Milbury and Milbury

[2008] FMCAfam 1210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILBURY & MILBURY [2008] FMCAfam 1210

FAMILY LAW – Contravention of orders for children to spend time with their father – claim of reasonable excuse – allegation four year old girl was sexually abused by her father since she was two years old – whether mother believed on reasonable grounds that suspending contact was necessary to protect health or safety of children – whether the girl not spending time with her father was necessary to protect her health or safety – whether her two year old brother not spending time with his father was necessary to protect the brother’s health or safety.

Family Law Act 1975, ss.70NAE(1), 70NAE(5), 70NAF, 70NBA, 70NDA(c)

Childers & Leslie (2008) 217 FLR 124
In the Marriage of Gaunt (1978) 33 FLR 148

Applicant: MR MILBURY

Respondent: MS MILBURY

File Number: MLC 9531 of 2007

Judgment of: Riley FM

Hearing dates: 8, 9 & 11 September, 24 October 2008

Date of Last Submission: 24 October 2008

Delivered at: Melbourne

Delivered on: 14 November 2008

REPRESENTATION

Counsel for the Applicant: Mr Indovino

Solicitors for the Applicant: Samuel Sleigh & Associates

Counsel for the Respondent: Mr Macfarlane

Solicitors for the Respondent: Berry Family Law

ORDERS

On the contravention application of the father filed on 20 June 2008, and upon hearing Mr Indovino of Counsel for the applicant father and Mr Macfarlane of Counsel for the respondent mother, and upon:

(a)the court being satisfied that the respondent mother has contravened paragraph 9(b) of the orders affecting children made in the Federal Magistrates Court of Australia on 27 February 2008 under the Family Law Act 1975 by failing to make [X], who was born in 2004, and [Y], who was born in 2006, available for changeover on 7 and 14 June 2008;

(b)the respondent mother not having proved that she had a reasonable excuse for the contraventions referred to in (a) above;

(c)no court having jurisdiction under the Family Law Act having previously determined that the respondent mother has, without reasonable excuse, contravened the order referred to in (a) above; and

(d)the court being satisfied that Subdivisions B and E of Division 13A of Part VII of the Family Law Act applies to the contravention referred to in (a) above,

IT IS ORDERED THAT

To be determined

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 9531 of 2007

MR MILBURY

Applicant

And

MS MILBURY

Respondent

REASONS FOR JUDGMENT

Background

1. This is a contravention application that was filed on 20 June 2008. The father alleges that the mother failed to have the children, [X], who was born in 2004 and who is now aged four and a half years, and [Y], who was born in 2006 and who is now aged two and a half years, available for changeover on 7 and 14 June 2008, contrary to paragraph 9(b) of orders made on 27 February 2008. The mother admitted the contraventions but said she had a reasonable excuse consisting of her reasonable belief that the father had sexually abused [X].

2. The father is 38 years of age and the mother is 35 years of age.  They commenced cohabitation in 2000, were married in March 2002 and separated on 13 July 2007. 

Legal framework

1. Subsection 70NAE(1) of the Family Law Act 1975 (“the Act”) provides that the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order affecting children include, but are not limited to, the circumstances set out in the following subsections. Relevantly, s.70NAE(5) of the Act provides that:

   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person, (including the respondent or the child ); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

2. Paragraphs 70NAE(5)(a) and (b) are cumulative. That is, the respondent must believe on reasonable grounds that the contravention was necessary, and the contravention must have continued for no longer than was necessary. Paragraph (b) does not say, “the contravention continued for no longer than the respondent reasonably believed was necessary”.  Rather, for there to be a reasonable excuse, the legislation requires that the contravention continued for no longer than was actually necessary.  (Of course, the courts cannot read additional words into legislation that makes sense without the additional words.)  Whether the contravention continued for no longer than was actually necessary to protect a person’s health or safety is a matter for the court to determine.  It is not a matter that depends on the belief of the respondent. 

3. Questions in contravention applications are generally to be determined on the balance of probabilities: s.70NAF of the Act. It is for the respondent to prove that she had a reasonable excuse: s.70NDA(c) of the Act.

4. The mother argued that whether she had a reasonable excuse was to be determined on the basis of a mixed subjective and objective text.  Some support for that proposition is to be found in the judgment of Warnick J in Childers & Leslie (2008) 217 FLR 124 at [23]. However, at that point in the judgment, his Honour was discussing various possible interpretations of s.70NAE(1) of the Act, rather than expressing a concluded view. At [34], his Honour cited the following passage from In the Marriage of Gaunt (1978) 33 FLR 148 at 152:

   The essential question is this -- can a party who does not agree with a court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

   ... A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause ...”

5. A respondent must have actually had the belief that he or she claims to have had.  To that extent, the test is subjective.  However, the belief must also have been reasonable.  To that extent, the test is objective.  In the present context, a belief on reasonable grounds is a belief that is reasonable in view of the knowledge in the respondent’s possession at the time of the contravention and in view of the knowledge that the respondent should reasonably have had prior to the contravention.  That is, a respondent’s belief is not reasonable if it is based on wilful ignorance or delusion. 

6. Matters arising after the contravention may be logically relevant to whether there was a reasonable excuse for the contravention: Childers & Leslie at [43]. For example, a child’s disclosure to a professional made after the contravention might make it more plausible that the child did in fact make a disclosure to the respondent before the contravention.

7. The issues in the present case are:

   a)whether the mother had the belief that she claimed to have;

   b)if so, whether the belief the mother claimed to have was reasonably held, in the light of what she knew or ought to have known as at 7 and 14 June 2008;

   c)

   whether not allowing [X] to spend time with her father on

   
   

   7 and 14 June 2008 was necessary to protect [X]’s health or safety; and

   d)whether not allowing [Y] to spend time with his father on 7 and 14 June 2008 was necessary to protect [Y]’s health or safety. 

Bathing [X]

1. The mother was hospitalised for the last six or eight weeks of her pregnancy with [Y], that is, from about mid-December 2005 to mid-February 2006.  During that time, [X] was cared for by her father, the paternal grandfather, Mr M, and his wife, Ms L, from Sunday evening to Tuesday and by her maternal grandfather, Mr C, and his partner, Ms C, for the rest of the week. 

2. The mother said in an affidavit sworn on 3 September 2008 that while she was in hospital she received a telephone call from Ms L.  The mother said that Ms L told her that [X] would scream when being undressed for her bath, and suggested that the mother should make enquiries to see if something had happened to [X].  The mother said Ms L also suggested to her that she should check with the maternal grandfather and Ms C to see if they had observed similar behaviour.

3. The mother told the family report writer, Delma D’Silva, in interviews for the family report dated 15 January 2008, that Ms L told her that “there is something I want to tell you” and “I think something has happened to [X]”.

4. The mother said in her affidavit sworn on 3 September 2008 that she had raised these issues with the father while she was in hospital and the father said, “Ms L talks shit” and “Ms L is a liar”. 

5. The mother said in her affidavit sworn on 3 September 2008 that on returning home from hospital, she immediately noticed that [X] had an extremely swollen vulva and severe irritation and soreness over her vagina and upper thighs.  The mother said that she took [X] to a local doctor recommended by the father, being Dr O.  In oral evidence, the mother said that Dr O was in fact the family doctor. 

6. In her affidavit sworn on 3 September 2008, the mother said that, after a cursory examination of [X] while she was wearing jeans and sitting on her father’s lap, the doctor said there was nothing to worry about.  The mother said that [X]’s vagina was not examined.  Dr O was not called to give evidence and his notes were not tendered in evidence.  The mother said in her affidavit sworn on 3 September 2008 that before the appointment with Dr O the father had repeatedly told the mother that there was nothing to worry about and that there was no need for [X] to see a doctor. 

7. The mother said in her affidavit that Ms L refused to discuss the matter with the mother, and Ms L’s husband, who is the paternal grandfather, became angry with the mother and said he did not want to talk about it.

8. The mother said in cross-examination that she and the father and [X] and [Y] had gone on a holiday with a group of friends to Queensland in April 2007.  The mother said that during that holiday she did not really have any concerns about the father spending time alone with any of the children.  She agreed that at that time she had faith and confidence that [X] and [Y] would be cared for by their father.

9. The mother agreed in cross-examination that Ms L had not mentioned any sexual impropriety and had not identified any one who might have committed any sexual impropriety.  The mother admitted in cross-examination that Ms L had actually told her that [X] had cried because the soap went in her eyes when Ms L was washing her hair.

10. Ms L swore an affidavit which was admitted into evidence without objection on the basis that the father was cross-examined about that affidavit.  However, Ms L was in hospital on the day when she would have been called to give evidence.  As a result, she was not cross-examined.  Ms L’s evidence must be assessed in that context.

11. Ms L said in her affidavit that she had reported to the mother that [X] did not like being bathed.  Ms L said that from her experience, that was not an uncommon occurrence.  Ms L categorically denied making any of the other statements alleged by the mother.  Ms L said that the father and the children had always had a close and warm relationship and she had no concerns whatsoever about the father not being a loving and caring father.  Ms L said that she had never seen or heard of any matter that would give her any suspicion that the father was anything other than a good father who at all times put the welfare of his children above anything else.  Ms L said that she had never observed any inappropriate behaviour by the father towards his children or any of his large number of nieces and nephews with whom he had regular contact.

12. The paternal grandfather, Mr M, adopted Ms L’s affidavit in so far as its contents were within his knowledge.  Mr M said in oral evidence that he was unaware that Ms L had any difficulties bathing [X] and did not know that Ms L had told the mother that [X] screamed when she was going to have a bath.  Mr M said he did not know about the mother attempting to discuss the issue with Ms L after the mother was discharged from hospital.  He denied that he had become angry with the mother when she wanted to talk about the issue.  When pressed he said that it was absolutely not true that he had become angry and stopped the mother and Ms L from having a discussion.

13. The father said in cross-examination that, while the mother was in hospital, he cared for [X] on Mondays and Tuesdays.  He said that he bathed her, clothed her and made her meals.  He said he bathed her every Monday and Tuesday, which were his days off, in the morning.  He said he had no problems bathing her.  He said that he did not get into the bath with [X].  He said that he washed her private parts with a cloth.  The father said he had no problems with bathing [X] or dressing her or washing her hair.  He said that his father and stepmother helped him look after [X] and they worked as a family.  In relation to the visit to Dr O, the father said [X] had nappy rash.

14. It was put to the father that Ms L in her affidavit had acknowledged that she had told the mother that [X] did not like being bathed and that the father’s evidence was inconsistent with Ms L’s.  The father said that he did not have a problem bathing [X].  The father agreed that Ms L had told him that she had had problems when trying to wash [X]’s hair.  The father said that he could not recall the mother saying that Ms L was concerned about [X]’s behaviour when she was being undressed for the bath but accepted that the mother might have told him that.  The father said he did not recall the mother telling him that Ms L had said that the mother should make enquiries to see if something had happened to [X].  The father said that he did recall that the mother had told him that Ms L had said that the mother should check with the maternal grandfather and his partner to see if they had observed similar behaviour in [X].  The father denied that he had said “Ms L talks shit” or “Ms L is a liar”.

