual behaviour by his father towards him. I do not regard it as being such. It would hardly be surprising for C, in circumstances in which he had been counselled on several occasions to the effect that his father had done bad things to him, to find something to say about the subject of private parts and bad behaviours.
As indicated above, on 16 October 2009 the mother said that B said to her that her father let the children pull down his pants and they play pull down pants games.
I have already indicated that I did not propose to accept into evidence the opinion of Detective Senior Constable G for the reasons referred to above.
The matter of the “pull down pants” game was explored by the Family Consultant with B. A summary is set out at paragraphs 72 and 73 of the Family Consultant’s Report. At paragraph 74, the Family Consultant said “[B’s] Description impressed as being a dressing routine in preparation for school or going to bed”. The Family Consultant said that C was specifically asked about “pull down pants games” but did not know what “pull down pants game is”.

Dr E conducted psychological testing of the father. In relation to the “Personality Assessment Inventory”, Dr E said at paragraphs 3.4 and 3.5 of her Report dated 24 February 2009 as follows:
[Mr McDonald’s] responses on the test indicate he may have presented himself in a favourable light, denied personal limitations, and portrayed himself as free of common shortcoming to which most individuals will admit. Consequently the defensiveness index was very high. He may be deliberately lying, but equally may lack insight into his personal shortcomings.
3.5 Despite his defensiveness the results can be adjusted for the positive bias and areas of concern that emerged include: inflated self-esteem, distrust and compulsiveness or rigidity.
At paragraphs 3.6 and 3.7, Dr E said:
3.6 [Mr McDonald’s] clinical profile was within normal limits with no evidence of psychopathology in the scales which include measures of depression, anxiety, psychosis, health and physical functioning, but his defensive responding may cause him to be minimising these concerns.
3.7 [Mr McDonald’s] self-concept is such that he displays an uncritical self-evaluation which may be due to his attempt to portray a favourable impression, but could reflect his tendency to attribute blame externally rather than acknowledging any personal failings. This is consistent with his defensive reactions descried [sic] by the Case Manager at the Department of Child Sagety [sic] and his stance that [Ms Michael] coached the children to lie about the sexual allegations. The assessment indicated a sense of grandiosity showing him as self-centred and narcissistic with an inability to recognise his limitations. There was also an indication that he has a wariness in relationships with other; possibly a reflection of the eventual failure of his two main love relationships. But overall there is an indication of a personality style that is rigid, dogmatic and affectively constricted.
On a positive note, Dr E found the father to be “self-assured and confident” and that he had “excellent social support”.
The task of Dr E was also to prepare a report on the father regarding any risk he may pose to his children following the allegations.
Dr E said that she worked on the assumption that the alleged “touching” did occur. Dr E’s conclusions and recommendations in her first report included the following at paragraphs 6.1 – 6.3:
6.1 [Mr McDonald] is not cognitively impaired and is of average intelligence. His ability to understand concepts, learn new information and generalise from that learning is adequate, so this is not an explanation for his apparent atypical social and emotional responses to discussions of the alleged abuse.
6.2 [Mr McDonald] has characteristics of a Personality Disorder Not Otherwise Specified, a pattern of behaviour involving difficulties in interpersonal relationships resulting from a reluctance to acknowledge any personal contribution to problems. Such a pattern typically involves strongly held basic beliefs that set the person up to react rigidly and defensively, and contributes to problems in communicating effectively with others, particularly in demonstrating understanding of others views. In his case [Mr McDonald] also has some intimacy deficits, particularly in couple relationships.
6.3 [Mr McDonald] has a clear discomfort with sexual discussion, reflecting his lack of meaningful sexual education. An upbringing in which sex is not discussed (although it is obvious it exists) gives a clear indication that sex is taboo. This prohibition and discomfort then becomes generalised to include normal, healthy discussions of sex. It can also blur the distinction between acceptable and unacceptable sexual expression.
Dr E had found the father possessed an unusual interpersonal style and marked discomfort with issues of sexuality that she considered would hinder the healthy management of sexuality issues with the children. Accordingly, Dr E suggested that the father engage in therapy to address this discomfort and he has undertaken such therapy apparently with very positive results.
Dr E’s conclusion in her later Report in June 2009 about the father is that he retains an interpersonal style that may irritate others, but this has no bearing on his level of sexual risk to his children. Dr E said that she was confident that the father has commenced a process of change to minimise any sexual risk to his children. He has developed an understanding of sometimes inadvertent actions by him that could be misconstrued as sexual in nature. He has developed an appropriate and workable protection plan to cover a range of situations and has substantially changed his willingness to acknowledge sexual issues and discuss sexual topics in appropriate ways. As indicated above, Dr E said given the recent progress, the level of risk posed by the father is extremely low. Dr E also said in her first report dated 24 February 2009 that the father does not have a problematic parenting style and the indications are that he can effectively care for his children (paragraph 6.4).
In my view, Dr E’s reports reflect a balanced approach.
