Mohem and Wittner

FAMILY COURT OF AUSTRALIA

MOHEM & WITTNER

[2009] FamCA 1367

FAMILY LAW – CHILDREN – With whom a child lives – Allegations of sexual abuse

APPLICANT:

Mr Mohem

RESPONDENT:

Ms Wittner

INDEPENDENT CHILDREN’S LAWYER:

Michael Brown

FILE NUMBER:

PAC

1446

2009

DATE DELIVERED:

27 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

STEVENSON J

HEARING DATE:

15 & 16 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Conti-Mills

SOLICITOR FOR THE APPLICANT:

South West Sydney Legal Centre

COUNSEL FOR THE RESPONDENT:

Mr Greenaway

SOLICITOR FOR THE RESPONDENT:

Marsdens Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Browns The Family Lawyers

Orders

That all prior parenting orders in relation to the child E born … March 2005 (‘the child’) are discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as follows:
4.1for a period of 3 months commencing on 31 October 2009 , each Saturday from 9:00am to 5:00pm with the father to collect the child from the mother at L Shopping Centre at the commencement of this time and to return her to that place at the conclusion thereof
4.2during the time with the father set out in order 4.1 the father is restrained from bringing the child into contact with the paternal grandfather
4.3the father shall not have any other family member or friend present during the first three (3) occasions when he has time with the child and thereafter the paternal grandmother is at liberty to accompany him and, after 8 visits, other family members except for the paternal grandfather may attend
4.4from 3 months after the making of these orders until the conclusion of Term 1 in the 2010 school year, from after school/or at 5:00pm on Friday, until 5:00pm Saturday afternoon
4.5from the conclusion of Term 1 in the 2010 school year, each alternate weekend from after school on Friday until before school on Monday
4.6from the conclusion of Term 2 in the 2010 school year in addition to the time provided for in order 4.5 each Wednesday from after school until 7:30pm, with the father to collect her from school and return her to the home of the mother
4.7from the summer school holidays 2010/2011
(i)for 1 week in January 2011 and thereafter
(ii)one half of each school holiday period
commencing at the conclusion of Term 1 in 2011 and each school holiday period thereafter
4.8each Fathers Day weekend from 5:00pm on Saturday until before school on Monday
4.9at all other times as agreed between the parties.
The child’s time with the father shall be suspended as follows:
5.1from January 2011, there shall be no alternate weekend or midweek time during school holidays
5.2each Mothers Day weekend from 6:00pm on Saturday until before school on Monday
5.3each Easter Friday, Saturday and Sunday provided that the child spend time with the father on the following Friday, Saturday and Sunday
5.4each 24^th, 25^th & 26^th December provided that the child shall spend 3 make-up days with the father, in one block period, on dates which he shall nominate in writing in default of agreement by the parties.
That the father be restrained from permitting the child to be left in the care or presence of the paternal grandfather without the father being personally present to supervise for a period of 2 years from the date of these orders.
That each of the parties do all things necessary to ensure that the child’s name is placed and maintained on the Airport Watch List.
That each of the parties enrol in and complete a post-separation parenting course as recommended by the Independent Child’s Lawyer.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1446 of 2009

MR MOHEM

Applicant

And

MS WITTNER

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Mohem and Ms Wittner are the parents of a little girl, who was born in March 2005 and is now 4 years old. Within her family, she is known as “E” and I will refer to her by that name in these reasons.
The child’s parents have extremely polarised views as to what parenting orders would be in her best interests. The applicant, the father, initially sought orders for a week-about shared care arrangement. To his credit, ultimately he acknowledged that a week-about arrangement would be neither practicable nor in the child’s best interests and abandoned this proposal.
The Independent Child’s Lawyer (‘ICL’) proposed a graduated regime of time for E with her father, leading to alternate weekends, one afternoon in the off week and half of all school holidays. There would be an order to prevent the paternal grandfather, Mr Mohem (Snr), being present while E is with her father for the first 3 months. Thereafter there would be an order to restrain the father from leaving the child in the care or presence of the paternal grandfather, unless he personally supervises at all times.
The respondent, the mother, proposed that the child see her father only at a contact centre. Recognising the reality that any contact centre could offer its facilities for a relatively short period, and for a limited time on each occasion, the mother made an alternative proposal for unsupervised time. This arrangement would see the child spending day periods only with her father until 31 January 2011 and, thereafter, on alternate weekends, one night in the off week and for a block period of 7 days in each school holiday. The father would be restrained from bringing the child into any contact with the paternal grandfather until he obtains his own accommodation, independently of his parents, or until 31 January 2011.
The mother alleged that the child has been sexually abused by her paternal grandfather. A Joint Investigation Response Team (‘JIRT’) enquiry into these allegations resulted in no criminal action against the paternal grandfather.
A Family Report, prepared by Consultant Ms D, indicated clearly that the child has developed a fear of her paternal grandparents and of spending time in their home. She could not identify the basis of these fears which, nevertheless, she assessed as being very real for the child. The nature of the child’s current relationship with her paternal grandparents was the basis for the ICL’s proposal for a gradual reintroduction of the paternal grandmother and, later, the paternal grandfather. The ICL’s position was that there was “insufficient evidence” to ground a finding of sexual abuse and, by necessary implication, that there was no unacceptable risk for the child in the care of her father.