In the bathroom in the mornings

1. The mother filed a notice of risk of child abuse on 29 November 2007.  She said that the abuse lasted from 2006 to the date of filing the notice and consisted of, among other things:

   a)[X] touching the father’s genitals with her hands;

   b)[X] touching the father’s genitals with her mouth;

   c)the father touching [X]’s genitals with his hands; and

   d)the father touching [X]’s genitals with his mouth.

2. These allegations were largely connected with events that the mother said took place in the family bathroom.  The mother said in her affidavit sworn on 3 September 2008 that:

   Frequently I would have the children say goodbye to the Husband as he prepared for work in the morning.  On several occasions I would leave [X] seated on the mat in the bathroom talking to the Husband as he shaved and so forth.  On several occasions I walked into the bathroom and the Husband would be standing naked, facing [X].  On at least one occasion [X]’s hand or mouth was extremely close to or touching the Husband's genitalia.  On each occasion, the husband would dismiss the situation as “his towel having fallen down” or [X] being “curious”.

3. The mother said in her affidavit sworn on 3 September 2008 that for several months in 2007 [X] would persistently whisper to her, “Daddy hurt me.” The mother said that she eventually decided to listen further to [X]’s comments.  The mother said she asked [X] what the father had done.  The mother said that [X] stated, “Daddy kiss my bum bum there”, while indicating her bed. 

4. The mother said that [X] became distressed at the prospect of the father touching her and became very clingy towards the mother.  The mother said that [X] would smile and pretend to lick the father’s clothed genital region in the mother’s presence.  The mother said that [X] began to say, “Daddy came into the bathroom with his stick” and “Daddy got a tree in my bum”.

5. The mother said that she now accepts that she should have acted sooner and she is seriously distressed that she did not remove [X] earlier from what was clearly a harmful environment.  She said that she simply did not wish to accept that the father could hurt [X] in any way or act in an abusive fashion towards her.

6. In oral evidence the mother said she had seen things such as towels drop when she went into the bathroom.  She said that she did not actually see any of the matters alleged in the notice of child abuse.  However, she said that when she walked into the bathroom, the father’s towel was off, his back was towards the mother and [X] was in the bathroom. 

7. It was put to the mother that she had actually acknowledged to the family report writer, Delma D’Silva, that the father had a towel around him on those occasions when the mother had seen [X]’s face in front of the father’s private parts.  The mother replied that sometimes there would be a towel.

8. The mother said that she did nothing between 2006 and separation on 13 July 2007 to protect [X] except that the mother stayed in the family home.  The mother said that she did not say to the father that he should stop having a shave or shower with [X] in the bathroom.  She said that she just told him that it was not appropriate behaviour.  The mother said that the father replied, “She's just playing, she’s just been playing”. 

9. The mother said that because the father worked from 10.00 am until

   
   10.00 pm

   , the children would have “daddy time” when he was getting ready for work in the morning in the bathroom.  She said the whole family would go into the bathroom to be with him. 

10. On the second day of the hearing, the mother changed her evidence somewhat.  She said that on numerous occasions, [X] would be in the bathroom with her father while he was shaving with a towel on.  She said on these occasions, it was “just normal”.  The mother said that on one occasion the towel was partly off but that it was held up because the father was leaning against the basin. 

11. The mother said that the basin had a cupboard, like a vanity unit, under it.  It was put to the mother that [X] would have to have been in the cupboard for her to have been near the father’s genitals while he was holding up his towel by leaning against the basin and shaving.  The mother replied that the father might have been holding up the towel with his hand.  She said that she did not know for sure.

12. The mother said that [X] went into the bathroom when her father was shaving every day of her own volition.  The mother said that [X] seemed quite happy and there was no crying or anything. 

13. The father was not cross-examined about [X] spending time with him in the bathroom in the mornings.  The father denied that [X] had become very clingy in 2007 and denied that [X] became very distressed at the prospect of the father touching her.  The father denied that [X] had pretended to lick his clothes in the genital area.

The gaping hole

1. In her affidavit sworn on 3 September 2008, the mother said that she awoke on a night in mid-2007 to the sound of [X] screaming from her bedroom, “Daddy stop! Daddy it hurts!”  The mother also said she could hear movement, breathing and either soft words or groaning from [X]’s room.  The mother said that the father then came into the marital bedroom, sat on the bed and said, “Do you think we should go to her?” 

2. The mother said that the father went quickly to [X]’s room and when the mother arrived he was bent over [X].  The mother said [X] was lying on her bed with her arms held above her head and her pyjama pants on the floor.  The mother said [X] was naked from the waist down, greatly distressed and had noticeable redness and irritation in her genital area. 

3. The mother said that she held [X] as she was sobbing.  The mother said that the father left [X]’s bedroom and went back to the marital bed while the mother remained in [X]’s room and slept with her.  The mother said that it appeared that [X]’s genital area was extremely sore and that “there was an indentation on her vagina where pressure of some kind had been applied by an unknown object.” (Emphasis added).

4. The mother explained the appearance of [X]’s vagina on that night quite differently to Dr M who examined [X] on 17 July 2007.  The mother told Dr M that [X]’s vagina was a “gaping hole”, not that there was an indentation on it. 

5. During the mother’s oral evidence, she was reminded that she had told Dr M that [X]’s vagina was a gaping hole.  In her oral evidence, the mother departed from her affidavit evidence, to the extent that she had said there was an indentation in [X]’s vagina, and maintained the gaping hole version.  She said the hole was about the size of a 10 cent piece.

6. The mother told Dr M that [X]’s genitals had always been red, but the mother had always presumed that it was nappy rash until the gaping hole incident.

7. The mother told Dr M that the incident had happened one to three months before the medical examination, that is, between April and June 2007.  The family had their holiday to Queensland in April 2007.  The mother remained with the children in the family home until separation occurred on 13 July 2007.

8. The mother said that she believed that something had penetrated [X]’s vagina although she did not know what it was.  The mother said that [X] at that time wore pull-ups to bed, but she was naked from the waist down on that night.  The mother did not know where the pull-ups went.

9. The mother said that she did not notice any blood on [X]’s bed. When asked whether she noticed any bodily fluids, the mother said that [X] was a little bit wet.  The mother said that she did not know whether the wetness was caused by urine or something else.  The mother did not say that she smelt or otherwise observed seminal fluid.

10. In her evidence given on the next day, the mother said that she believed that something had been put inside [X], not necessarily from a person.  She said that in their house they had wooden sticks such as toy brooms.  She said that they used such a stick to keep the window locked.  The mother said that she thought the father might have used a wooden stick to rape [X].  Alternatively the mother said that she thought the father had used his penis to rape [X].  The mother said that she did not see a stick on the night in question or the following morning.

11. The mother said that she was convinced at that time that [X] had been raped by her father.  She was asked why she did not do anything about it immediately.  The mother said that she now had physical proof in front of her, as opposed to [X] just telling her things.  The mother said it would have been very hard to get out the door and [Y] was asleep. 

12. The mother said that she and the father took [X] to Dr O the following day.  She said that Dr O did not properly examine [X] again, although the mother claimed that she told Dr O that he needed to examine her.  The mother said that [X] just sat on her father’s lap and she was not undressed.  The mother said that Dr O said that [X] was fine and she just had a rash.  The mother said that she did not tell Dr O about the gaping hole because he was the family doctor and she did not want to accuse the father.  Dr O’s notes were not tendered in evidence and Dr O was not called to give evidence.  (It may be that the mother has confused an earlier visit to Dr O with this visit.  However, her evidence was as described.)

13. The father said that when [X] woke in the night, she would call, “Mummy, Daddy.” He said the mother had never asked him to explain why [X] had said “Daddy hurt me.”

14. The father said that [X] had nightmares a couple of times a month during 2007 and that they had not changed in frequency.  He said that the mother slept with [X] about once a month, usually after [X] had had a nightmare.

15. The father said he and the mother had gone into [X]’s bedroom together many times in the night when she was calling out.  He said that he did not recollect a night in mid-2007 when [X] woke screaming saying, “Daddy stop. Daddy it hurts.”  He said that he did not recollect an occasion when the parents both went into [X]'s bedroom and she was naked from the waist down.  He said such an event did not occur.  He said sometimes [X] would have her top off but she would always have her nappy on.

16. It was put to the father that he had told Ms D’Silva that he did recall the night when [X] was screaming.  He told Ms D’Silva that he was shaving when he heard [X]’s screams, he went into her bedroom and the mother was already there.  He said there were many nights when she screamed.  He repeated that there was not a night when [X] woke up screaming naked from the waist down.  The father said that he did not recall an occasion when the mother followed him into the lounge room asking for an explanation about what had happened to [X].  He said that he thought the mother was “creating it.”

The rocking bed

1. The mother said in her affidavit sworn on 3 September 2008 that, on another occasion, shortly after the gaping hole incident, the mother woke at 4.00 am to find the bed rocking noticeably from the father’s side of the bed. The mother said when the movement stopped, she heard a child climb from the bed and walk out of the room.

2. The mother said that after that night, she was extremely vigilant and did not allow any significant interactions between [X] and her father.  She said she built up the courage shortly afterwards in June 2007 to separate from the father.  She said she separated from the father on

   
   13 July 2007

   and telephoned the Centre Against Sexual Assault (“CASA”) and the [omitted] Police.

3. The mother said in cross-examination that she did not see a child walk out of the room.  She said that she did not want to look.  She said that she did not realise [X] was there until she climbed out of the bed.

4. The mother was asked what she did to protect her daughter.  The mother said she stayed in bed and she could not sleep.  She said that she decided that she had to leave.  She was asked whether she examined her daughter the following day.  She said she could not remember now what she did.  She said that she had not taken her daughter to a doctor to see whether she had been sexually abused.

5. The mother was asked whether she went to DHS or the police or a doctor or a counsellor in the following days.  The mother said that was when she made the telephone call to CASA.  It was put to the mother that she had said that the gaping hole incident was two or three months before separation and the rocking bed incident was shortly after the gaping hole incident.  It was put to the mother that the rocking bed incident was months before separation and the mother’s telephone call to CASA, which happened on 13 July 2007.  The mother said that she honestly had no idea about how long ago things were.

6. It was put to the mother that she was saying, in relation to the rocking bed incident, that the father had [X] in bed and was having sex with her.  The mother said, “When did I say that, having sex with her?” She was then asked if she believed that the husband was doing something sexually inappropriate with her daughter in bed.  The mother said that she had woken up to the father rocking and [X] hopped down.

7. The mother was asked why she did not leave the father that night.  She said that she could not explain it.  She said that she had seen something now and really had to believe [X] but it was hard to grasp. 

8. The mother was asked what happened that enabled her to ring CASA a month or two later.  She said that the father knew that she knew so he would not do it again.  The mother was asked again what happened between the bed rocking incident and 13 July 2007 when she rang CASA.  She said that she knew he was going to do it again.