On the other hand, the Family Consultant was very critical of the father in relation to what she appeared to regard as deficits in his personality.
At paragraph 33 of her Report, the Family Consultant said:
33. [Mr McDonald’s] presentation as a whole, however, appeared to the report writer to be more consistent with a behavioural/personality idiosyncrasy rather than a cognitive limitation; and occasionally it seemed to be indicative of a potential mental health problem …
Strong objection was taken to this by learned counsel for the father and, in my view, properly so. From my reading of the Family Consultant’s Curriculum Vitae, I am not aware of any mental health experience which would qualify her to provide such an opinion. Having said this, the first point of the observation appears to be consistent with observations made by Dr E whom I am satisfied has the qualifications and experience to provide such an opinion.
One of the difficulties is that Dr E was not required for cross-examination. So there was no opportunity to test the extent (if any) to which Dr E’s assessment that the father showed “a sense of grandiosity showing him as self-centred and narcissistic with an inability to recognise his limitations” and “overall…an indication of a personality style that is rigid, dogmatic and affectively constricted” might be different if Dr E had been informed that the Court’s view about the allegations was consistent with the father’s denials.
Having said this, Dr E was not required for cross-examination and therefore this material remains unchallenged.
The Family Consultant goes on in her report to accept the correctness of the opinion that the father has a personality disorder and says as follows at paragraph 104:
The impact upon the children of [Mr McDonald’s] behavioural and personality traits has the potential to be detrimental. His flaws are likely to become the children’s legacy and may potentially undermine their future outcomes (e.g. sense of self worth, dysfunctional adult relationships, personality deficits). It is thus my assessment that there is an ongoing risk to the children if their time with [Mr McDonald] is not managed appropriately.
This is a very strong opinion. The use of “likely” makes it particularly so. I have serious reservations about accepting this.
I do not quarrel with the Family Consultant’s qualifications and experience to provide such an opinion in so far as it appears to be based on Dr E’s views about the father’s personality. But I have several difficulties with the opinion.
Firstly, the so called “flaws” in the father’s personality might well be overstated.
But more importantly, I am much less pessimistic than the Family Consultant about the potential for harm to the children, assuming the father has such “flaws”, given the fact that the father is only one of numerous adults who play a significant role in the lives of the children, and also given the fact that the father has stated his preparedness to attend Dr E for further therapy. This group of significant adults obviously includes the mother, her partner Mr M and the father’s parents who have shown they will be regularly present in the children’s lives.
On the other hand, there must also be some concern about the mother’s parental capacity. As indicated above, unfortunately she has been a victim of child sexual abuse. The mother said that she was abused sexually when she was in primary school and then later during her high school years. She said that both incidents were perpetrated by family friends. To make matters more difficult, the mother said that her elder daughter Ms K was subjected to sexual abuse when she was a very young child. I accept the veracity of these statements by the mother. The mother also said that she has never had any counselling in respect of this.
One would have thought that a parent with such awful matters in their background might be vulnerable to some hypersensitivity about circumstances open to an interpretation which could signal sexual abuse. So that when B said that she and C had been in the shower with their father and that he let them touch his private parts, one could understand the mother’s concern. But in my view things should have been different when B said that her Daddy loves her boobies and also when she said subsequently that he lets them pull down his pants and they play the pull down pants game. In my view the mother ought to have been able to let pass the statement about “boobies”. It would have been capable of a multitude of innocent interpretations by comparison with the single sinister interpretation essential to a justification for further involvement of the children with the Police and the Department. The dreadful consequence for the children of such a poor judgment by their mother was being subjected to numerous further interviews by the Police and the Department. These were not pleasant experiences for the children.
I have a similar view about the mother’s reaction to the statement about the “pull down pants”.
But to be fair to the mother, she did indicate to one of the officers involved or perhaps to the Family Consultant that had it not been for the original “substantiated” assessment by the Department she would not have raised these later matters with the Police.
In my view there is a need for the mother to endeavour to seek assistance from an appropriately qualified professional person to address this matter which, as I say, almost certainly affects her parental capacity.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Unfortunately each of the parties has demonstrated some deficits in relation to their attitude to their children and to their responsibilities as parents. They have failed to develop a businesslike level of communication concerning the children. They have also failed to always protect the children from their arguments and conflictual behaviour. I spoke with them about the importance of this during the course of the hearing. As indicated above, the father has expressed a preparedness to continue to attend on Dr E and to endeavour to improve his manner of communication with the children’s mother. The mother is also prepared to seek assistance. I propose to make an order requiring both parties to seek professional assistance in this regard.