Background

The father, who is 34, and the mother, who is 30, began a relationship in 1994 when he was 19 and she was 15 years old. They come from markedly different cultural and religious backgrounds. The father is Indian and of the Hindu faith and the mother is a Pakistani Christian. It seems that their relationship developed against the strong wishes of the maternal family.
The father and the mother were married in a Christian ceremony in Pakistan in December 1998. Their relationship was unstable and they separated in mid 1999. They lived apart until 2003, then reconciled until their final separation in April/May 2005. The child was only a few weeks old when her parents’ relationship broke down finally.
On 16 December 2005 interim orders were made by consent, which provided that the child spend time with her father for 2 hours on 3 occasions per week at the home of her mother. The orders permitted the father to bring one member of his family to these visits.
In August 2006 the father commenced full time employment. The existing interim orders were varied to provide that the child spend time with her father for 2 hours each Saturday at L shopping centre, pending arrangements for the visits to take place at a contact centre. By agreement between the parties, the child continued to spend time with her father at the shopping centre in the presence of her mother, rather than at a contact centre.
On 4 February 2008 final orders were made by consent, which provided that the child live with her mother and spend time with her father on a graduated basis leading to alternate weekends. It seems that this arrangement proceeded without difficulty for several months.
In July/August 2008 the mother placed the child in the care of her father and travelled to Pakistan for 2½ weeks. The father lives with his parents and the child spent this period in their home. The mother collected the child on 5 August 2008.
According to the mother, on 16 August 2008 the father told her that the child had drawn “a picture of the human body with a penis” while she was staying in his parents’ home. According to the mother, on the same day the child clung to her and said she did not want to go to her father’s home. He agreed that she should return home to her mother due to her level of distress. The father denied that he told the mother that the child drew a human figure with a penis, while in his care.
On 29 August 2008 the child went to her father’s house and stayed for the weekend. According to the mother, when she collected her on Sunday afternoon the child said “it hurts Mummy to do pee”. The mother said that she observed “her vagina was red and swollen”. She thought that “it may have been nappy rash” and asked her cousin, who is a registered nurse, to examine the child.
The mother said, further, that on 6 September 2008 she and the child were “laying in bed just talking about things in general”. She said that the child suddenly “went quiet” and stated “Tata naughty I don’t like him”. The mother asked the reason and the child said “Tata touch me here, here and here. I don’t like it”. The mother alleged that, as the child said these words, she “pointed at her vagina, her bottom and her breasts”.
That evening the mother and the child were at the home of the maternal grandmother, Mrs Wittner (Snr). According to the maternal grandmother, the child followed her into her bedroom and said: “Ami, Tata so big, very hard, he put here and hurt me”. The maternal grandmother alleged that the child “gestured towards her groin area”. She said that she hugged the child, who was “upset and angry and was saying words ‘Tata yucky’”.
The mother alleged that the child started to cry on the morning of 7 September 2008, when she took her to have a shower. She stated “don’t touch me here”, while pointing at her breasts.
On 8 September 2008 the mother approached a counsellor at L Community Health Centre. This counsellor advised her to contact DOCS Helpline. On 11 September 2008 she took the child to a general practitioner, Dr O. On the same day the mother contacted the DOCS Helpline.
In her affidavit the mother described the consultation with Dr O as follows:
“She examined [the child] but there was no physical evidence as to penetration of her vagina. However, our daughter did say to the doctor, pointing to her vagina words to the effect ‘it does not hurt any more’. The doctor then asked our daughter ‘so it was hurting before?’ and [the child] replied ‘yes’. The doctor then asked her ‘why was it hurting before?’ and she replied words to the effect ‘Tata pressed hard here’ pointing to her vagina. She then hugged me really tightly and said ‘I don’t want to go to papa’s house any more’.”
The notes of Dr O (exhibit 4) described this consultation as follows:
“Shared custody with the father – last visit was two weeks before.
Mum suspected that child being sexually abused by grandfather – child complained of pain in the vaginal area and does not want anyone to touch her there, told mum that granddad (Tata) touched her there – demonstrated with her hand – pressed with the palm of the hand.
Child otherwise seems in good spirit, no noted problem with urinating, no noted discharge on underwear. Child said the same thing during consultation when asked whether ‘someone hurt her in her fanny’ – said ‘Tata’ demonstrated by pressing her hand in the vaginal area.
Vaginal examination: no signs of vaginitis, cannot assess hymen.
Plan: Mum to report to DOCS her suspicion.
Child due for another visit tomorrow.”
According to the mother the child made another disclosure on the night of 11 September 2008, as she was putting on her nappy at bedtime. In her affidavit the mother said:
“[the child] asked me ‘touch me here’ pointing at her vagina. I asked her how she wanted me to touch her as she had never asked to do that before. Our daughter then started brushing and rubbing her fingers on her vagina and said ‘like this’. She then stretched her vagina lips and said to me to put my finger on it. I asked her how did she know to touch like that and she said ‘Tata do like this’. I then asked what she did when Tata did that to her and she replied saying ‘I was saddy and crying for mummy because it was hurting’. She then started to show me the sad and painful expressions that she would have made at the time she was going through the experience. She stated ‘I doing this Mummy’.”