9. The mother was asked what exactly she thought was happening during the bed rocking incident.  The mother said that maybe he was rubbing on her.  The mother was asked whether it seemed odd to her that after the bed stopped rocking, [X] just hopped up and left the room without anyone saying a word.  The mother replied that she knew that father was going to keep doing it.

10. It was put to the mother that she had done nothing in response to the bed rocking incident.  The mother replied, “Well, I knew I had to stay in bed until it was the morning.  You know, he’s not going to admit it.” It was put to the mother that she had done nothing for some weeks.  She claimed that she rang CASA the next day.  That evidence is inconsistent with the mother’s own affidavit sworn on

    
    3 September 2008

    .

11. The father denied that there was an incident when he was in bed with the mother and [X] and the bed was gently rocking.  The father denied that he had interfered with [X].

Separation and the first report to the police

1. The mother agreed in cross-examination that she did not make any allegation to anyone that the father had sexually abused [X] until the day of separation.

2. The mother reported her concerns to CASA on 13 July 2007, being the day of separation, and, on their advice, to the police. [X] was interviewed by the police on or about 13 July 2007.  [X] was then three years and three months old.  The mother said that she was not advised that [X] made any disclosures in the interview with the police.

3. [X] was medically examined by Dr M on 16 July 2007.  The mother and [X] also attended Dr M on 24 July 2007.  The mother said in her affidavit sworn on 3 September 2008 that she had not seen any notes or a report of the examination conducted by Dr M.  The doctor’s notes were marked for identification but were not tendered. 

4. The mother said that [X] told Dr M in the mother’s presence that “Daddy hurt me in the bath” and “Daddy smacks my bum”.

5. The mother said in her affidavit sworn on 3 September 2008 that she understood that Dr M’s examination found inflammation in [X]’s vagina and that Dr M could not find [X]’s hymen.  The mother went on to say in her affidavit sworn on 3 September 2008 that the physical examination of [X] did not produce any conclusive evidence of sexual abuse.

6. The mother’s claim that she understood that Dr M could not find [X]’s hymen is inconsistent with the mother’s own evidence, set out below, that in September 2007 she took [X] to another medical specialist to see if [X]’s hymen was intact.  That examination was also inconclusive.

7. The mother said in her affidavit sworn on 3 September 2008 that the police concluded their brief investigation of the allegations made on

   
   13 July 2007

   without charges being laid against the father.  The mother did not say exactly when the police investigation was concluded, but it seems to be implicit in her evidence that the investigation was concluded in about September 2007.  The mother said that she understood that the reason for no charges being laid against the father was primarily due to a lack of conclusive evidence from the physical examination of [X] conducted by Dr M.  The mother’s evidence on this point was not challenged and I accept it.

8. The mother suggested in her affidavit sworn on 3 September 2008 that the police investigation had been compromised because the father has several relatives who are members of Victoria Police.  The mother implied that the police investigation had been inadequate as a result of the father’s family connections.  However, this issue was not pressed by the mother’s counsel during the hearing or in submissions.  In particular, the mother’s counsel did not cross-examine the father or his sister about it.  I take it no further.

The recommendations that the mother attend counselling

1. In oral evidence, the mother did not disagree with a passage that was read to her from Dr M’s report, which said that, “I have given

   
   

   Ms Milbury details of a psychologist Ms O for her own needs.”  The mother initially agreed that she had not attended psychological counselling for her own needs.  She claimed that she understood that Dr M had urged her to attend marriage counselling, which the mother considered to be an outrageous suggestion in the circumstances.  The mother agreed in cross-examination that the family report writer had told her that Dr M had said that the mother should seek counselling. 

2. The mother agreed in cross-examination that Dr E had recommended that the mother seek psychological assistance for herself in April 2008.  Dr E said in his psychiatric assessment of the mother dated 30 April 2008 that:

   … she remains a troubled woman who is unsure as to whether she has done the right thing.  It is apparent that she requires psychological assistance with regard to this struggle and should be referred to a Psychologist in order to receive such assistance.  It should be made known to her that this does not necessarily reflect a psychiatric illness on her behalf, but rather the treatment should be aimed at assisting her to come to terms with the issues as she has experienced them.

3. The mother claimed that she was now going to counselling at Eastern Access Community Health (“EACH”) in Ringwood.  The mother said that in July 2008 she began seeing a counsellor called Sandy whose family name she did not know.  The mother said that [X] was seeing Ms R for counselling and the mother was seeing Sandy.  Although requested to do so, the mother did not produce any documentary records of any counselling.  The mother did not mention that she was having any counselling in her affidavit sworn on 3 September 2008. 

4. Ms D’Silva noted at paragraph 17 of her report dated

   
   3 September 2008

   that in the interview with the mother on 25 August 2008, the mother said that:

   … both she and [X] are attending counselling with Ms. Ms R, a counselor at the Eastern Victim’s Assistance and Counselling Program.

5. Contrary to that, the mother said that she told the family report writer that she was receiving counselling from Sandy and [X] was receiving counselling from Ms R.

6. The mother said that she did not begin counselling before July 2008 because she was “trying to live life and work and pay bills”.  The mother agreed that she did not begin counselling until after the contravention application was issued on 20 June 2008.

7. Ms R gave evidence that the mother was receiving counselling for herself at EACH, but through another counsellor.

[X]’s second medical examination

1. The mother arranged for [X] to be examined by another doctor, Dr C, in about September 2007.  The mother said in cross- examination that she arranged the further medical examination because she wanted to know whether [X]’s hymen was intact or not.  The mother said that

   
   

   Dr C told her that his medical examination of [X] was inconclusive. 

The children’s initial living arrangements after separation

1. After separation on 13 July 2007, [X] and [Y] lived with their mother.  They initially saw their father at the maternal grandfather’s house about once a week under the supervision of the maternal grandfather.  Interim orders were made by consent on 12 November 2007 whereby the children were to spend each Sunday from 11.00 am until 4.00 pm with their father under the supervision of Mr R or Ms R.  On 5 December 2007, interim orders were made by consent adding the paternal grandparents, Mr M and Ms L, as alternative supervisors.  The father’s interim application for overnight time was dismissed.

The first family report

1. Delma D’Silva provided a family report dated 15 January 2008.  Neither party sought to cross-examine Ms D’Silva.  I accept her evidence.  I understand that the mother would have received a copy of Ms D’Silva’s report in late January or early February 2008.  The mother acknowledged in oral evidence that she had read the report. 

   
   

   Ms D’Silva noted in paragraph 11 of her report that the issue in dispute was whether the time spent by [X] and [Y] with their father should be supervised or unsupervised.

2. Ms D’Silva noted in paragraph 6 of her report that the Department of Human Services (“DHS”) had thoroughly investigated the allegations of sexual abuse and had provided their findings in early November 2006.  (Presumably, Ms D’Silva meant 2007).  Ms D’Silva reported that DHS was unable to substantiate the allegations of sexual abuse of [X] by her father. 

3. Ms D’Silva noted in paragraph 14 of her report that both the mother and the father had had a forensic sexual psychological assessment conducted by Mr S.  Mr S’ assessments were not tendered to the court.   I accept Ms D’Silva’s summary of them.  Mr S concluded that the father did not pose a risk of sexually offending against his children and did not display deviant sexual arousal patterns.  Mr S concluded that the mother had a genuine belief that the father had offended against [X] and did not find any clear evidence that the mother had a psychological disorder.  Mr S recommended a psychiatric evaluation of the mother if her concerns about sexual abuse of [X] persisted following an unsubstantiated finding by DHS. 

4. Ms D’Silva said that the mother “presented as an emotionally fragile woman during the interview” for the family report.  Ms D’Silva said that the father “impressed as a pleasant man who participated cooperatively with the report interview.”

5. Ms D’Silva observed that [X] appeared anxious and displayed a high level of separation anxiety when her mother left the room but then settled down. Ms D’Silva observed:

   52.Mr. Milbury sat on the floor with the children after they had eaten their meal and invited them to play.  [X] joined her father and [Y] on the floor to play with them.  She showed her father a doll’s house inside the playroom and invited her father to play with her.  She later took photos of [Y] and her father using a play camera.  When [Y] was involved in rough and tumble play with her father, [X] joined in their play and climbed over her father.  During this physically interactive game between the children and Mr. Milbury, the writer did not observe any signs of anxiety in [X].  She spontaneously said to her father, “I love you daddy”.

   53.The observations of the children’s relationship with

   
   

   Mr. Milbury were conducted over a duration of at least an hour. The writer did not observe any inappropriate interactions between Mr. Milbury and the children. He engaged in age appropriate play and conversation with the children.  He also appeared more confident in establishing limits, particularly with [Y] who responded well when his father instructed him not to throw things.  [Y] appeared less disruptive with Mr. Milbury than with Ms. Milbury.

   54.The writer did not observe any overt tensions between the parents when they were in the playroom together.  When the observations were concluded, Mr. Milbury accompanied

   
   

   Ms. Milbury and the children to their case as it was raining outside.

   EVALUATION

   55.This is a difficult case, made more difficult by the fact that the findings of DHS have not brought closure for

   
   

   Ms. Milbury.  DHS conducted extensive investigations which included a forensic medical assessment of [X] by the Gatehouse team and individual forensic psychological assessments of the parents.  Although the medical findings were inconclusive, the individual forensic psychological assessment of Mr. Milbury concluded that Mr. Milbury does not pose a risk of sexually offending against his children.

   56.During her interview Ms. Milbury wavered between disbelieving that Mr. Milbury could abuse his children and at other times being certain that [X] had been sexually abused by Mr. Milbury.  The catalyst for her suspicions was a phone call she received from Mr. Milbury’s stepmother in late 2005 when she was in hospital.  Following her discharge from hospital she allegedly witnessed incidents and behavioral changes in [X] which she attributed as confirmation of abuse.  It is probably that some of the behavioral changes Ms. Milbury observed in [X] might have been [X]’s responses to having been separated from

   
   

   Ms. Milbury during her hospitalization.  [X] was about 18 months old when Ms. Milbury was hospitalized and developmentally this is a stage when children could experience high levels of separation anxiety when they are separated from their primary attachment figure.  Her reactions may have been compounded following

   
   

   Ms. Milbury’s return home if [X] was picking up on her mother’s anxiety that sexual abuse had occurred.

   57.[X] impressed as an emotionally sensitive 3 year old child. During the report [X] appeared to be keenly aware of her mother’s distress and became very clingy towards her mother.  As a very young child, she lacks the language skills to express her feelings of confusion and anxiety and likely to act out through her behaviours.  [X] also displayed a high level of separation anxiety when her mother left the room. Her piercing cry and distress when she ran after her mother was painful to witness.

   58.When observed with his mother, [Y] displayed disruptive behaviours and was probably displaying his confusion and frustration by acting out.  He threw toys in the playroom and was also observed to hit his mother.  Ms. Milbury appeared limited in her ability to offer containment for [Y] and to set limits with him.