Should the Presumption of Equal Shared Parental Responsibility Apply

It is submitted on behalf of the mother that the Court should make an order to the effect that she have the sole parental responsibility for the children. This submission is on the basis that these parties do not enjoy a reasonable level of communication or the level of cooperation that would be required for them to be able to cooperate in making the major decisions for the children.
On the other hand, it was submitted on behalf of the Independent Children’s Lawyer that the parties were able to keep a shared parenting arrangement in operation between March 2007 and November 2008 prior to the initial allegations of sexual abuse having been made. It was further submitted that even after the allegations had been made, once the paternal grandparents had moved to live with the father, the shared parenting arrangement had been able to continue to be managed by the parents. It was submitted that this ought to give the Court some confidence that the parties will be able to continue to manage such an arrangement.
I accept the submissions on behalf of the Independent Children’s Lawyer about this. Furthermore, I am not persuaded that the mother’s judgment is always sufficiently sound to justify granting to her sole parental responsibility.
It is a serious matter to deprive a parent of their parental responsibility, and I would not regard it as being in these children’s best interests to do so.
It is true that there is a poor relationship between the parents and, as indicated above, a poor level of communication between them. But they have been able to grapple with major decisions such as where the children will attend school. It was recommended to them by the education authorities that the children repeat their last year at school and the reality is that this has been accepted by each of the parents and the children have in fact repeated. There have been health issues such as the need for speech therapy to be the subject of determination by the parents and this matter has also been able to be determined by them.
Having considered the relevant considerations, I am unpersuaded that it would be in the best interests of these children for the presumption to be rebutted.
Because the presumption is applied, I must first consider making an order for the children to spend equal time with each parent if this will be in the best interests of the children and be reasonably practicable.
Such an order is sought by the children’s father and supported by the Independent Children’s Lawyer. However, this is opposed by the children’s mother.
As indicated above, the mother seeks orders to the effect that the children live primarily with her and that they spend time with their father from after school Friday to before school Monday each alternate week, from after school Wednesday to before school Thursday in the intervening week, half school holidays and on the special occasions referred to in the order sought.
The submissions in favour of this arrangement are as follows. Firstly, it would be consistent with what was recommended in the original family report in 2007 prepared by Ms EE. Secondly, the Family Consultant, recommended this arrangement on the bases that it would provide one, rather than two, homes for the children to live in for most of the time they attended school and, that it would more likely promote better parenting from the children’s mother given her anxiety and belief that the children have been sexually abused because it would provide less time for the children to be in the care of their father, thereby reducing the mother’s anxiety.
The Family Consultant also expressed the view that a shared care arrangement requires a high level of co-operation between the parents and that these parents have not been able to demonstrate this. The Family Consultant said that there could be many matters that the parents would have to discuss and make decisions about virtually on a day to day basis concerning the children and that these parents would be unable to do this.
However, during the course of some discussion with me during her cross-examination, the Family Consultant agreed that she had overstated the need for the parents to discuss matters relating to the children on such a frequent basis and that in a week-about parenting arrangement there would be little need for them to converse directly.