The mother informed the father of the child’s alleged disclosures on 12 September 2008. On the following day he went to her house and said to her: “I don’t believe you and I don’t want to see the doctor, I want to take [the child] to [L Shopping Centre] on my own and speak to her one on one.” Nonetheless he agreed that he would refrain from taking the child to his parents’ home.
On 12 September 2008 JIRT accepted a referral and began an investigation into these allegations. The DOCS file (exhibit 6) recorded that the mother’s initial information as to the disclosures as follows:
“Mother presented with concerns about her daughter being sexually abused by paternal grandfather whom she had contact with on the previous Saturday. Mother noted the following re disclosure from child to her:
Child – ‘Da Da yucky’
Mother – ‘why?’
Child – pointed to breast area, vagina and anus.
Child – ‘I don’t like it Mummy’ (child said this a number of times)
Mother – noted child’s face to be sad.”
It is highly likely that the mother related that the child said ‘Tata’, rather than ‘Da Da’.
According to the maternal grandmother the child made another disclosure to her in late September 2008. In her affidavit she said:
“Approximately one week later, [the child] was at my house with [the mother], [the child] was sitting on the toilet and then came out from the bathroom and said to me words like ‘Ami, Tata touched me here, here, here, everywhere’. [The child] was pointing to different areas of her body, including her groin, mouth, chest and face. I was shocked and I hugged her.”
The maternal grandmother recounted a further alleged disclosure by the child which occurred “at or around this period”. In her affidavit she said:
“[The child] was at my house and I was minding her for [the mother]. We were in the garage and [the child] was playing with a piece of wood. I said to [the child] words to the effect of ‘[E], don’t play with that, it is dangerous’. [The child] said to me words to the effect of ‘oh no Ami, this is hammer, only Tata can hurt me with this, Tata hurt me with this.’ The piece of wood was shaped similar to a penis. Because of the shape of the piece of wood I understand that [the child] was referring to a sexual act that the paternal grandfather has done to her.”
On 13 November 2008 JIRT officers interviewed the child at their office. The DOCS file contained these notes of the interview:
“On 13/11/08 [the mother] attended the [L] JIRT office with [the child]. Constable [Y] recorded my interview with [the child] on A/V equipment. [The child] and I did some colouring in prior to the interview in an attempt to get her to feel comfortable to be interviewed alone, but [the child] still opted to have her mother present during the interview. I used a number of non-leading techniques to raise the allegations with [the child], beginning with ‘tell me what you have come to talk to me about’, ‘tell me who is in your family’, ‘tell me who you visit’, to using the body chart. [The child] did not disclose anything during this questioning, apart from briefly saying ‘Tata was naughty’ and ‘Tata hurt me’. [The child] was not able to elaborate on what she meant by saying ‘Tata was naughty’. I put the allegation to [the child] to gauge her response by saying ‘I heard Tata touched you on the tummy’ ([the child’s] word for vagina), and ‘I heard Tata hurt your tummy’, but [the child] did not disclose anything in response.
After using a number of leading techniques with no result, the interview was terminated. Following the interview, SC [Y] and I spoke with [the mother]. [The mother] advised that she had felt very frustrated during the interview, as she believes [the child’s] verbal ability is much better than demonstrated, and she felt that [the child] was too distracted by the interviewing method (ie going through truth and lies, rules of conversation, et cetera), so that when I attempted to raise the allegation, her concentration was already gone.”
On 14 November 2008 the mother requested that the child be re-interviewed. The DOCS file recorded:
“[the mother] also requested that [the child] be re-interviewed, as she thought that [the child] had not been behaving like herself during yesterday’s interview. [The mother] said [the child] can usually communicate much clearer, and that [the child] had clearly disclosed to her on a number of occasions. I said that I would check with my supervisor about this, and indicated that if we were to re-interview [the child], it would likely be a DOCS only interview.”
The second interview took place on 20 November 2008 at the mother’s home and in her presence. Two DOCS officers conducted the interview. The departmental file contained these notes:
“On 20/11/08 Caseworker [Ms B] and I conducted a home visit to [the mother’s home] to re-interview [the child]. As the criminal investigation has been discontinued, my interview with [the child] was primarily to assess her safety. The interview began with me directly asking [the child] to tell me about her Tata (paternal grandfather) and I used the body chart in an effort to identify if Tata had touched [the child] anywhere on her body. After gradually asking [the child] to show me where Tata had touched her, [the child] eventually gestured at the bottom area of the body chart (which she called ‘Bumpy’) and said ‘Tata touched there’. [The child] also spoke of being hit with a hammer. I asked [the child] where the hammer had hit her and she pointed at her vagina (on her own body). Throughout the interview [the child] seemed very hesitant to disclose anything, and repeatedly refused to talk, or attempted to avoid talking by going back to her room, getting her photo album out to look at.
I asked [the mother] to bring some dolls of [the child’s] out in an attempt to re-engage [the child], and I asked [the child] to show me on the doll where the hammer goes. [The child] immediately pulled the doll’s clothing up and pointed at the genital area. [The child] then said ‘Tata has a long hammer’. [The child] did not disclose any further information.”
On 23 December 2008 the JIRT officers decided to cease their investigation. The DOCS file noted:
“JIRT investigation may now cease. Mater could not be substantiated due to the fact that F/C was not sufficiently verbal and thus could not provide a clear disclosure, F/C was very avoidant during the interview, and leading tactics were used during the JIRT interview.”