   59.The writer observed that Mr. Milbury interacted lovingly with the children and the observations did not give rise to concerns about the father-daughter relationship.  [X] did not display anxiety in the company of her father and appeared to spontaneously express her love for him.  [Y] appeared more settled with Mr. Milbury, than with

   
   

   Ms. Milbury perhaps, because he was picking up his mother’s anxiety when he was with her.  Mr. Milbury displayed confidence in setting limits with [Y].  He also tried to distract [X] with play activities when she appeared anxious about her mother leaving the room.

   …

   62.Ms. Milbury impressed as a loving mother who has tried to care for her children and protect them to the best of her ability.  She did not impress as a woman who is vindictive or who had deliberately fabricated the allegations of abuse. However, the writer has concerns that her lack of a clear resolution of the abuse allegations may impact on her capacity to promote a positive and meaningful relationship between the children and Mr. Milbury.  Unwittingly she may transmit negative messages to the children that it is unsafe for them to be with their father which may confuse them and psychologically harm them.  It is difficult to know whether Ms. Milbury’s fixation with child sexual abuse may have its origins in her own childhood experiences.  The problem of differentiating actual molestation from fantasized abuse is an extremely complex one and for this reason the writer considers that a psychiatric evaluation of Ms. Milbury may be useful.

1. The father proposed that [X] and [Y] live with him, as he was concerned about the impact of the mother’s psychological state on the children.  However, Ms D’Silva recommended that [X] and [Y] live with their mother, saying that:

   63.In weighing the risks for the children, the writer considers that there is a lower risk of harm to the children from living with their mother, than from living away from her. The writer also has concern that Ms. Milbury’s psychological well-being could be seriously jeopardized if the children live with Mr. Milbury (as proposed by Mr. Milbury) and this could have negative impacts on the children. [X] was observed to experience a very high level of separation anxiety during the report observations. She is still very young and likely to experience significant anxiety if she is separated from her mother for extended periods. The history indicates that Ms. Milbury has been the children’s primary caregiver prior to and since separation. In addition, her part-time employment status makes her more available to care for the children than Mr. Milbury. For all these reasons, the writer recommends that the children continue to live with Ms. Milbury.

2. Ms D’Silva recommended that [X] and [Y] spend alternate weekends with their father unsupervised and said:

   64.Having due regard for the findings of DHS, the writer recommends unsupervised visits between Mr. Milbury and the children. Supervised visits are restrictive and diminish the opportunity for the children to maintain a meaningful relationship with their father. Supervised visits may also reinforce any negative messages that Ms. Milbury may be unwittingly giving the children that it is unsafe for them to be with their father. It is important that the adults in the paternal and maternal families refrain from questioning the children about the past allegations as it could perpetuate the children’s sense of confusion over the allegations.

   65.The writer supports the children maintaining a regular and meaningful relationship with Mr. Milbury. As Mr. Milbury works 5 days a week it is recommended that visits occur between Mr. Milbury and the children occurs (sic) on alternate weekends and for a few hours mid-week in the intervening week. The writer recommends that significant and substantial time between Mr. Milbury and the children should be deferred to give the children time to settle. The children are adjusting to their parents’ recent separation and have also experienced tremendous confusion over the sexual abuse allegations. Their sense of safety with

   
   

   Mr. Milbury has probably been severely shaken due to the abuse allegations. Once the children have commenced school they would be developmentally more capable of adjusting to longer periods of time away from their mother. They would also have the language skills to express any fears or confusion they experience.

The orders of 27 February 2008

1. On 27 February 2008, interim orders were made, not by consent, for [X] and [Y] to spend time with their father:

   a)from 4.00 pm each Saturday until 4.00 pm each Sunday for a period of 12 weeks; and

   b)thereafter, from 11.00 am each Saturday until 4.00 pm each Sunday.

   For the first eight weeks, to give some reassurance to the mother, one of the previously named supervisors or Ms M or Mr V, were to be in substantial attendance between 8.00 pm on the Saturday and

   
   7.00 am

   on the Sunday.  The period of supervision ended on

   
   20 April 2008

   .

Dr E’s psychiatric report

1. On 29 April 2008, the mother attended Dr E, consultant psychiatrist, for the purposes of a psychiatric assessment.  Dr E provided a report dated 30 April 2008 to the independent children’s lawyer.  Dr E reported that the mother was in a dilemma about whether the father had actually abused [X] or not.  Dr E said of  the mother that:

   She was quite anxious.  She had a somewhat frenetic and confused approach to the interview, making various comments about the room and generally wishing to convey the impression that all was well.  This contrasted with her degree of emotional distress, anxiety and a clear sense of emotional confusion.  She made reasonable eye contact and at times there was a somewhat pleading quality about her communication in reference to the dual requirements of on the one hand, protecting her child from sexual abuse, and on the other, ensuring that the relationship between daughter and father continued.

   …

   Throughout her account, Ms Milbury was visibly distressed.  She continued to describe the confusing nature of this and was clearly tormented by these various experiences.  She was searching for the truth but her search was to no avail.  In the end, she remains unresolved in her mind.  This causes her considerable disquiet.  She continues to struggle with these matters whilst she has no-one to talk to them about (sic). 

   Her presentation was that of a vulnerable young woman who has clearly struggled at an emotional level with dual concerns, on the one hand not wishing to break up the family, and on the other, wishing to protect her daughter.  Her mind is split and the matter is unresolved.  Her distress was palpable throughout the interview.

2. Dr E proffered the following diagnosis:

   Ms Milbury is a woman with certain vulnerability to her personality related to her childhood experiences.  Her condition throughout the time of the difficulties following the birth of [Y] and her struggles with issues in regard to possible abuse of her daughter by her husband would be consistent with an adjustment disorder with anxious mood.  Her condition has settled somewhat with the elapse of time and the fact that [X] appears to be more settled, and contact is ensuing.

3. The reference to the mother’s childhood experiences was a reference to her own parents’ separation, the mother feeling somewhat unloved by her own mother and the mother thinking that she might have been abused by her step-brother’s friend when she was about 10 years old. In conclusion, Dr E said:

   Ms Milbury impressed as a vulnerable woman operating at an emotional level younger than her chronological years.  Whilst at all times she impressed as utterly genuine, she gave a somewhat confused and confusing account of her experiences.

   …

   With the elapse of time and ensuing contact, her concerns about the situation are less intense.  Even so, she remains a troubled woman who is unsure as to whether she has done the right thing.  It is apparent that she requires psychological assistance with regard to this struggle and should be referred to a Psychologist in order to receive such assistance.  It should be made known to her that this does not necessarily reflect a psychiatric illness on her behalf, but rather the treatment should be aimed at assisting her to come to terms with the issues as she has experienced them.

   Ms Milbury does not present with a psychiatric condition which would render [her] at risk to her children.  She impressed at all times as wishing to do the right thing and did not impress as vindictive.  Her comment about the fact that she did not hate her husband was a demonstration of this.  She continues to struggle with the very divided experience in her mind in regard to the issues.

4. [X] and [Y] spent time with their father in accordance with the orders made on 27 February 2008 until 31 May 2008.  The period of supervision ended on 20 April 2008.  [X] and [Y] were due to spend time with their father on 7 June 2008.

“Daddy’s putting his fingers in my fanny”

1. In her affidavits sworn on 30 July 2008 and 3 September 2008, the mother said that in April 2008, [X] told her that the father was using his fingers to touch her genitals and [X] and [Y] were sleeping in the same bed as the father.  The mother said that [X] had also told her that the father kissed her with his tongue. 

2. The mother said that for several visits after April, [X] did not seem particularly distressed by her time with the father.  However, the mother said that in late May 2008, [X] told the mother that the father “puts his fingers in my fanny”, “keeps tongue-kissing me” and called [X] a “dirty bitch”.  The mother also said that [X] was showing many symptoms of stress and wet the bed on a number of occasions. 

3. In cross-examination, the mother said that [X] first began to say that “Daddy’s hurting me” and “Daddy’s putting his fingers in my fanny” about two or three weeks before she went to the police on

   
   6 June 2008

   .  The mother said that [X] was saying these things repeatedly week after week.  The mother said that she did not examine [X] herself or take her to a doctor.  The mother said that she did not refer the matter to the police when [X] first began to say these things.  The mother said that when [X] first said these things she just thought, “kids say things”. 

4. The mother said that she believed [X] the first time she said these things, but that she had to know for sure.  When asked what had happened to enable the mother to know for sure she said that “I had to hope that it wasn’t true” and “It was very hard.”  The mother was very distressed and tearful while giving evidence, particularly at this stage.

5. When asked why the mother had not turned to professionals to get to the bottom of the matter when [X] made these statements, the mother said, “But you’ve got to remember I already know he is capable.”  When asked what she had seen that led her to believe the father was capable, the mother said, “My daughter telling me.” 

6. When asked whether the father had a criminal history of paedophilia or sexual molestation with children, the mother said she did not know.  When it was put to her that it was easy to check with a police search, the mother said, “That’s not my concern.” The mother agreed that she had called the father a paedophile in front of [X], and said she was sorry for it but doubted that [X] had heard her.

7. The mother said that she said to [X], in response to her statements that the father was hurting her, “Nonno and Nonna are there, darling” and [X] replied, “They can’t protect me.”

8. The mother said that when she went to the police on 6 June 2008 it was because [X] had a different demeanour and was not just saying that the father was hurting her.  The mother said that [X] had once told her that the father had hurt her without saying anything about him putting his fingers in her fanny.  The mother said that on that occasion, [X] “was kind of like smiling”.  The mother said that she dismissed [X]’s statement on that occasion, which happened more than two or three weeks before 6 June 2008.

9. The mother said that [X] used to be happy to go to see her father because there were “always parties and cousins and stuff”.  However, [X] then began to refuse to go to see her father and would have a solemn face.  The mother said that while she was taking [X] to see her father, [X] would say that the father was hurting her and putting his fingers in her fanny.  The mother said that on her return [X] would be very quiet and sombre. 

10. The mother said that on the second last occasion when [X] had seen her father she had not complained afterwards about her father and had actually been quite happy to see him.  The mother agreed that two or three weeks had gone by between [X]’s first complaint and the second. 

11. The mother said that the last time that [X] had said that the father was putting his fingers in her fanny was the day before the mother went to the police on 6 June 2008.  The mother said that [X] was a little bit hysterical and said “You can’t protect me” and “Nonno can’t protect me.”

12. The mother said that what convinced her that [X] was telling the truth was that she refused to get in the car.  It was unclear when the mother meant [X] refused to get in the car.  The mother went to the police on Friday 6 June 2008 and [X] was not due to see the father again until

    
    7 June 2008

    .

13. The mother said in cross-examination that her affidavits had been wrong when they said that [X] had first told her about using his fingers to touch her genitals in April 2008.  The mother confirmed that [X] had first mentioned these matters to her two or three weeks before 6 June 2008.  The mother agreed that she had also got the timing wrong in her affidavits when she said that [X] had made more detailed and graphic statements in late May 2008.