As indicated above, I prefer to accept the submissions by the Independent Children’s Lawyer in relation to this matter. I am not enamoured of going back to the recommendation in Ms EE’s now very old report. These parents have been able to manage reasonably well with a shared parenting arrangement for most of the time since they separated subject to the constraints and adjustments consequent upon the investigations in relation to the allegations of child sexual abuse.
These children are very used to spending substantial time in their father’s household as well as in their mother’s household. There have been some difficulties. But if one put aside the above constraints and adjustments, the children and the parents have managed the arrangement well. In my view, there is no objective evidence to indicate that this has not operated in the children’s interests. The children have been managing quite well at school despite the fact that there have been some learning difficulties apparently as a consequence of the children having been born approximately 14 weeks premature. As indicated above, the children have a very close and loving relationship with their father. They enjoy immensely living with him in his home. As also indicated above, when they were confined to spending very limited time with him, they asked why they were not seeing more of him and gave every impression that they would prefer to be spending a lot more time with their father.
And as I have said, Dr E said that the father can effectively care for the children.
In any event, the mother informed the Family Consultant in April 2010, during her interview for preparation of the Family Report, that the shared parenting arrangement was operating “reasonably okay except for a few teething problems.”
And in my view, an equal time arrangement will be reasonably practicable. The parents live reasonably close to one another. They have demonstrated now over a long time that they have been able to manage the changeovers of the living arrangements. In this regard, the mother has asserted that there have been some difficulties with C changing over. The father asserts that any such difficulties have only been because the mother, as a consequence of her own emotional needs, protracts the actual handing over of C by taking a long time to farewell him and even after she has done so, returning for a final kiss and cuddle.
The arrangement proposed by the father and supported by the Independent Children’s Lawyer would not leave much opportunity for protracted changeovers because the changeovers would be after school each Friday. The only time that there would be any need for direct contact between the parties would be in relation to each school holidays. But even with these limited changeovers, looking at the long history of the parties being able to implement the parenting arrangements without major difficulty, apart from the allegations of sexual abuse, there is some positive experience to leave one reasonably confident that the requirements for changeover in school holidays would be able to be achieved without distress for the children.
In my view the best interests of these children will be served by them living in an equal time shared parenting arrangement as proposed by the father and the Independent Children's Lawyer.

Injunctions and Notations

As indicated above the father also seeks various injunctions which would operate as restraints on the mother. Each of the injunctions sought was opposed by the mother.
The first is an injunction to restrain the mother from questioning the children in relation to smacking, bathing and being harmed while in their father’s care. This application did not attract the support of the Independent Children's Lawyer. While I have concerns that it would not be in the children’s interest to continue to be questioned about these matters which have assumed such prominence in their young lives now over quite some time, I am not persuaded that it is appropriate to grant the injunction. Having said this, if there is evidence before the Court in the future that the children continue to be questioned about such matters then this would be relevant to the mother’s capacity to appropriately parent the children and firm action might be required to protect the children from this.