The Evidence and Witnesses

The applicant father relied on the following affidavits:
1. affidavit of Mr Mohem (the father) affirmed 8 October 2009
2.affidavit of Mrs Mohem (Snr) (paternal grandmother) affirmed 7 October 2009
3.affidavit of Mr Mohem (Snr) (paternal grandfather) affirmed 6 October 2009
4. affidavit of N Mohem (paternal uncle) affirmed 6 October 2009
N Mohem was not required for cross-examination. All of the other witnesses in the father’s case gave oral evidence. They all vehemently denied the allegations of sexual abuse of the child by the paternal grandfather. In some respects their evidence was unimpressive but their denials impressed me as genuine and credible.
The respondent mother relied on her affidavit affirmed on 12 October 2009 and an affidavit of the maternal grandmother, Mrs Wittner (Snr), affirmed the same day. Both the mother and her mother gave oral evidence. The maternal grandmother gave some extraordinary evidence in relation to the allegations of sexual abuse.
I had the benefit of a Family Report dated 13 October 2009 and oral evidence from a Family Consultant, Ms D. She indicated that her report should be read in conjunction with a reported dated 19 December 2007 prepared by Family Consultant Ms C. I found Ms D’s evidence persuasive and very helpful. I also had the assistance of a Magellan report dated 27 July 2009.

Approach To These Proceedings

A succinct statement of the legal principles which govern the determination of cases involving allegations of sexual abuse was set out by Brown J in a recent decision. I adopt with thanks to my learned colleague a summary of the relevant legislative provisions, in the following terms:
“The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the court finds that it would not be in the best interest of the child for it to apply.”
Brown J went on to consider the principles referable to the determination of an application which involves allegations of sexual abuse. Adopting appropriate paraphrasing, to reflect the circumstances of these proceedings, Brown J’s summary can be expressed as follows:
“In essence the court must determine whether there is an unacceptable risk of the child being sexually abused by her paternal grandfather while in the care of her father. If the court is of the view that there is an unacceptable risk that the child will be sexually abused by her paternal grandfather, it is then necessary to determine whether the father can and will protect her from that risk. The standard of proof is that set out in s.140 of the Evidence Act 1995 (Cth), pursuant to which the court must find the case of a party provided if it is satisfied that the case has been proved on the balance of probabilities. As provided in s.140(2), and without limiting the matters which the court may take into account in deciding whether it is so satisfied, the court must take into account the nature of the cause of action or defence, the nature of the subject matter or the proceeding and the gravity of the matters alleged.”