14. The mother was asked what detailed and graphic statements [X] had made.  She said she did not remember them.  The mother gave this evidence on 9 September 2008.  The events she was attempting to describe happened about four months earlier.  Her affidavit sworn on

    
    3 September 2008

    was sworn six days before her oral evidence was given.  The mother said that she remembered what the detailed and graphic statements were when she swore the affidavit on 3 September 2008 but she could not remember what the detailed and graphic statements were when she was giving oral evidence on 9 September 2008.

15. The mother said that [X] told her that daddy had put his fingers in her fanny at Nonno’s house when he was changing [Y]’s nappy.  The mother was asked if she thought it was plausible that the father could have digitally raped [X] while changing [Y]’s nappy.  The mother said that she could not explain it, and [X] had no animation in her face.

16. The mother was asked why she did not go to the police as soon as [X] told her that she had been digitally raped by her father.  The mother said it was a difficult situation and she was not going to jump on it.

17. The father denied ever kissing [X] with his tongue, denied putting his fingers in her fanny and denied calling her a dirty bitch.

The second report to the police

1. On 6 June 2008, the mother reported to the police that [X] had been sexually abused by her father. 

2. On 6 June 2008, the mother’s solicitors sent a facsimile to the father’s solicitors saying, among other things, that [X] had made detailed statements to the mother regarding criminal conduct on the part of the father.  The solicitors said that the mother had referred the matter to Victoria Police who were currently conducting an investigation.  The solicitors said that it would not be possible for the children to spend time with their father on 7 June 2008.

3. The mother made a statement to the police on 7 June 2008, which is exhibited to her affidavit sworn on 30 July 2008.  Among other things, the mother said that [X] had told her in recent times that she would not go to her grandfather’s house because “that is where Daddy hurts me”.  The mother also said in her police statement that [X] had told her repeatedly in recent times that “Daddy put his fingers in my fanny”. 

The VATE tape

1. [X] was interviewed by the Sexual Offences and Child Abuse Unit between 8.50 am and 9.02 am on 7 June 2008.  The mother said in an affidavit sworn on 30 July 2008 that she had not been permitted to view the video tape of [X]’s interview.  However, the mother sat in on the last few minutes of [X]’s interview.  During that time, [X] made no disclosures.

2. The tape of [X]’s interview with the police on 7 June 2008 was played to the court without objection.  In the police interview, [X] said that she did not know the difference between truth and lies.  She said that she knew why she had come in to talk to the policewoman.  [X] said it was because daddy hurt her.  The policewoman asked [X] to tell her everything that had happened.  [X] said, “I can’t.”

3. The policewoman asked [X] when she sees her father.  She said Monday and Tuesday.  The policewoman asked [X] how daddy hurt her.  [X] said, “With his fingers.”  The policewoman asked [X] what daddy did with his fingers.  [X] said, “He put them in my fanny.”  The policewoman asked [X] where her fanny is.  [X] pointed to her vaginal area.

4. [X] said that [Y] was at their mother’s house when the abuse happened.  She said it happened at night time. [X] said she sleeps in the father’s bed as does the father and [Y].  [X] said she could not tell the policewoman about when her father put his fingers in her fanny.  She said that was because she did not want to talk about her father.  She said that was because he hurt her.

5. [X] then said that she needed to go to the toilet.  The interview was suspended for a few minutes.  When [X] and the policewoman returned, the mother was with them.  [X] would not sit in the armchair near the microphone by herself and sat in another armchair on her mother’s lap.  After a few minutes of trying to persuade [X] to sit in the armchair nearest to the microphone, the mother sat in the appropriate armchair with [X] on her lap.

6. [X] was asked when the things she had said about daddy had happened.  She said she did not know.  [X] said there was nothing else she wanted to tell the policewoman.

The alleged advice given by the police

1. The mother said in her affidavit sworn on 3 September 2008 that the police gave her certain advice.  The father’s counsel foreshadowed in opening that he would be objecting to that evidence and in the alternative would call evidence to contradict the mother’s claim about the advice the police had given her.  It does not appear that the objection was formally made.

2. However, the mother’s counsel apparently proceeded on the basis that the objection was made and should have been upheld, or that the father could have adduced evidence to successfully contradict the mother’s claims on this point.  One way or another, the mother’s counsel did not seek to rely on the advice that the mother claimed the police gave her.  In the circumstances, I consider that it would be appropriate to proceed in accordance with the basis on which the case was run by the parties.  That is, I consider that I should not take into account the advice that the mother said the police gave her.

The father’s response

1. The father’s solicitor by letter dated 6 June 2008 required compliance with the current court orders and said he would attend to collect the children in accordance with the terms of the orders.  He also said that any non-compliance with the orders would result in a contravention application being filed.

2. The father’s solicitor the following week told the mother’s solicitor that the father wished to spend time with [Y] at least on the weekend of
   14 June 2008.  The mother’s solicitor replied by letter dated 13 June 2008 refusing that request.

[X]’s third forensic examination

1. It seems that [X] underwent a third medical examination, this time by a Professor W at the Monash Medical Centre on 6 June 2008.  The mother said in her affidavit sworn on 30 July 2008 that, “My understanding is that the Professor’s examination rendered an inconclusive result.”  However, the mother did not say in her affidavit when she learned that the result of Professor W’ examination was inconclusive.  I infer that the mother would have learned of the results of the examination on or shortly after 6 June 2008.

The conclusions of the police

1. It was common ground that the police had concluded their investigations before the contravention application was heard and had decided not to lay any charges against the father.  However, it is not clear when the mother was informed of the conclusions of the police.  I infer that the police did not inform the mother of their conclusions until after 14 June 2008.

Ms R’s evidence

1. In her affidavit sworn on 30 July 2008, the mother said that [X] had been attending counselling at the EACH program since early June 2008.  The mother said that she had been advised by the counsellor,

   
   

   Ms R, that [X] had made disclosures to her that she had been sexually abused by her father.

2. However Ms R’s own affidavit sworn on 30 July 2008 said that she began counselling [X] in July 2008, rather than early June 2008.

   
   

   Ms R’s notes indicate that she had an introductory history-taking session with the mother on 3 July 2008, a rapport building session with [X] on 4 July 2008 and saw [X] again on 17 July 2008.  I accept

   
   

   Ms R’s evidence about the timing of her dealings with [X].  Accordingly, anything [X] said to Ms R, and anything Ms R passed on to the mother, was communicated after the contraventions on 7 and 14 June 2008. 

1. As such, Ms R’s evidence is of limited utility in ascertaining whether the mother had a reasonable belief that [X] had been sexually abused by her father at the time that the mother contravened the orders on

   
   

   7 and 14 June 2008.  However, a disclosure made by [X] to Ms R would tend to support the mother’s claim that [X] had previously made disclosures to her.

2. In her affidavit sworn on 30 July 2008 and filed on 13 August 2008, Ms R said that she had seen [X] on two occasions.  The first was a rapport building session.  Ms R said that during both counselling sessions, [X] had said that her father had “hurt her”.  Ms R said that [X] had clearly explained that she did not want to see her father because he was “nasty” to her.  Ms R said that on one occasion [X] clearly pointed to her vaginal area and said that her father had hurt her there with his fingers while she was at Nonno’s house.  Ms R said she had “grave professional concerns about [X] spending time with her father especially on an unsupervised basis.”

3. In oral evidence, Ms R explained that she had seen [X] six times by the time of the hearing.  Ms R said that she asked [X] how many times her father had hurt her with his fingers in her vagina or area and [X] said that it had happened once.  Ms R said that [X] had not said when that event happened. 

4. Ms R said that she asked [X], “Do you remember the night when mummy came in because you were calling her because daddy hurt you?” (This was the gaping hole incident in about May 2007 when [X] was just over three years old.)  [X] said that she did remember that incident.  Ms R said that she asked [X], “Can you tell me what happened that night?” and [X] said, “No, daddy told me to keep it a secret.”  Ms R asked “Can we talk about it?” and [X] said, “No, I don't want to talk about it any more.”  Ms R said she left it at that. 

5. Ms R said that she asked [X] a number of times if she wanted to see her father, and [X] always said that she did not because he hurts her and he is nasty. 

6. Ms R said that she had asked [X] to put Band-Aids on a drawing of a person in the places where her father had hurt her.  [X] put one Band-Aid in the groin area and one on the wrist.  When asked about the hurt to her hand, [X] said, “Daddy grabbed me by the hand.”

7. Ms R said that her role was not necessarily to get disclosures but to support recovery by looking at whether there are issues with self-esteem or anxiety and providing strategies.

8. In cross-examination, Ms R was asked if she had seen the second family report of Ms D’Silva, dated 3 September 2008.  Ms R said that she had not.  She was then asked to read from paragraph 51 of that report until the end and did so in the witness box.  Those paragraphs read as follows:

   51.When Mr. Milbury entered the writer’s office [Y] appeared delighted to see his father and readily approached his father who hugged and kissed him affectionately.  The writer observed that although [X] did not display anxiety or fear when she saw her father, she remained seated beside her mother.  Mr. Milbury asked [X] what she was playing with and she replied, “fishing”.  Mr. Milbury said to her, “Nonno says hello to you”. Mr. Milbury sat on the floor next to [Y] and engaged in conversation with the children and observed their play interactions.  [X] looked at her father’s shoes and asked him questions about his shoes. When [X] appeared to be relaxed around her father, the writer requested

   
   

   Ms. Milbury to move out of the playroom and sit inside the writer’s office where the children could see her and she could see them.

   52.After Ms. Milbury moved away, [X] began to interact more spontaneously with her father without prompting from him.  She attempted to get him a chair to sit on.  When she noticed her father’s bag on the chair, she pulled the bag down before trying to move the chair towards her father.  Mr. Milbury thanked [X] and stated that he was happy to sit on the floor. [X] began conversing with her father and asked him, “where is your car?” Mr. Milbury informed her that his car was parked outside. He said, “daddy likes to have the heater on in his car doesn’t he” and [X] responded, “and me too”. The writer observed a degree of comfort, warmth and spontaneity in the interactions between [X] and her father.

   53.Mr. Milbury offered the children snacks and drinks that he had brought for them. Both children sat right next to their father and ate the sandwiches he brought them.  [Y] picked out the fillings of salami and cheese inside the sandwich and ate them.  Ms. Milbury commented that the children love salami.

   54.[X] conversed with her father while eating her sandwich.  After eating her sandwich, [X] saw a wrap inside her father’s bag and asked him about it.  Mr. Milbury informed her that he had prepared a wrap for his lunch. He asked her if she wished to try it and she nodded to indicate she wished to try the wrap.  Ms. Milbury stated to [X], “[X], you can’t do that… that’s dad’s lunch”. Mr. Milbury ignored

   
   

   Ms. Milbury’s comments and opened up the wrap and offered it to [X]. [X] asked her father questions about how the wrap had been prepared while she was eating the wrap.  Later Mr. Milbury offered the children gave the children (sic) a piece of nougat each and a biscuit each.  The biscuit had coloured smarties on them and the children happily picked out the smarties and conversed with their father about the colours.