The second injunction is to the effect that the mother be restrained from making or causing or requesting any other person to make allegations that the father has abused or will abuse the children. Similarly, such a restraint has not attracted the support of the Independent Children's Lawyer. I do not propose to grant this injunction. As with the previous application for an injunction, the mother needs to be aware that this sort of behaviour will be highly relevant to her capacity to parent the children appropriately.
The third restraint sought is an order to the effect that the mother be restrained from taking, causing or requesting another person to take the children to any medical practitioner or to the Department, or the police in relation to any allegation against the father. Such a restraint would be supported by the Independent Children's Lawyer on the basis that there be added thereto the words “without first obtaining the leave of this Court”. I must say I have a different view about this matter than that in relation to the previous two. In my view it has been so contrary to the interests of the children for them to have been subjected to so many interviews and the medical examinations, especially when this course has been precipitated by unreliable material, that the children should be spared the possibility of further distress and upset in this manner. In my view, to further subject them to the frailties of the Police and Departmental investigation systems without the need for this being properly considered would be quite inconsistent with their best interests. Accordingly, I propose to put such an injunction in place.
The next injunction sought is that the mother be restrained from causing or requesting or consenting to the children being medically examined for the purpose of determining whether the children have been abused by the father. Such an order is not supported by the Independent Children's Lawyer. In considering the case for such an order, in my view, it has to be remembered that it was the Department, not the mother, who required B and C to be subjected to a medical examination. The mother opposed such a course because she did not want the children being subjected to the inherent distress and discomfort of such an examination. Of course, if the mother was to engage in such behaviour without reasonable cause, in my view, this would be a matter which would speak poorly of her parental capacity.
The next injunction sought is to the effect that the mother be restrained from commencing any further proceedings seeking to limit the time the children live with their father or seeking to impose conditions on the time they live with their father without first obtaining the leave of this Court. Such an order is supported by the Independent Children's Lawyer. In opposing such order counsel for the mother submitted that such an order would be similar to an order pursuant to s 118 of the Act namely, an order which could only be made if the Court was satisfied that the proceedings have been frivolous or vexatious. Although I do not agree that such would be the only circumstances to permit the making of such an order, I do not propose to make the order. But each of the parties needs to understand that the best interests of these children will be served by them being spared further litigation. In the event that one or other of the parties is unable to refrain from seeking to change the orders in the absence of a significant change in circumstances this would be a relevant matter to take into account in making any further orders.
The sixth injunction sought is to the effect that the mother attend upon a psychiatrist or psychologist nominated by the Independent Children's Lawyer for a period of six months or such time as may be recommended by the treating psychiatrist / psychologist for the purpose of assisting her to come to terms with the orders and notations made in these proceedings and that such person be provided with a copy of the orders and the Reasons for Judgment. Such an order is supported by the Independent Children's Lawyer but on the basis that the specified professionals also include a medical practitioner. In opposing the making of such an order counsel for the mother indicated that the mother proposed to seek assistance but she did not want to be the subject of a Court order for such. In my view the interests of these children would be assisted by an order similar to that which is sought. But it seems to me that the purpose is not only to try to assist the mother to come to terms with the Court orders but also to assist the mother in relation to matters in her background, particularly as a victim of child sexual abuse as well as to assist with what is almost certain to be some anxiety about the arrangements which the Court has determined are to be made in the interests of these children. In my view the appropriate professional is a psychiatrist or psychologist.
The last order sought is that the father have leave to provide a copy of the orders and Reasons for Judgment to the Department and to the Queensland Police Service. I do not think there was serious objection to this matter. In any event, in my view, there are public policy interests and considerations involved in the manner by which these children have been managed by the Police and the Department. In my view it is appropriate for the orders and Reasons to be provided to these authorities.
The father also seeks various formal notations.
The first is that this Court has determined that the father does not pose any risk of harm to the children as alleged against him. This is opposed by both the mother and the Independent Children's Lawyer. In any event, I have already dealt with this. I do not propose to make such a notation. But I do regard it as important to make a notation along the lines that this Court has determined that the father does not pose an unacceptable risk of harm to the children.
I also propose to make notations to the effect that material apparently relied on by the Department and the Police which has formed the basis for the Department to substantiate findings that these children have been sexually abused by their father is unsafe and unsatisfactory. I also propose to request the Department and the Queensland Police Service to amend their records to indicate that such allegations be recorded as unsubstantiated.
I also propose to include some further notations of a consequential machinery nature flowing from this.
I propose to make an order that the father participate in further therapy with Dr E in relation to his interactions with the mother and parenting matters generally.

I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 25 February 2011.

Associate:

Date: 25 February 2011

[2011] FamCA 164

25 February 2011

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Natural Justice

Procedural Fairness

Injunction

Consent

Remedies