The Primary Considerations: Section 60CC2

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

Counsel for the mother opened her case by stating that the mother supports the relationship between the child and her father and is concerned only to ensure the child’s safety. Having heard all of the evidence, it seemed to me that she may have over-reacted to the child’s statements, with considerable encouragement and reinforcement from the maternal grandmother. I accept that she has a genuine wish for the child to have a meaningful relationship with her father.
The Family Consultant assessed the quality of the child’s relationship with each of her parents as follows:
“[E] was observed to be bonded to both her parents though her mother appeared to be her primary attachment figure, which would be consistent with spending significantly more time with her mother, as well as her mother being a responsive parent. Both parents agree that she has a positive relationship with, and clearly loves, the other parent and this was demonstrated in her actions with them in the playroom.”
It is my firm view that the child has derived considerable benefit from her relationship with each of her parents up to this point in her life. Unless it is necessary to protect her from the risk of sexual abuse by the paternal grandfather, I would be most reluctant to confine her interaction with her father to a contact centre. The limited time which a contact centre can offer and the artificiality of the situation would probably mean that, at best, the child’s relationship with her father is preserved at its current level. It could well be that development of their relationship is hindered and not permitted to flourish naturally, as the child grows older.
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Counsel for the ICL submitted that there was insufficient evidence to justify a finding that the child has suffered sexual abuse by her paternal grandfather, a conclusion with which I agree. I would add that my conclusion is that the evidence does not justify a finding that there is an unacceptable risk that the child will be sexually abused by the paternal grandfather.
I have referred already to much of the evidence relevant to the allegations of sexual abuse. In my view the involvement of the maternal grandmother is of significance. She appeared to have an unshakeable belief that the child has been sexually abused and she drew some quite remarkable conclusions from seemingly innocuous situations to support this opinion. In response to questions from me, the maternal grandmother stated unequivocally: “I believed that she had been abused from the first day she told me. I have never doubted since that she has been abused.”
A graphic example of the maternal grandmother’s readiness to draw extraordinary conclusions, to support her belief that the child had been sexually abused, arose from the alleged event in her garage when the child was playing with a piece of wood. I have already referred to the details of this alleged incident. The maternal grandmother rushed to conclude that this incident amounted to a disclosure of sexual abuse by the child. As noted, she said in her affidavit, inter alia:
“The piece of wood was shaped similar to a penis. Because of the shape of the piece of wood I understood that [the child] was referring to a sexual act that the paternal grandfather has done to her.”
In cross-examination the maternal grandmother said that the piece of wood was a leg from a broken occasional table. It was dark brown in colour and 30cm in length, 8cm thick and the same width at each end. The maternal grandmother’s conclusions seemed to me to be a substantial stretch of credibility.
In my view it is also significant that details of the child’s alleged statements and actions were inconsistent in the maternal grandmother’s written and oral evidence. A clear example is the alleged incident where the child used the toilet and immediately complained of being inappropriately touched by the paternal grandfather.
In her affidavit the maternal grandmother said:
“Approximately one week later, [the child] was at my house with [the mother]. [The child] was sitting on the toilet and then came out from the bathroom and said to me words like ‘Ami, Tata touched me here, here, everywhere’. [The child] was pointing to different areas of her body, including her mouth, chest and face. I was shocked and I hugged her.”
In her oral evidence the maternal grandmother described this incident as follows:
“Once she went to the toilet and said ‘he touched me’ and opened her vagina and said ‘he hurt me here, here and here’.
In cross-examination the maternal grandmother conceded that there was no mention in her affidavit that the child had “opened her vagina”. She offered no explanation for this significant discrepancy in her evidence. She readily proffered that she believed that the child’s paternal grandfather had touched her inappropriately on her mouth, chest and face.
In my view it is also significant that the child failed to make any disclosure during the JIRT interview, which was part of the reason that the investigation was closed. She also made no disclosure during the second interview by two DOCS officers.
It should be noted that one of these interviewers, Ms H, described her own technique as “extremely leading” but elicited no “disclosure” from the child. It should also be noted that E was 3 years and 6 months old when she made the first “disclosure” on 6 September 2008 and 3 years and 9 months old at the time of the JIRT and DOCS interviews in November 2008.
The paternal grandfather denied that he was ever alone with the child in his bedroom, or anywhere else in the house, during her stay in 2008 while the mother was in Pakistan. He firmly denied that he had touched the child’s breasts, bottom or vaginal area.
The paternal grandfather was criticised because he failed to make enquiries as to the precise nature of the allegations of sexual abuse levelled against him. It was said that this failure reflected poorly on his credit. I do not accept this submission.
The paternal grandfather explained he “did not want to know exactly what I was accused of doing because my wife and all my family knew it was a lie”. It is easy to believe that he was highly embarrassed by the allegations and did not want to discuss the specifics, as was submitted in the father’s case.
In practical terms, the paternal grandfather had little opportunity to sexually abuse the child during her stay in his home. He works as a driver from 9:00am until 7:00pm from Monday to Friday and from 10:30am to 2:30pm on Saturday. He is out of the house from 8:30am until 8:00pm on Monday to Friday and from 10:00am until 3:30pm on Saturday. His wife was on leave from her employment for most of the time when the child was staying in the home. The father worked from 9:30am until 4:00pm from Monday to Thursday and took Fridays as annual leave during the child’s stay. His brother N’s work took him out of the house between 7:30am and 5:30pm.
For all of these reasons I find, to the requisite standard, that the child was not sexually abused by her paternal grandfather, Mr Mohem (Snr). I also find, to the same standard, that there is not an unacceptable risk that the child will be exposed to sexual abuse by her paternal grandfather, while in the care of her father.
It was alleged that the father took the child to the home of his parents, after an order had been made on 27 May 2009 which restrained him from bringing her into contact with the paternal grandfather. The only evidence in support of this allegation was a statement supposedly made by the child to the mother on 12 September 2009. In her affidavit the mother said that, as she was getting the child ready to go with her father she said: “I don’t want to go to Papa”. When she asked why, the child said: “Papa took me to Tata’s place and Tata was there too”… “Tata told me to stay with him but I said no I want to go to Mummy”.
The father denied that he took the child to the home of his parents after the orders of 27 May 2009. I accept that he has not done so. By this time, E’s fear of her grandparents and going to their home was probably well developed. She lived in an environment where her mother and maternal grandmother were firmly convinced that she had been sexually abused and probably reinforced the child’s fears.
It is clear from the Family Report that there are now problems in the child’s relationship with her paternal grandparents. Whether or not her fears and anxieties have a valid basis, she would be very likely to suffer significant distress as a result of a sudden exposure to her paternal grandparents. The Family Consultant said it was “unknown” whether the child would suffer psychological harm if her paternal grandfather is reintroduced to her and added “that would be erring on the side of caution”. She suggested a program of gradual reintroduction of both paternal grandparents, to which I will refer below, in the event that the court is satisfied that the child will be safe in her father’s care.