   55.Later [X] sat beside her father and involved him in conversation while she did a drawing on a whiteboard.  She appeared relaxed and comfortable with her father.  Later the children wanted to play with toy cars and they took turns to roll a toy car to each other with assistance from their father.  At first [Y] sat on his father’s lap and his father assisted him to roll the car to [X].  Then [X] went over to her father and asked to sit on his lap and she rolled the car to [Y].  At one point in the observations, [Y] spontaneously went to his father and hugged him and his father hugged and kissed him in return.

   56.Ms. Milbury observed the interactions between the children and Mr. Milbury and from time to time she attempted to engage Mr. Milbury in conversation.  However, Mr. Milbury did not respond to her communication.

   57.When the observations were concluded the writer informed Ms. Milbury that she could leave with the children.  When Mr. Milbury said goodbye to the children, [Y] started to become anxious about leaving his father.  He went to his father and held his band and said he wanted him to go along with them.  He also grabbed his father’s bag and asked his father to take his bag with him.  It seemed to the writer that [Y] wanted to leave with his father.  Mr. Milbury stated that he would accompany the children to their car.  Ms. Milbury did not raise objections to Mr. Milbury accompanying her and the children.  Mr. Milbury lifted [Y] and carried him with his bag and accompanied Ms. Milbury and [X] towards the front of the building.  Mr. C was in the waiting area and when he saw [Y] in Mr. Milbury’s arms he tried to take [Y] from his father, but [Y] refused to go to him and became distressed when Mr. C persisted.  The writer observed tension between Mr. C and Mr. Milbury which may have fuelled [Y]’s distress.  Mr. C stated to Mr. Milbury it would be best for him to leave quickly but Mr. Milbury insisted on taking [Y] to the car.  He carried [Y] to the car and placed him inside the child’s car seat and kissed him goodbye.  Then he went over to the other side where [X] was seated, opened the door and kissed her goodbye before leaving the car.

   EVALUATION

   58.In child sexual abuse cases it is difficult to establish conclusively whether abuse has or has not occurred, particularly in the absence of corroborating medical evidence.  The focus in these cases needs to be upon the probability of abuse having occurred rather than on conclusive evidence.  In more probable allegations of sexual abuse, the child can be seen to be either actively avoidant of the perpetrator or passively compliant in a manner that lacks spontaneity and warmth.  During the observations of the children with Mr. Milbury, the writer observed a degree of comfort, warmth and spontaneity between [X] and the father which suggests that it less probable that abuse has occurred.

   59.The investigation of allegations of sexual abuse requires particular attention to issues of objectivity and issues relating to suggestibility of children and their ability to tell the truth.  Ideally, disclosure interviews should span a series of interviews and be conducted by the one person in a manner that is sympathetic to the child’s age and provides specific contextual content suggests a more probably positive disclosure than one in which important details change during the interview or from interview to interview/ (sic)

   60.The VATE tape demonstrated the difficulty faced by the police interviewer in obtaining a positive disclosure from [X] as the child was unable to distinguish between truth and lies and important contextual details were missing. It would appear that the police have not been able to substantiate the abuse allegations.

   61.Dr. E’s assessment noted that Ms. Milbury continues to experience anxiety and struggles with the divided experience in her mind that [X] is possibly being sexually abused by Mr. Milbury.  (This struggle parallels her own experience about whether or not she was actually molested as a child by her brother’s friend.)  Dr E recommended that Ms. Milbury may benefit from psychological counselling to assist her with this struggle.

   62.False allegations or erroneous allegations have serious consequences to both the falsely accused and the child.  It leads to an immediate severing of the relationship between child and parent.  In this case, the allegations have caused disruptions a second time, to the relationship between Mr. Milbury and both children.  Repeated interviews of the child by the police and repeated medical examinations can cause significant psychological harm to a child and constitutes abuse of the child by the systems that have been tasked to ensure the child’s safety and protection.

   63.In structuring the most appropriate future parenting arrangements for the children, the safety and best interests of the children has to be the paramount consideration.

   64.The writer’s assessment of the relationship between the children and parents remains the same as that provided in the previous assessment.  For this reason, the writer is unable to propose a different set of recommendations to that outlined in the previous report.  Nevertheless, the writer is mindful that Ms. Milbury’s unresolved anxiety over the abuse issues can potentially lead to further notifications and disruptions to the children’s relations with their father, if Mr. Milbury obtains unsupervised visitation.  For this reason, the veracity of Ms. Milbury’s allegations of child sexual abuse may require testing by the Court.

   65.The writer recommends that in future Ms. Milbury discuss any concerns she has in relation [to] sexual abuse concerns with the DHS office who were recently involved and that she accept the advice of DHS on the management of her concerns.  It is not appropriate for her to withhold future visits unless she has been advised to do so by DHS.

   66.The writer has some concern about [X] participating in sexual abuse counselling unless the allegations of abuse have not been substantiated by child protection authorities.  Offering therapy when abuse has not been proven could potentially introduce problems relating to suggestibility of the child.  It is preferable that Ms. Milbury obtains counselling for herself as recommended by Dr. E.

9. Ms R was asked whether those observations were consistent with a child who has been sexually abused.  Ms R said they can be, and children who have been abused still love their parents. 

10. In relation to the gaping hole incident, Ms R said that the mother had provided the information in a history-taking session before Ms R first spoke to [X].  Ms R said that the mother had woken to hear [X] screaming, “Daddy’s hurting me!” and the mother had “walked in on them” to find [X] in bed with no knickers, her legs spread, and the father between [X] and the door.  (The mother did not tell the court she had “walked in on them”.) 

11. Ms R also said that the mother had told her about [X] not wanting to be bathed when the mother was in hospital before [Y]’s birth, about [X] not wanting to be in the same room as her father and about [X] wetting the bed.  (The mother told the court that [X] was happy to be in the bathroom with her father and went there of her own volition.)

12. Ms R said that in her first session with [X], while she was playing with a bead set, [X] said, “My dad has got one of these.  Did you know my dad hurt me?”  Ms R said that she asked “How did he hurt you?” and [X] said “With his fingers.”  Ms R said that she asked “Where did he hurt you?” and [X] pointed.

13. Ms R said that [X] had been very relaxed in the first four sessions but had been more anxious in the last two.  Ms R said that [X] had not wanted her mother to leave the room during the last two sessions so

    
    

    Ms R had not been able to ask very much.

14. Ms R said that [X] had said that she had enjoyed her visits with her father on the last two occasions before the session with Ms R on

    
    4 September 2008

    .  Ms R said that [X] had enjoyed seeing Nonno.

    
    

    Ms R’s notes of the session on 4 September 2008 say the following:

    - came in with Ms Milbury and [Y]

    - did not want mum to leave

    - Ms Milbury explained M. had been to first supervised visit and although was anxious before going - the visit seemed to go well

    - asked M. about the visit to dad’s

    - said it was good, good to see Nonno and played monsters with [Z] - played with the toys

    - looking forward to the next visit

    - … was not happy for mum to leave

    - asked about home routine, child care - everything was ‘good’

15. Ms R said that in her second session with [X], the following exchange occurred:

    Ms R: Who lives at your house?

    [X]: Mum, me and [Y].  We used to live in Daddy’s but we don’t any more.

    Ms R: Why don’t you live at daddy’s anymore?

    [X]: Because he hurt me.

    Ms R: Do you want to tell me a little about that?

    [X]: Daddy hurt me with his fingers.

    Ms R: Just once?

    [X]: Yes.

    Ms R: When did that happen?

    [X]: In Nonno’s. Daddy smacked [Y]’s bottom, it’s daddy’s fault.  He shouldn’t do it.  I can hurt.  You can bleed.  I don’t know what’s happening to him but it’s his fault.

    Ms R: Do you want to see daddy again?

    [X]: No.

    Ms R: Do you miss daddy?

    [X]: No, because he is nasty to me.

    Ms R: Can you show me where daddy hurt you? [pointed to her vagina] Did daddy ever hurt you at your house?

    [X]: No.

16. Ms R agreed in cross-examination that [X]’s statement that “It’s all daddy’s fault” seemed to be mimicking what [X] has heard or feels from her mother.  It was pointed out to Ms R that, contrary to [X]’s statement that her father had not hurt her at her house before separation, the mother alleged that the gaping hole incident and other abuse happened at the family home.  Ms R agreed that [X]’s account was different from her mother’s.  However, Ms R said that she was not concerned about [X]’s maturity and ability to relate matters truthfully to her.  Ms R said that she did not think that [X] was motivated to make up stories to make her mother happy.

17. Ms R said that she firmly believed that [X]’s vagina had been penetrated by her father’s fingers.  Ms R said that she had not seen the reports from the police forensic doctors who had examined [X].  She said it was not her role to do that.  Ms R was asked whether she should have had further evidence before she started interfering with court orders.  She said that she was [X]’s voice and it is known that the digital penetration leaves little or no forensic evidence.

18. Ms R denied that she was aligned with the mother.  Ms R said that she asked [X]:

    Mummy said that she came into your room one night and you said, ‘Daddy hurt you’.  Do you remember that?

19. Ms R agreed that she had prompted [X].  Ms R agreed that if the mother had not told her about that incident Ms R would not have known about it and she would not have asked [X] about it.  Ms R said that she did not think [X] was as young as three at the time of the gaping hole incident.  ([X] was about three years and two months old at that time.)

20. Ms R agreed that [X] had told her that daddy did not hurt her at the family home but that, notwithstanding [X]’s statement, Ms R had said to her during a later session:

    Mummy said that she came into your room one night and you said, ‘Daddy hurt you’.  Do you remember that?

21. [X] answered yes to that question. Ms R said that she was unable to explain the inconsistency between [X]’s two statements.  Ms R said that she believed [X] had been abused because her disclosure was unsolicited.  In re-examination, Ms R said that she did not know why [X] would provide two different answers.  However, she thought it was not unusual in children of [X]’s age.  Ms R thought the inconsistency was something that needed further information.  Ms R accepted that her saying, “Mummy said” might have made a difference to the answer [X] gave.

22. Ms R said that she was surprised that the mother’s evidence to the court in relation to the gaping hole incident was that the father had walked into the marital bedroom fully clothed when [X] was screaming and both parents had gone into [X]’s bedroom.

23. Ms R said that on 4 July 2008 she had been given a copy of the mother’s police statement that she made on 7 June 2008.  However

    
    

    Ms R said that she had not been given any of the affidavits filed in the proceedings, or the DHS file, or the family reports or the VATE tape.

24. Ms R said that in her history-taking session with the mother, the mother said that she found the father in bed with [X] one night.  Ms R said that the mother did not imply that there was any impropriety but said, “It just sits with everything else. It was a red flag to Ms Milbury.”  Ms R agreed that it was quite normal for children at a young age to sleep with their parents.  She agreed that there was nothing sinister about it, but added, “On its own, no” and “potentially” it “signalled something”.

25. Ms R said that the mother had told her in the history-taking session that [X] had told the mother that [X] had been made to lick [Y]’s penis.

    
    

    Ms R said that she was surprised but not shocked that there was no assertion in all the other material in the proceeding that [X] had been made to lick her brother’s penis.  Ms R said that she was under no obligation to report the alleged sexual abuse of [Y] to DHS.

26. Ms R noted that [X] said on 7 August 2008 that:

    I don’t see dad.  I used to love dad but I don’t any more.

    Ms R said that she did not see that as a reflection of what [X] feels about the mother's feelings towards the father.  Ms R said her opinion was not affected by Ms D’Silva’s report about the warmth of the interaction between [X] and her father.

27. Ms R said that the only sign that she had seen that [X] may have been sexually abused was that she is anxious and does not like to be parted from her mother.  However, Ms R agreed that those characteristics were not necessarily indicative of child abuse.  In re-examination,

    
    

    Ms R said that behavioural evidence of sexual abuse in children’s play did not appear very often.

28. Ms R said that she did not tell the mother that she should stop sending the children to see their father.

29. Ms R’s notes say that during the session on 21 August 2008, she asked [X] if anyone had not been behaving and [X] said, “Dad.” Ms R’s notes then record her asking, “Why has dad been misbehaving?” and [X] answered, “Because he hurt me.”  Ms R’s notes record her then asking, “Do you want to see him?” and [X] replying, “No, because he’s nasty.”  Ms R’s notes then show that she asked, “Why is he nasty?” and [X] ignored the question.

1. The mother claimed that she had rung CASA the next day.  However that was inconsistent with her own affidavit sworn on 3 September 2008 in which she said that, after the bed rocking incident, she built up her courage to separate in June 2007 and did so on 13 July 2007.  It was not until that date that the mother telephoned CASA.

2. I do not accept that the mother felt the father rocking on his side of the marital bed and I do not accept that the mother heard [X] hop down from the bed and leave the room.  I do not accept that the mother genuinely believed that the father rubbed himself against [X] in the marital bed.  I consider that the mother has fabricated this incident, just as she fabricated the claim about the father telling [X] to lick [Y]’s penis. 

f.          Other matters in 2007

1. I do not accept that [X] said to her mother “Daddy kiss my bum bum there”, “Daddy came into the bathroom with his stick”, “Daddy got a tree in my bum” or “Daddy kissed me with his tongue.”  There was no evidence that [X] made such statements to anyone else.  For reasons set out elsewhere, I consider that the mother has not been truthful to the court.  I consider that these allegations are fabrications.

2. I do not accept Ms C’s evidence that [X] told her in July and August 2007 that the father had hurt her and pointed to her vagina.  There was no suggestion that [X]’s alleged disclosures to Ms C were conveyed to the police or DHS, even though both of those organisations were conducting investigations at that time.  Certainly, the mother did not produce a record from the police or DHS showing that the disclosures had been reported.  The allegations have the hallmarks of recent invention. 

3. In relation to the mother’s claim that [X] told Dr M in the mother’s presence that “Daddy hurt me in the bath” and “Daddy smacks my bum”, I note that these claims are quite general in nature and do not necessarily indicate sexual abuse.  A “smack on the bum” can be a disciplinary measure or it can be done in play.  A child could be hurt in the bath by soap getting in her eyes or by someone rubbing hard to remove texta pen, for example.  I do not consider that these comments could have led the mother to form a reasonable belief that [X] had been sexually abused.

4. I do not accept the mother’s claim that she understood that Dr M had been unable to find [X]’s hymen during the medical examination in July 2007.  That claim was inconsistent with the mother’s own evidence that she arranged for another medical examination of [X] in September 2007 by Dr C to see if [X]’s hymen was intact.  I find that the mother knew in September 2007 that the medical evidence did not support a conclusion that [X] had been sexually penetrated by a penis or a stick or anything else that left a gaping hole the size of a 10 cent piece.   I find that the mother knew in September 2007 that the medical evidence was inconclusive as regards sexual abuse of [X].

5. I find that the mother knew in about September 2007 that the police had been unable to substantiate her allegations that the father had sexually abused [X].  I find that the mother knew in November 2007 that DHS had been unable to substantiate her allegations that the father had sexually abused [X]. 

6. I do not accept the mother’s claim that [X] was distressed at the prospect of the father touching her.  [X] certainly does not have that reaction to the father now.  Ms D’Silva documented a warm and loving relationship between [X] and her father, even in the somewhat unnatural environment of an interview room.  [X], of her own volition, clambered onto the father while he was on the floor.  Ms M, who was not challenged at all, gave evidence of a warm and loving relationship between [X] and the father, which included [X] wanting to be carried around Federation Square by her father and [X] having to be persuaded to go back to her mother.  I am unable to accept that [X] has ever been distressed at the prospect of her father touching her.  I find that the mother has fabricated this allegation.

7. I do not accept that [X] pretended to lick the father’s clothed genital region.  There is only the mother’s assertion to support this allegation.  The father denied it.  For reasons stated elsewhere, I do not consider the mother to be a truthful witness.  I find this allegation to be a fabrication.  

8. I consider that Ms C greatly exaggerated the incident with the sock puppet.  People’s eyes do not turn black.  The incident with the sock puppet, even if not discounted for exaggeration, provides a very fragile basis for a belief that [X] had been sexually abused by her father, and could be explained in many other ways. 

9. As to the allegations of bedwetting, [X] was wearing a nappy to bed for the period in question.  In any event, she was of an age when many children continue to wet the bed for purely developmental reasons.

10. Taking cumulatively all of the matters that the mother has raised, I do not accept that the mother had a reasonable basis for the allegations that [X] had been sexually abused by her father in 2006 or 2007, and I do not accept that the mother genuinely believed that [X] had been sexually abused by her father at that time.

g.         The mother’s counselling

1. I do not accept the mother’s claim that Dr M advised her to have marriage counselling.  In accordance with Ms D’Silva's report, I find that Dr M advised the mother to have counselling for her own needs. I also find that Dr E advised the mother to have counselling in his report dated 30 April 2008.  I find that the mother ignored that advice until after the contravention application was served.

2. The mother was put on notice that she was required to produce evidence from her counsellor verifying that the mother was receiving counselling.  The mother produced no such evidence.  However, based on Ms R’s evidence, I accept that the mother began counselling for herself at EACH in or after July 2008.  Although Ms R was quite aligned with the mother, I do not believe that Ms R would perjure herself for the mother’s benefit in relation to a matter that could so easily be checked. 

3. As the mother did not call evidence from her counsellor, it is not known what her counselling is directed to.  If [X] was sexually abused, the mother might need counselling to assist with feelings of guilt for example.  If [X] was not sexually abused, the mother might need counselling to assist her to properly interpret the events that she has claimed to have observed.  Dr E said that the mother needed counselling to help her to clarify in her own mind what had happened.  It is by no means clear that the mother is receiving the appropriate sort of counselling at the moment.

h.         Ms D’Silva’s report dated 15 January 2008

1. As stated above, I accept the contents of Ms D’Silva’s report dated

   
   15 January 2008

   on the basis that no one sought to cross-examine her.  The mother should reasonably have read and understood that report by March 2008.   Accordingly, by March 2008, the mother:

   a)knew or ought to have known of the psychological assessments of both herself and the father conducted by Mr S; 

   b)

   knew or ought to have known about the observations made by

   
   

   Ms D’Silva about the warm and loving interactions between the children and their father;

   c)knew or ought to have known about Ms D’Silva’s concern that the mother may have unwittingly transmitted “negative messages to the children that it is unsafe for them to be with their father which may confuse them and psychologically harm them”; and

   d)knew or ought to have known that, in Ms D’Silva’s professional opinion, it was appropriate for the children to spend alternate weekends with their father without supervision.

1. The orders of 27 February 2008

1. The very fact that the court made orders on 27 February 2008 for [X] and [Y] to have unsupervised contact with their father should have made it clear to the mother, and she should have reasonably believed on that basis, that the events preceding that date did not give rise to an unacceptable risk that [X] or [Y] would be sexually abused by their father in the future.

2. The fact that the mother continues to maintain that the events which preceded separation were a basis for her to believe that the father sexually abused [X] suggests that the mother is unable or unwilling to accept a reasonable interpretation of those events.  The court order was based on, among other things, the psychological assessments of Mr S, the report of Ms D’Silva dated 15 January 2008, the inconclusive medical reports and the fact that the police and DHS were unable to substantiate the mother’s allegations.  A reasonable person in the mother’s position would have gained a great deal of comfort and reassurance from the court orders, and the circumstances on which they were based.

j.           [X]’s disclosures to the mother in 2008

1. The mother’s claims about [X]’s disclosures to her in about April or May 2008 were quite garbled.  Her evidence was contradictory about when the disclosures happened and how many there were.  It made no sense that the event that the mother said persuaded her to go to the police was [X]’s refusal to get in the car to go to see her father, when the mother actually went to the police on Friday 6 June 2008, being the day before [X] was due to see her father. 

2. Notwithstanding all that, I accept that [X] told the mother in about May 2008 that the father had put his fingers in her fanny and had hurt her.  [X] made the same disclosures to the police as recorded in the VATE tape on 7 June 2008. 

3. I do not accept that [X] made the other disclosures alleged by the mother, including “Daddy is tongue kissing me” and “Nonno can’t protect me”.  These statements have not been made by [X] to anyone else.  I consider that the mother has fabricated these allegations.

4. I also do not accept that [X] was reluctant to visit her father.  That is inconsistent with the family report dated 15 January 2008 and, even more pertinently, the evidence of Ms M about [X]’s time with the father on 31 May 2008.  That was the last visit [X] had with her father before the mother stopped contact on 7 June 2008.  Ms M was not cross-examined.  Her evidence was not called into question in any way.  [X] did not say in the VATE tape that she was reluctant to spend time with her father, even though that interview was also conducted shortly after the time in question.  [X]’s statements to Ms R to the effect that [X] did not wish to see her father were about a month later, when [X] had not seen her father for some time. 

5. I do not accept the mother’s claim that [X]’s behaviour and demeanour changed in the lead up to 7 June 2008.  That claim is inconsistent with [X]’s behaviour on 31 May 2008, as shown by Ms M’s unchallenged evidence.  I consider that the mother has fabricated this claim.

6. While it is well known that children will sometimes convey to a parent that they do not wish to spend time with the other parent when they really do, I do not consider that happened in this case.  As stated, I consider that the mother has fabricated certain very serious allegations against the father.  I consider that she has also fabricated the allegation that [X] was reluctant to spend time with the father in May and June 2008.  I do not accept that the mother genuinely believed that [X] was reluctant to spend time with her father in May and June 2008. 

7. When it was put to the mother that, “[X] is simply saying things … to make you happy”, the mother replied, “That's what I thought, but there's a difference.”  The difference the mother was referring to was a change in [X]’s demeanour and behaviour.  However, I take the mother’s reply to be an admission that she knew that children sometimes make very serious but false allegations against one parent to make the other parent happy.  I also take the mother’s reply to be an admission that she would have understood [X]’s statements that the father hurt and digitally raped her as being intended to make the mother happy, if it were not for the change in [X]’s demeanour and behaviour.  As stated above, I consider that the mother fabricated her claims about a change in [X]’s demeanour and behaviour. 

8. The mother gave inconsistent and incoherent evidence about the time period during which [X] made statements that her father had digitally raped her.  However, overall, the mother seemed to say that [X] made such statements for three weeks before 7 June 2008.  The mother on some occasions said that she believed [X] from the beginning, but also said that initially she just thought “kids say things” and that she “did not get enough belief in her to go to the police” until [X] said it week after week.  The effect of this evidence is that, initially, the mother did not actually believe that [X] was telling the truth. 

9. That is borne out by the fact that the mother continued for three weeks to take [X] to spend time with her father.  There was no suggestion that during that time the mother reported the allegations of digital rape to DHS, the police, the independent children’s lawyer, a doctor or any professional.  If the mother had actually believed that [X] was telling the truth, and had actually believed that [X] had been digitally raped by her father, it is beyond belief that the mother would not have reported it immediately to an independent person or authority.  

10. The mother was unable to adequately explain the change in circumstances that made her believe that [X] was not just saying things, but telling the truth. The mother said that she believed [X] was telling the truth when she refused to get in the car to visit the father and when her demeanour changed.  As stated above, I do not accept that [X]’s demeanour changed in the period in question, and the timing of [X]’s alleged refusal to get in the car did not make sense. 

11. I do not accept that the mother changed her mind, from thinking “kids say things” to thinking [X] was telling the truth.  The reasons the mother gave for starting to believe [X] were incoherent and unpersuasive.  I do not accept that the mother genuinely believed, on

    
    

    7 and 14 June 2008, that [X] had been hurt and digitally raped by her father.

k.         Ms C’s evidence about events in 2008

1. I do not accept Ms C’s evidence that the behaviour of [X] and [Y] changed when unsupervised visits started.  Ms C was unable to say even approximately when the unsupervised visits began.  Moreover, her evidence was vague and subjective.

2. I accept Ms C’s evidence that the mother came to her house one morning in June 2008, apparently distraught, and made certain allegations about the father’s conduct towards [X].  I infer that this event occurred on 6 June 2008.  

3. I accept that [X] made the alleged disclosure to Ms C on about 14 June 2008.  It is surprising that Ms C did not tell the police about that disclosure.  However, given that [X] was telling the police and Ms R much the same thing at about the same time, I consider that [X] probably did make that disclosure to Ms C on 14 June 2008.  

l.          Professor W’s medical examination

1. Professor W conducted a medical examination of [X] on

   
   6 June 2008

   .  The result was inconclusive.  There was no evidence about when the results of that medical examination became known to the mother. 

m.       The conclusions of the police investigation

1. It was common ground that the police investigation ended without charges being laid against the father.  It is not clear when the mother learned that no charges would be laid.   

l.          Ms R’s evidence

1. I accept that [X] made the disclosures that Ms R has identified.  Ms R’s evidence was detailed and supported by her contemporaneous notes. Additionally, [X] made similar disclosures to other people, including the police as documented on the VATE tape.

2. However, that still leaves the question of whether [X] told Ms R about something that really happened or whether [X] told Ms R what [X] believed her mother wanted her to say. 

3. Dr E outlined the dangers of proceeding as Ms R had done, that is, by accepting the allegations made by one parent without reference to the other parent or the background circumstances.  Dr E also cautioned against leaping to the conclusion that, “The child said it. Therefore it’s true. Therefore she shouldn’t see the father.” That is exactly what Ms R did, by her own admission. 

4. Ms R’s own evidence provides a perfect example of how a professional expert can corrupt a child’s account of what has happened to her.  Ms R admitted that she said to [X]:

   Mummy said that she came into your room one night and you said, ‘Daddy hurt you’.  Do you remember that?

5. Clearly, Ms R put words into [X]’s mouth and gave those words the authority of an account that the mother had confirmed.  Ms R did this even though [X] had previously told Ms R that the father had never hurt her at the family home.

6. [X]’s account to Ms R was inconsistent in some respects with the mother’s allegations.  [X] said that she no longer lived at her father’s house because he had hurt her just once with his fingers at Nonno’s house.  However, the mother’s case was that she and [X] no longer lived at the father’s house because of, among other things, the gaping hole incident and the rocking bed incident.  The alleged fingers in the fanny incident at Nonno’s house occurred longer after separation.

7. Ms R’s opinion appears to have been influenced by statements made by the mother to Ms R which the mother did not make on oath or report to any professional or investigative body.  For example, the mother told Ms R that she had “walked in” on the father and [X] during the gaping hole incident and the mother told Ms R that the father had made [X] lick [Y]’s penis.  The mother’s own evidence to this court was not that she “walked in” on the father and [X].  As stated above, I consider that the mother fabricated the incident about [X] licking [Y]’s penis.

8. Ms R’s evidence shows that [X] is very closely attached to her mother and finds it difficult to separate from her.  Ms R does not appear to have given adequate consideration to whether [X] may have been influenced by her mother in the disclosures that [X] made.

9. Ms R also appears to have completely discounted Ms D’Silva’s accounts of the warmth of the interactions between [X] and her father and appears to have completely discounted [X]’s statements to the effect that she enjoyed her time with her father and his side of the family on the last two occasions prior to the session with Ms R on

   
   

   4 September 2008. 

Conclusions

1. All in all, I consider that Ms R’s opinion about whether [X] was sexually abused by her father was unsoundly based.  It was partly based on allegations by the mother that were untrue, such as [X] saying that the father had told her to lick [Y]’s penis and the mother “walking in” on the father during the gaping hole incident.  Ms R has also formed her view based on an approach Dr E cautioned against.  I accept his opinion of Ms R’s approach.  Dr E is a qualified psychiatrist with considerable experience in sexual abuse cases, not simply as a counsellor, but in a forensic environment. Additionally, by saying, “Mummy said …” to [X], Ms R obtained a disclosure that might have had no connection with reality.  Ms R has reinforced with [X] a particular view of the past which may or may not be accurate.  It may be very difficult to undo what Ms R has done.

2. Be that as it may, the fact is that Ms R did not see [X] until 4 July 2008.  That was about one month after the contraventions in question.  I do not accept that [X]’s disclosures to Ms R provided a reasonable excuse for the mother not complying with the court orders on 7 and

   
   

   14 June 2008.  Particularly because Ms R’s opinion was unsoundly based, I do not accept that it provides a retrospective reasonable excuse for the contraventions.

3. The mother said, and I accept, that she did not see the VATE tape prior to the contraventions.  Consequently, in view of my findings, the mother’s claim to have a reasonable excuse rests on [X]’s statements to the mother in the three weeks preceding 7 June 2008 to the effect that the father had hurt and digitally raped [X]. 

1. [X]’s statements must be viewed in the light of all the other material that was known to the mother, or that she should reasonably have known, including that the mother had fabricated the allegation that the father told [X] to lick [Y]’s penis, the gaping hole incident, the bed rocking incident, and so on. 

2. [X]’s statements must also be viewed in the light of Ms D’Silva’s first report.  The mother had full knowledge of that report, and should reasonably have obtained a proper understanding of it. The report included, in particular, the account of [X] voluntarily engaging in rough and tumble play with the father on the floor and spontaneously saying, “I love you Daddy”.  Additionally, Ms D’Silva said, of the mother:

   Unwittingly she may transmit negative messages to the children that it is unsafe for them to be with their father which may confuse them and psychologically harm them.  It is difficult to know whether Ms. Milbury’s fixation with child sexual abuse may have its origins in her own childhood experiences. 

3. [X]’s statements should also be viewed in the light of the mother acknowledging that she would have thought that [X] was just saying things to make the mother happy, except for the change in her demeanour, which I do not accept occurred.

4. [X]’s statements should also be viewed in the light of the mother failing until after the contraventions had occurred to have the counselling that Dr M, and later, Dr E, recommended that she have.  People might frequently ignore professional advice to obtain psychological assistance, but it is generally not reasonable to do so.

   
   

   I do not accept that it was reasonable for the mother, in the context of this case, to ignore professional advice to have counselling. Given the extremely serious impact of the mother’s allegations on her children and the father, the mother should reasonably have had counselling to clarify her possible confusion about the possible sexual abuse of [X] prior to the contraventions occurring.

5. [X]’s statements must also be viewed in the light of the court orders that were made on 28 February 2008 for unsupervised contact.  The orders took into account the mother’s allegations of sexual abuse prior to the orders being made.  The orders should reasonably have indicated to the mother that there was a very low possibility that the children would be harmed by their father.  [X]’s statements should also have been viewed by the mother in the light of previously inconclusive medical examinations and official investigations.   

6. I have said that the mother fabricated various allegations.  I accept that it is possible that her fabrications may have had a psychological cause.  The mother might suffer from delusions, for example.  If so, she deserves compassion.  However, beliefs based on delusions, by definition, are not reasonable. 

7. The mother knew or should reasonably have known that she had fabricated the gaping hole incident, the bed rocking incident and numerous other allegations.  The mother knew or should reasonably have known that she had a tendency to fabricate sexual abuse allegations.  The mother knew or should reasonably have known that [X] was a young child who would be susceptible to her influence and who would make false statements to make her mother happy.  The mother knew or should reasonably have known that the statements made by [X] were unlikely to have been true.  In such circumstances, I do not accept that the mother had reasonable grounds on 7 and 14 June 2007 for a belief that not allowing [X] or [Y] to spend time with their father was necessary to protect [X]’s or [Y]’s health or safety.

8. Moreover, for the reasons given in paragraph 269 and following, I do not accept that the mother genuinely believed that [X]’s statements were true.  Because the mother did not have a genuine belief or a reasonable belief that not allowing [X] or [Y] to spend time with their father was necessary to protect the health or safety of [X] or [Y], she did not have a reasonable excuse for the contraventions on 7 and

   
   

   14 June 2007.  

9. In deciding whether the contraventions fall within Subdivision E or Subdivision F of Division 13A of Part VII of the Act, the court must consider whether the respondent has shown serious disregard for his or her obligations under the primary order. While I consider that the mother has fabricated numerous allegations of sexual abuse, the evidence in relation to her psychological state is such that I am not satisfied that the mother has shown serious disregard for her obligations, in the sense that “serious disregard” would normally be understood.

10. I will hear the parties on the appropriate orders to be made. One option is to vary the parenting orders under s.70NBA of the Act. The father has a parenting application before the court. An independent children’s lawyer is involved in that proceeding. However, she has not been involved in the contravention proceedings, due to funding restrictions. It is to be hoped that the independent children’s lawyer will be able to contribute to the question of whether there should be a variation to the parenting orders, even though that question is presently being addressed in the context of the contravention proceedings.

I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Alexandra Sidoti

Date:  14 November 2008