The Additional Considerations: Section 60CC(3)

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

E is only 4½ years old, thus any views which she may express would carry very limited weight. Nonetheless it is appropriate to have regard to the fact that the Family Consultant reported:“[the child] clearly stated that she wished to spend time with her father…”.
The child also conveyed to the Family Consultant that she did not want to see her paternal grandfather. She reported:
“[the child] was observed to be anxious, reserved and occasionally irritated in the playroom session with her paternal grandparents; made several references to not wanting to see her ‘Tata’ and feared her father may take her to see him. It was not able to be determined if this was due to sexual abuse at the hands of her paternal grandfather, due to coaching by her mother or a general perception [the child] may have gleaned from her mother than her paternal grandparents are ‘bad’”.
It seems to me that the child’s stated view that she does not want to see her paternal grandfather is likely to be a manifestation of the current dysfunction in her relationship with her grandparents. I have referred already to the implacable belief of the mother and the maternal grandmother that the child has been sexually abused. I have also referred to my assessment that the maternal grandmother is prepared to draw inferences from innocuous situations to support her belief of abuse. In this environment, it is little wonder that the child has developed an aversion to her paternal grandfather and the home of her grandparents.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I have referred already to the independent evidence of the Family Consultant as to the nature of the child’s relationship with each of her parents. I am comfortably satisfied that she enjoys a loving, high quality relationship with both her mother and her father.
I have also referred to the Family Consultant’s conclusions as to the nature of the child’s current relationship with her paternal grandparents. I now set out the observations of the child’s interaction with her paternal grandparents which led Ms D to these conclusions:
“When the paternal grandparents entered the playroom, [the child] was observed to become anxious and withdrawn. She looked down and clung to her father. [The father] said reassuringly ‘it’s all right, Tata and Pati ([the child’s] name for her paternal grandmother) want to play with you’. [The child] repeatedly stated ‘I want to go to school, I want to go to school (referring to the court childcare room) in a chanting style’.
The paternal grandmother attempted to connect with [the child] by saying ‘I like your boots’ while the paternal grandfather remained standing. [The child] continued to cling to her father and remained reserved. She was observed to move to the dolls house but did not remain, returning to her father. Her Tata tried to engage with her by asking how one of the toys worked in the sand. She was reluctant so [the father] said ‘we will show Tata’. She agreed and went to the sand tray with her father. [The child] was observed to play with the toy but did not smile or laugh as she had previously with her mother and father.
The paternal grandmother was observed to smile and chat away to [the child], who smiled but held her body stiffly and looked uncomfortable. Eventually the adults all laughed at a remark made by the paternal grandfather and [the child] smiled at their enthusiasm. [The child] appeared to relax and I asked her if she could do a puppet show. Grandmother asked if she could take a character role and [the child] declared ‘no! Papa can come’. Grandmother was later observed to peep through the curtains and tease [the child] who squealed with delight. [The child] played happily at the puppet show for some time.
The paternal grandmother was observed to move to asking a series of questions to [the child] about her scooter and about the puppet show. [The child] appeared irritated and exclaimed ‘stop it’ and moved away. All of the adults appeared confused and did not know how to soothe her. She eventually sat with her grandmother on the couch, sharpening her pencil. Her grandmother kept hugging her and she smiled but did not respond in kind. She was noted to look pleased whenever she interacted with her father but was again irritated when her grandmother was talking with her on the couch, saying ‘stop it, I want to do my work’ to her.
When it was time to finish, [the child] happily said goodbye to her grandmother and father, though she appeared somewhat hesitant to go to the paternal grandfather.”
I cannot identify the reasons for the child’s current wariness towards her paternal grandparents, which appears to be far stronger in relation to her grandfather than is the case with her grandmother. As the Family Consultant speculated, this negativity could derive from the mother’s attitude and her conveying to the child in a general sense that they are ‘bad’. Having seen the maternal grandmother give evidence, I consider it most likely that she has reinforced this negativity. Whatever the reason, my orders must take into account the reality of the child’s present perception of her paternal grandparents.
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The father attempted to suggest that the mother has been uncooperative in facilitating and encouraging the child’s relationship with him. It seems to me to be unproductive to examine the details of these allegations.
The fact is that the mother was faced with concerning statements and gestures made by the child. She took appropriate action to ensure the child’s safety, pending the outcome of the JIRT investigation and the court’s decision. To his credit, the father agreed to refrain from bringing the child into contact with her paternal grandfather until the allegation could be examined in the course of this trial. As noted, an order was made on 27 May 2009 which prevented him from bringing the child into contact with the paternal grandfather.

I have indicated already that I accept that the mother genuinely wishes for the child to have a proper relationship with her father. She may well have overreacted to the child’s statements and gestures and been reinforced in her belief that sexual abuse has occurred by the maternal grandmother. Nonetheless, I detected no malice in the mother’s stance in relation to the sexual abuse allegations.
I am in no position to make any determination as to the veracity or otherwise of the father’s allegations as to the mother’s sustained hostility towards him and his family, because of their Hindu faith and culture. These allegations remained essentially untested.
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It will be to the child’s advantage to resume spending quality time with her father, on the basis that her safety is assured and she is not distressed by a too-precipitous reintroduction of her paternal grandparents into her life. The father and his parents all gave evidence that he is in the process of purchasing his own accommodation in the L area. His parents are assisting him financially with the purchase of a home unit.
In the opinion of the Family Consultant, time with the paternal grandparents should be reintroduced gradually. She suggested that it will be best for the child to spend day periods only with her father alone initially, away from the home of the grandparents. Ms D was of the view that it would be best to introduce the paternal grandmother well before the paternal grandfather. She also considered that it may assist the child to see her father and grandfather “in a different home – Daddy’s home”.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
No relevant considerations arise pursuant to this subsection. The mother has a car and the father’s family provide all necessary transport for him.
section 60CC(3)(f):  the capacity of:
(i)each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It could be said that the father showed a lack of insight into the child’s needs by pursuing a week-about arrangement until the very end of the trial. It was obvious that there were significant disadvantages to orders of this kind, including his work commitments and the child’s current relationship with her paternal grandparents and the imminent introduction of a new partner who is a stranger to her. On the other hand, the father’s oral evidence suggested strongly that he really sought a reinstatement of the prior arrangement whereby the child spent alternate weekends with him.
It could also be said that the father showed a lack of insight into the child’s needs by his plan suddenly to introduce into her life a new partner, who is unknown to her. He intends to marry Ms A, whom he has met once only and with whom he communicates via the internet. He showed little insight in his response to the Family Consultant, when she asked how he knew that Ms A would be a good step-parent to the child. He said: “She will have to get used to it. I have told her my daughter is my pride and joy.”
The father has a criminal record, consisting largely of driving offences. He is currently disqualified from holding a licence until June 2011 and has been declared “an habitual offender”. This criminal history does him no credit. On the other hand he said, and I accept, that he realised that he needed to change his behaviour and act responsibly after the parties’ separation. His last conviction was in October 2005 and he has a steady job, thus he seems to have made good his resolve.
section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
As noted, the child is caught between her parents’ very different religious and cultural backgrounds. I accept that they agreed that she be raised in the Christian faith. It was apparent that the mother’s religion is far more significant for her than is that of the father to him. He said that he is “not very religious” in his affidavit. It thus seems likely to me that they did reach an agreement for the child to be raised in the Christian faith.
On the other hand, the reality is that the child has an Indian Hindu background as well as Pakistani Christian heritage. In my opinion she is entitled to experience the cultural background of her father as well as that of her mother.
The father has consented to orders which restrained him from involving the child in the practice of the Hindu faith on two previous occasions. In these proceedings the mother sought a continuation of this restraint and the father asked for clarification as to the limits of such an order.
I gave serious consideration to refusing to make the order sought by the mother. It is well established that the court does not prefer one religious faith over another. An order relating to the practice of religion would be made only when necessary to safeguard the best interests of a child. On balance, I have decided to make an order in relation to religious observation to protect the child from being exposed to conflict between her parents over this issue. It is unlikely that I would have made any such order over the opposition of the father.
I will make an order that he be restrained from teaching the child the tenets of the Hindu faith or of involving her in the practice of its ceremonies. I make it absolutely clear that this order is not intended as a prohibition on the father and his parents displaying in their homes pictures of Hindu gods or religious artefacts. It is not my intention that the father be prevented from acquainting the child with cultural practices, such as significant festivals.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
The mother made allegations that the father engaged in family violence during the relationship and in the early stages of the separation. These allegations were untested, probably because no such complaints have been made for over three years and more immediate issues of significance featured in the proceedings. I would note also that the father made untested allegations of verbal abuse and physical violence, particularly a scratching of his neck, against the mother.
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
There are no family violence orders in operation.
section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Orders that the child spend time with her father only in a contact centre would almost certainly lead to further litigation. Experience indicates that the facilities of contact centres are made available to parents and children only for a limited period of about six months. Counsel in this matter agreed that this is so. The void which such an order would leave is highly likely to trigger a further application.
It seems to me that orders for a graduated reintroduction of the father and the paternal family into the child’s life would have most prospect of avoiding further litigation. The ICL submitted a well thought out minute which seems to me to achieve this purpose.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

It appears to me that both the father and the mother have tried to fulfil their duties as parents, in very difficult circumstances. Their obvious conflict did not seem to be driven entirely by their personal antipathy toward each other. As noted, they are caught in a cross-cultural situation and have had to cope with allegations of sexual abuse of their child.
On the positive side, the father pays child support of $65 per week and has tenaciously pursued his relationship with the child. It is true that he stopped making child support payments 6 weeks prior to the commencement of the trial. He said that the parties agreed that he would pay child support to the mother in cash when he saw the child. He was not permitted to see her for that period and so had not paid child support. He promised during the course of his oral evidence that he would pay the arrears.
Also on the positive side, the mother did not sever contact between the child and her father completely after the allegations arose. She and the father reached an agreement which enabled the child and her father to spend time together. There were then orders which prevented him from bringing the child into contact with her paternal grandfather, after which the father continued to see her for about 4 months. The mother then ceased all contact after the child complained that she had seen her grandfather in September 2009.

The Presumption of Equal Shared Parental Responsibility

Neither party nor the ICL proposed an order for sole parental responsibility. I see no reason even to contemplate such an order. The child is fortunate that both her parents love her and want a significant involvement in making decisions as to the directions which her life will take as she grows older.
Complaint was raised on behalf of the father as to the circumstances in which the mother enrolled the child in C Public School, where she is to commence her formal education in 2010. It seems to me that she could have taken steps to keep him informed of this process but, on the other hand, she included his details on the enrolment form. She said that she has found it difficult to communicate with the father since the allegations arose, which seems highly likely to be true.

Equal Time and Substantial and Significant Time

As there will be an order for equal shared parental responsibility, I must consider firstly whether it is in the child’s best interests, and reasonably practicable, for her to spend equal time with each of her parents. As noted, the father wisely abandoned his application for a week-about shared care arrangement. It was readily apparent that equal time would not be in the child’s best interests for a number of reasons, including the conflict between her parents, her primary attachment to her mother and practical considerations such as the father’s employment and new relationship.
The proposal of the ICL, which the father adopted, probably would fall short of the definition of substantial and significant time in Part VII of the Act. The fact is, however, that the reality of the situation vis-à-vis the grandparents must be addressed in the orders which I make. The Family Consultant made it completely clear in her oral evidence that the child “has real fears” in relation to her paternal grandparents and their home. That being so, any greater time than is prescribed in the ICL’s sensibly formulated proposal seems to me to be highly likely to conflict with the child’s best interests. I will make orders which substantially reflect the proposal of the ICL.

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 27 October 2009

[2009] FamCA 1367

27 October 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness