Pacey and Earehart

FAMILY COURT OF AUSTRALIA

PACEY & EAREHART

[2012] FamCA 957

FAMILY LAW - CHILDREN - With whom a child spends time - Where there are allegations of abuse of the child by the Father - Where the Father does not pose an unacceptable risk of harm to the child

Family Law Act 1975 (Cth)

B & B (1988) FLC 91-957
M v M (1988) 166 CLR 69

APPLICANT:

Mr Pacey

RESPONDENT:

Ms Earehart

INDEPENDENT CHILDREN’S LAWYER:

Ms J Boulton

FILE NUMBER:

BRC

3450

2009

DATE DELIVERED:

20 November 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

14, 15 and 16 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Black

SOLICITOR FOR THE APPLICANT:

Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

Kerry Barnes Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

Orders

The child, A, born …2006 (“the child”) lives with Ms Earehart (“the Mother”).
The Mother has sole parental responsibility for the child, however:
(a)       The Mother must consult Mr Pacey (“the Father”) about major long-term decisions regarding the child’s health and education;
(b)       The Mother must take account of the views of the Father before making such decisions;
(c)       Neither the Mother nor the Father, nor any other person at their behest or direction, may relocate the child’s residence to a location outside the Commonwealth of Australia without the consent of both the Mother and the Father, and an injunction to that effect is hereby issued;
(d)       Each party shall have parental responsibility for day-to-day decisions concerning the child when she is in that party’s care.
Unless agreed otherwise by the parties, the child spends time with the Father as follows:
(a)       For two weeks commencing Saturday 24 November 2012:
(i)From 9.00 am until 5.00 pm each Saturday with the Mother to drop off the child at 9.00am at the Father’s residence and the Father to drop off the child at 5.00 pm at the Mother’s residence;
(b)       For two weeks commencing Saturday 8 December 2012:
(i)From 9.00 am until 5.00 pm each Saturday and Sunday the Mother to drop off the child at 9.00am at the Father’s residence and the Father to drop off the child at 5.00 pm at the Mother’s residence;
(c)       Commencing Saturday 22 December 2012:
(i)Until the child commences school in 2013:
A.Each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday with the Mother to drop off the child at 9.00am on the Saturday at the Father’s residence and the Father to drop off the child at 5.00 pm on the Sunday at the Mother’s residence;
B.Each Wednesday evening from 4.00 pm on Wednesday until 9.00 am on Thursday, with the Mother to drop off the child at the Father’s residence at 4.00 pm on Wednesday and the Father to drop the child off at the Mother’s residence at 9.00 am on Thursday;
(ii)Once the child has commenced school in 2013, commencing the weekend following the child’s first week at school:
A.Each alternate weekend from after school Friday until before school on Monday, with the Father to collect the child from school on Friday afternoon and drop off the child to school on Monday morning;
B.Each Wednesday from after school on Wednesday until before school on Thursday, with the Father to collect the child from school on Wednesday and drop her off again on Thursday morning;
(d)       Order 3(c)(i) is to continue throughout the school holiday periods in 2013, until the Christmas holiday period in December 2013-January 2014, at which time the following regime of time shall apply for all subsequent school holiday periods:
(i)In odd-numbered years (including the holidays commencing December 2013) A shall spend the first half of the June/July and Christmas holidays with the Mother, with the Mother to collect the child from the final day of school each term and to drop the child at the Father’s residence at 9.00 am on the first day of his ‘half’ of each of those holiday periods;
(ii)In odd-numbered years (including the holidays commencing December 2013), the child shall spend the second half of the June/July and Christmas holidays with the Father, with the Father to drop the child off at school on the first day that her school term commences;
(iii)In odd-numbered years, the child shall spend the first half of the Easter and September/October school holiday periods with the Father, with the Father to collect the child from her last day of school and to drop her off at the Mother’s residence at 9.00 am on the first day of her ‘half’ of each of those holiday periods;
(iv)In odd-numbered years (including the holidays commencing December 2013), the child shall spend the second half of the Easter and September/October holidays with the Mother, with the Mother to drop the child off at school on the first day that her school term commences following that holiday period;
(v)In even-numbered years (including the holidays commencing December 2014) the child shall spend the first half of the June/July and Christmas holidays with the Father, with the Father to collect the child from the final day of school each term and to drop the child at the Mother’s residence at 9.00 am on the first day of his ‘half’ of each of those holiday periods;
(vi)In even-numbered years (including the holidays commencing December 2013), A shall spend the second half of the June/July and Christmas holidays with the Mother, with the Mother to drop the child off at school on the first day that her school term commences;
(vii)In even-numbered years, the child shall spend the first half of the Easter and September/October school holiday periods with the Mother, with the Mother to collect the child from her last day of school and to drop her off at the Father’s residence at 9.00 am on the first day of her ‘half’ of each of those holiday periods;
(viii)In even-numbered years (including the holidays commencing December 2013), the child shall spend the second half of the Easter and September/October holidays with the Father, with the Father to drop the child off at school on the first day that her school term commences following that holiday period;
The child is to communicate with the Father by telephone each Sunday at 5.00 pm that the child is not otherwise spending in the Father’s care. The Mother is to initiate those telephone calls.
Unless otherwise agreed between the parties:
(a)       The child will spend Christmas Day with the Mother in even-numbered years (including 2012), and will spend Christmas Day with the Father in odd-numbered years (from 2013 onwards);
(b)       The child will spend Boxing Day with the Mother in odd-numbered years (commencing 2013) and Boxing Day with the Father in even-numbered years (commencing 2012).
(c)       On the child’s birthday, the child shall spend from 3.00 pm (or from the end of the school day if her birthday falls on a school day) until 7.00 pm with the parent with whom she is not then otherwise spending time, with that parent to collect and drop off the child at the commencement and end of that time;
(d)       On the Mother’s birthday, if the child is not otherwise spending time with the Mother, the child shall spend from 3.00 pm (or from the end of the school day if the Mother’s birthday falls on a school day) until 7.00 pm with the Mother, with the Mother to collect and drop off the child at the commencement and end of that time;
(e)       On the Father’s birthday, if the child is not otherwise spending time with the Father, the child shall spend from 3.00 pm (or from the end of the school day if the Father’s birthday falls on a school day) until 7.00 pm with the Father, with the Father to collect and drop off the child at the commencement and end of that time.
Pursuant to s 65L of the Family Law Act 1975 (Cth), Ms D, Family Consultant, shall provide such assistance to the parties and to the child as to the implementation and maintenance of these orders as is reasonably required.
Each party have liberty to apply as to the implementation of these orders on the giving of seven (7) days’ notice to the other party.
The Independent Children’s Lawyer be discharged upon the later of the expiration of the appeal period in respect of these orders or the hearing of any appeal.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pacey & Earehart has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3450 of 2009

Mr Pacey

Applicant

And

Ms Earehart

Respondent

REASONS FOR JUDGMENT

Introduction

By his Initiating Application filed 2 November 2010, Mr Pacey (“the Father”) commenced parenting proceedings concerning his daughter, A (“the child”), who was born in November 2006 and is thus now almost six years of age.
On 3 December 2010, Ms Earehart (“the Mother”) filed a Response and supporting affidavit material as well as a Form 4 Notice of Child Abuse or Family Violence alleging that the Father had sexually abused the child. The Father has adamantly refuted those allegations throughout the proceedings.
An Independent Children’s Lawyer, Ms Jennifer Boulton, was appointed in this matter on 8 December 2010.
By the conclusion of the trial, the Father sought Orders that in the immediate term, the child live with the Mother but spend each Wednesday night and alternate weekend with the Father. The Father then submitted that a graduated increase in that time ought occur such that, within a reasonable (but unspecified) period of time, the child would be spending seven non-consecutive nights out of fourteen with the Father (Tuesday to Thursday in week one and Monday to Wednesday and Friday to Monday in week two). The Father sought that such an arrangement continue until the child reached ten years of age, at which point he proposed that a week about shared care arrangement ought commence. The Father’s proposal was based upon the premise that the Court would find that the Father did not pose an unacceptable risk of harm to the child, and no proposal was put forward by the Father if the contrary was found.
The Mother’s position was that, should it be found that the Father was an unacceptable risk to the child, the child ought live with the Mother and spend only supervised day time once a week with the Father (similar to the contact that has been occurring over the previous two years). However, if this Court found that the Father was not an unacceptable risk to the child, the Mother proposed Orders that the child ought spend four day time hours with the Father once a week for four months and then eight daytime hours (between 9.00 am and 5.00 pm) once a week for a further eight months, with a review to be held at the end of that twelve month period as to whether overnight time between the child and her father was appropriate.
The Independent Children’s Lawyer proposed two sets of Orders at the conclusion of the trial of this matter (filed 23 December 2011). In the event that this Court found that the Father posed an unacceptable risk to the child, the Independent Children’s Lawyer proposed that the child live with the Mother and that there be no formal Orders as to the time the child spends with the Father. In the event that this Court found that the Father was not an unacceptable risk to the child, the Independent Children’s Lawyer submitted that Orders ought be made so that there is a graduated increase in the child’s time with the Father over a one month period to two overnights per week for twelve months (each Wednesday and Sunday night) and then four overnights per fortnight thereafter (each Wednesday in week one and each weekend in week two).
As is already evident, despite there being several areas of factual dispute between the parties, the central issue in the trial of these proceedings was whether or not the Father had sexually abused the child and/or was at risk of abusing the child in the future should she spend unsupervised time in his care.

Background

The Father was born in 1972 and is thus now 40 years of age. The Father has historically worked as a school teacher; however, in 2007, the Father took long service leave from teaching on the basis of stress, and despite attempting to return to teaching in late 2007/early 2008, resigned in April 2008 and worked in as a Trainer for an online company for approximately two years before returning to teaching in May 2010. [1] At present, the Father is working as a school teacher on a casual basis whilst pursuing further university study.
[1] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 25.
The Mother was born in 1980 and is thus now 32 years of age. The Mother is also employed as a school teacher and presently works full-time at B School.
The parties commenced cohabitation in March 2003 and were married in June 2005. As already noted, the only child of their relationship, A, was born in November 2006. The parties separated on a final basis in approximately November 2007.
Since separation, the Father has resided in his parents’ home save for a brief period between October 2010 and January 2011 when he lived with his then-partner, Ms W, and her three children. However, that relationship ended in January 2011 and the Father has since returned to his parents’ home and has not repartnered.
The Mother presently resides in her own home with the child, and although she deposes in her 11 July 2011 affidavit that she has not repartnered since her separation from the Father and is, “…a single woman,” it is noted that at paragraph 156 of that same affidavit, the Mother refers to having begun to casually date. The Father’s 3 August 2011 affidavit raises that the child has told the Father, “…of a “Mr G” and that she has a “New sister”.” The Mother gave oral evidence that Mr G was someone she had been dating for approximately one year at the time of trial and that Mr G stayed overnight at her house approximately every two to three weeks. No evidence from “Mr G” was provided for the purposes of this trial.
The Father deposes that no parenting arrangements were made at the time of separation and that he initiated contact with the Mother to facilitate his spending time with the child.[2] The Father further deposes that there was no set arrangement, and that instead he spent, “…meaningful time with the child two or three times a week, ranging from a couple of hours to a day.”[3] The Mother disputes this, contending that the Father spent time with the child approximately once a week in the period following the parties’ separation.
[2] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 30 to 31.
[3] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 33.
Following Legal Aid facilitating a mediation between the parties in August 2008, final consent Orders regarding parenting arrangements for the child were made on 2 October 2008 in the State Magistrates Court.[4] Such Orders provided for the parties to have equal shared parental responsibility, with the child to live with the Mother and spend time with the Father which gradually increased the time the child would spend with the Father over a twelve week period, starting at one overnight each week and culminating in the child spending time with the Father each Wednesday and on alternate weekends.
[4] See Annexure “1” to the Affidavit of Ms Earehart filed 11 July 2011.
Given the child’s age at the time of the consent orders (the child at that time being less than two years of age), the Orders also included a Notation, which provided that:
It is noted, that these Orders will be reviewed when the child turns 3, for the purpose of seeing whether any new parenting arrangements need to be made.
Despite this notation, no such review occurred following the child’s third birthday in November 2009. The Father deposes that his attempts in early 2010 to discuss changing parenting arrangements for the child to, “…50/50,” (and by that I infer the Father was seeking a week-about shared care arrangement) were definitively rejected by the Mother.[5] The Mother, despite deposing that she did not make the inflammatory remarks regarding the Father’s then-partner as the Father alleges, confirms in her affidavit filed 3 August 2011 that the Father did approach her about increasing his time with the child and that she rejected that request because, “…I thought he had enough time with [the child] as it was.” In that affidavit, the Mother also refers to her concerns about increases in the child’s behavioural problems around that period and the Father’s alleged failure to comply with the Mother’s request to put any request for increased time with the child in writing.
[5] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 37.
A mediation of this issue in April 2010 did not proceed due to the production by the family dispute resolution practitioner from Relationships Australia of a s 60I Certificate dated 30 April 2010, certifying that the matter was unsuitable for family dispute resolution. Both parties depose that they personally did not seek such a Certificate, and I therefore infer that it was produced at the initiative of the centre itself. No specific reason for such certification is provided in the Certificate; however the Mother deposes at paragraph 21 of her affidavit filed 3 August 2011 that, “To the best of my knowledge, that was because of the sexual allegations that had come to the foreground at that point in time.” This is an unusual deposition given that the Certificate was issued in April 2010 and the Mother did not notify the Father of the allegations until October 2010, and nor was any such allegation ventilated in Court documents by the Mother until early December 2010.
A continued to spend time with the Father pursuant to the 2 October 2008 consent Orders until 4 October 2010, a day on which the Father was due to collect the child from day care to spend time with him. On that day, the Father received a text message from the Mother prior to the time he was due to pick up the child stating: [6]
[The child] is not at Day Care today. Due to concerns about her safety, I am stopping access at this point.
[6] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 50.
The Father requested the following day that the Mother detail the, “…safety concerns…” she had regarding the child being in his care so that he could, “…rectify them so that I can have access to my daughter,”[7] and the Mother responded via e-mail as follows:
[Mr Pacey],
[The child] has made statements concerning being dealt with in an inappropriate way whilst in your care. These statements were of a sexual nature. After these statements, [the child] was seen by her GP and was referred to a Child Psychologist. The Department of Child Services has been notified of these concerns and in order to assist [the child], she has been placed on a Mental Health Plan to deal with resulting stress and anxiety.
For the above reasons, I am not able to honour our Custody Orders whilst the matter is being investigated. You will shortly receive official legal correspondence giving you more detail regarding this matter.
[Ms Earehart]
[7] Affidavit of Mr Pacey filed 11 July 2011 at paragraph 52.
The following day, 6 October 2010, the Father contacted the Department of Communities, Child Safety and Disability Services (“the Department”) and was advised that no notification had been made. The Father deposes in his affidavit of 11 July 2011 that, “I have since not been contacted by any representative of the Department of Communities (Child Safety) nor the Child Protection Investigation Unit ….”

On 13 October 2010 the Father received a letter from the Mother’s solicitors (dated 6 October 2010) in respect of the Mother’s concerns. The letter also advised the Father to notify the CC Contact Centre to arrange time with the child on a supervised basis (see Annexure “E” to the Affidavit of the Father filed 11 July 2011).
With the Mother’s knowledge, the Father commenced spending time with the child at a day care centre between 10 October and 7 December 2010. Both the paternal grandmother, Ms P, and the paternal aunt, Ms T, commenced spending time with the child at day care in approximately January 2011 and March 2011 respectively. I also note that the paternal grandmother deposed in July 2011 that she had been spending time with the child for approximately two hours every week:[8]
…save when the Respondent mother prevented my time with her by not allowing me to attend the Day Care prior to Christmas 2010 and just after the release of the Family Report in April 2011.
[8] Affidavit of the paternal grandmother filed 11 July 2011 at paragraph 5.
On 8 December 2010 the parties entered into Consent Orders before Federal Magistrate Howard. Those Orders provided for the child to live with the Mother and to spend day time with the Father from 3.00pm to 7.00pm on Christmas Day supervised by the paternal grandmother at her residence and, following that, supervised time at HH Centre for three hours each Saturday. Unfortunately, due to a lack of capacity, the Father has only been able to see the child at HH Centre for two hours each fortnight from January 2011 onwards.[9]
[9] See paragraph 4 of the affidavit of Ms D, filed 24 March 2011, annexing her Family Report.

Statutory Framework and Application

Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)) as well as the principles which underlie those objects (s 60B(2)).
Section 60CA of the Act requires that, in deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

The Parties’ Proposals

As noted earlier, the Father proposes that his time with the child immediately revert to the each Wednesday night and alternate weekend arrangement which existed prior to the suspension of time by the Mother in October 2010, with that gradually increasing to seven non-consecutive nights per fortnight (Tuesday to Thursday in week one and Monday to Wednesday and Friday to Monday in week two) until the child turns 10 years of age, at which point the Father submits that a week-about arrangement ought commence. This, evidently, is premised upon this Court finding that the Father does not pose an unacceptable risk to the child. The Father does not propose any Orders should a finding to the contrary be made.
Should I find that the Father does pose an unacceptable risk, the Independent Children’s Lawyer and the Mother both propose that the child live with the Mother and that the Mother have sole parental responsibility. The Independent Children’s Lawyer does not propose that any Orders for time with the Father be made in that event, whilst the Mother would support a continuation of limited supervised time in the style of that which has occurred between the child and the Father since October 2010.
Should I find that the Father does not pose an unacceptable risk, the Independent Children’s Lawyer proposes a four week period of twice-weekly day time contact from 9.00 am to 5.00 pm, moving to two overnights per week for the next twelve months (one week night and one weekend night) and for four overnights per fortnight for the period thereafter (one week night in week one and the whole weekend in week two). Counsel for the Independent Children’s Lawyer also indicated that the Independent Children’s Lawyer was not opposed to bringing forward the concept of alternate weekends earlier than twelve months following the making of final Orders on the basis that that would reduce the potential for conflict between the parents at changeovers. Orders for post-separation parenting programs and for a family consultant (preferably Ms D, the family consultant in this case) to supervise the carrying out of the Orders under s 65L were proposed. The Independent Children’s Lawyer, although supporting equal shared parental responsibility in this scenario, also agreed with the suggestion that should the parents be unable to agree, the Mother ought have the ‘final say’ in major long-term issues affecting the child.
Counsel for the Mother, by contrast, sought in final oral submissions that should this Court find that the Father does not pose an unacceptable risk of harm to the child, the Father ought spend four hours once a week with the child for four months, and then eight hours once a week with the child for a further eight months, with a review of the Orders at the end of the twelve month period to determine if overnight time may be appropriate from that point onwards. In that event, the Mother also proposes shared parental responsibility, but states that should agreement be unable to be reached between the parties, “…then the Mother is to make such decision and thereafter implement same.”[10]
[10] Minutes of Consent Orders proposed on behalf of the Mother, dated 21 December 2011, p 2.
By the conclusion of the trial, the Independent Children’s Lawyer contended for a finding that the Father does not pose an unacceptable risk to the child, as does the Father, while the Mother contended that the Court ought find that the Father does pose an unacceptable risk of harm to the child should she spend unsupervised time in his care. The submissions supporting those respective positions will be explored further below.

Section 60CC(3) Considerations

With regards to the child’s views (s 60CC(3)(a)), a Family Report was prepared in this matter by Ms D, a Family Consultant attached to the Court. At the time of interview, A was only aged 4 years, 3 months.
Ms D records the following:
37. [The child] reported during her interview to be desirous of spending time with her father at his home with the paternal grandparents. She indicated that she is “sad” that this does not occur and asked when she would be “happy” again. [The child] was able to recall that she has not been to her father’s house since was (sic) three years in age which she demonstrated with the correct number of fingers. She advised (sic) to have “fun” at [HH Centre].
38. [The child] indicated that it would make her “happy” to spend time with her father at his house.
I note that Ms D comments that, “Whilst [the child] was observed to have the ability to express herself verbally, the clarity and elocution of her words was not always clear.” In the context of those observations and the child’s tender age, I find that I cannot place decisive or significant weight upon the views expressed by the child in my determination as to her best interests.
It does not appear to be contested by either party that the child has the benefit of a secure relationship with both of her parents (s 60CC(3)(b)). In her Family Report, Ms D records the following:
36. [The mother] reported that [the child] visits her father willingly and that [the child] is “happy to see him.” This is consistent with observations during this assessment. [The mother] advised however that [the child] still has some problems with wetting herself after visits.
…
41. [The child] was observed to have a secure attachment to both of her parents. She separated from her mother with little fuss and moved between the parents in a similar fashion. She would however ask when she was going to see her father again and was disappointed when he had to leave.
42. Both parents interacted with [the child] in a child focussed fashion, and played with her on her level. This was to be expected given their respective profession (sic). [The child] appeared comfortable and secure in both parents’ company and showed no signs of fear, stress or anxiety.
The Mother herself gave oral evidence that although the child was occasionally upset when she was to see the Father, the Mother attributed this more to separation anxiety in relation to leaving the Mother’s care than wariness as to spending time with the Father. The Mother also acknowledged that although she has deposed to numerous instances when the child had returned from the Father’s house unhappy, that this could be because the child misses the Father and wants to spend time with him. This is supported by the Mother’s further oral evidence that the child, “…used…” to tell the Mother that she wanted her parents to be like it used to be with both of them living in the one place.
Ms U, the psychologist the child had been seeing for some time, gave evidence that when the child drew pictures of her father, she had the same, “…excited…” reaction as when she drew pictures of her mother. I note that I have concerns regarding some of Ms U’s conclusions, which are explored further below, but I do not cavil with the accuracy of her recorded observations in this respect.
I find that the child has a meaningful and secure relationship with both her mother and her father. The history of regular visits by each of the respective sets of the child’s grandparents reported by both parties also appears to indicate that the child has a positive relationship with her extended family on both the paternal and maternal sides.
There are, however, some questions raised by the Father and his extended family about the Mother’s willingness and ability to facilitate and encourage the child having a close and meaningful relationship with both of her parents (s 60CC(3)(c)).
The clearest example of this is the Father and his family’s attitude towards the allegations of sexual abuse made by the Mother. The central thrust of the evidence of the Father and his parents was that they believed that the Mother’s allegations of sexual abuse and her cessation of contact between the child and the Father were part of a ‘malicious’ attempt on the Mother’s part to limit the time the child was able to spend with her father.
The Father makes comments to this effect in both his 11 July 2011 and his 3 August 2011 affidavits. In the latter, he deposes at paragraph 2(ll):
I do not agree that the Respondent mother has only acted as a ‘protective mother’. The Respondent mother engaged the child in counselling and medical intervention without consultation to me. She waited some time after the child made alleged disclosures to her, before ceasing my time. She took no action in addressing her concerns in the Family Court. Instead, continuing (sic) to subject the child to further counselling and intervention, without any proper investigation into her allegations through the normal channels.
The Father further deposes in his affidavit filed 11 July 2011 that the Mother has historically been obstructive regarding him increasing the time he spends with the child. He records as follows:
34. In early 2008 and thereafter, I experienced difficulty in spending time with the child outside of spending time with the child at Day Care. The Respondent mother said to me words to the effect “You are not having access. You are not having any more time with [the child]”. I asked her “Why?” She was dismissive of me and never proffered any reason to me. She did not even say to me that I could see the child at Day Care. I, merely because of the Respondent mother’s attitude towards me, attended at Day Care and spent time with the child there. The Respondent mother did not make an issue of that at all.
…
37. These Orders were followed and complied with other than for the notation for the review. After the child attained the age of three years in November, 2009, and at the commencement of 2010, I approached the Respondent mother at a Saturday changeover and sought that we discuss a new parenting arrangement for the child... I said to her, words to the effect of, “Can we discuss about possible changes to [the child’s] access to 50/50”. The Respondent mother verbally attacked me at a changeover in a raised voice and said to me, “You have plenty of time with her! I don’t see any reason why the Orders should be changed! Also, you are living with it and her three boys!” By “it” the Respondent mother was referring to my then girlfriend. The child was present and heard the Respondent mother’s tirade against me. …
…
70. I say that after further considering the email communication from the Respondent mother dated 5^th October 2010 and the letter from the Respondent mother’s Solicitors dated 6^th October 2010, the allegations were not specifically directed at me but time has been denied by the Respondent. I feel very suspicious about the allegations made to me and the sequence of events leading up to the allegations as the Respondent mother made it perfectly clear to me by her actions or inactions that she did not want my time increased with the child and, indeed, she stalled every process since separation.
71. There was no issue of domestic violence between us and issues of child abuse were raised when, and only when, I sought an equal shared care arrangement for the child between us.
Under cross-examination by Counsel for the Mother, the Father also gave oral evidence that he “…did not know…” if the sexual abuse allegations amounted to the Mother acting, “…maliciously…” regarding the Father, but conceded that he had told the Family Consultant that the Mother, “…was asking open-ended questions to lead her daughter and she may have been acting maliciously to do so.”
The paternal grandfather, Mr P, made depositions which similarly insinuated a less than protective motive on behalf of the Mother in his affidavit filed 13 July 2011:
…I struggle to understand how the Respondent mother continued to allow contact to occur, if she genuinely believed that any sexual abuse of any nature had occurred.
The paternal grandfather also gave oral evidence that he believed that the Mother had made sexual abuse allegations against the Father to, “…influence…” this court case and that the allegations were, “…malicious…” in the sense that they were not true.
The paternal grandmother similarly gave oral evidence that she believes that the Mother’s allegations of sexual abuse are malicious and, “…made up…” by the Mother.
I also note that the Mother, as would be expected in a situation where the parties are separated and allegations of sexual abuse have been raised, makes negative comments about the Father’s behaviour and attitude towards parenting. She also deposes in her affidavit filed 11 July 2011 that she believes from the child’s statements to the Mother that the Father’s extended family may have been causing the child distress by discussing their inability to see her with the child. The Mother further deposes to the Father making and responding to inappropriate comments regarding herself on Facebook. The Father accepted that the comments made by his friends, and his responses, were inappropriate, and I find that those comments represent the high degree of animosity felt by the Father towards the Mother. However, there are no allegations that the Father or his extended family have denigrated the Mother or her extended family in front of the child or that the Mother has exposed the child to her negative views of the Father.
I note in particular my finding above that the child appears to continue to have a close and meaningful relationship with both of her parents. Evidently, these parents and grandparents have thus far been insightful enough to avoid burdening the child with their distrust or dislike of each other, thus preserving the child’s positive relationship with each parent. To that extent, I find that the Father and the Mother are capable of facilitating the child having a meaningful relationship with each of her parents.
As to the effect of any Orders causing changes in the child’s circumstances, including the likely effect of separation of the child from her parents and extended family (s 60CC(3)(d)), I note that both parties are proposing a graduated reintroduction of the Father’s contact (in the event that I find that the Father is not an unacceptable risk), albeit at different rates. In the event that I find that the Father does not pose an unacceptable risk of harm to the child, both the Mother and the Independent Children’s Lawyer propose that no change to the existing regime of supervised contact occur (the Father proposed no Orders in that event).
I note with particular concern that beyond the immediate period after these Orders, during which the Father proposes that his time with the child return to each Wednesday night and alternate weekends, the Father proposes a two week cycle of contact with the child until she reaches ten years of age, with the child spending after school on Tuesday to before school on Wednesday with the Father in week one and from after school on Monday to before school on Wednesday and from after school on Friday to before school on Monday in week two. This would involve six changeovers every fortnight.
This high number of changeovers is of concern given the affidavit of Ms U, child psychologist, filed 11 July 2011, which recorded that the child exhibited elevated symptoms of, amongst other symptoms, anxiety, depression and anger. Although I have concerns with some aspects of Ms U’s evidence (which will be discussed further below), neither party contended that the child has not had increased levels of anxiety since the parties’ separation (despite differing as to its cause). Continually changing households may only serve to heighten the anxiety already experienced by the child.
I take into account that the Family Consultant, Ms D, gave oral evidence that in order to ensure the security of the relationship between the child and the Father, it was important for the Father to, “…touch base…” with the child every two to three days during her younger years, and Counsel for the Father submitted that this was the basis for the Father’s proposed fortnightly regime of time until the child turned ten years of age. However, under cross-examination by the Independent Children’s Lawyer, Ms D indicated that ‘touching base’ simply amounted to spending some time with the child, and could be simply an afternoon or an evening spent with the Father as well as overnight time. However, I also note the submissions of Ms Black, Counsel for the Father, that the emphasis on overnight time which involved changeovers at the school was designed to reduce the potential for face to face contact between the Mother and the Father who, both parties acknowledged, have been unable to communicate positively for a significant period of time.
I find that Orders that minimise the face to face contact required between the parties but nonetheless ensure regular contact between the child and both of her parents whilst also minimising the number of changeovers the child is required to undergo will be Orders that are in the child’s best interests, although the specific form of such Orders is dependent upon my findings as to whether the Father poses an unacceptable risk of harm, discussed further below.
Given the parties’ respective locations (being K suburb for the Mother and M suburb for the Father) are only some 22 kilometres apart, there no practical difficulties or unreasonable expenses involved in the child spending time with both of her parents. However, I note that although the Mother currently works full-time as a teacher, the Father has been engaging in casual supply teacher work whilst, in 2012 at least, studying full-time at university. He therefore has reduced funds available to him. This is of note should the Father’s contact with the child continue to be required to be supervised. Although the cost of supervision at HH Centre is not prohibitive, that environment will not be suitable on a permanent basis, and thus, should supervision be required in the long-term, the question of the cost of using a private supervisor is raised.

In terms of the capacity of each of the child’s parents to provide for the child’s needs and their maturity, sex lifestyle and background (ss 60CC(3)(f) and (g)), it is not disputed (putting to one side for the moment the allegations of sexual abuse) that both parents can care physically for the child.
The Mother did raise, under cross-examination, some concerns about the level of supervision in the Father’s (and his parents’) home given that the child had swallowed a 10 cent coin while staying there; however, I do not find that this evidences an inability on the Father’s part to appropriately care for the child. He informed the Mother of the incident within a reasonable period of time to ensure that any physical consequences of her swallowing the coin were dealt with effectively once the child had left his care.
The Father, however, raised in his oral evidence the question of whether the Mother is capable of providing for the child’s emotional needs, and expressed his opinion that the Mother’s alleged belief that the child had been sexually abused and her conduct in taking the child to a series of medical and other professionals as a result had caused unnecessary confusion in and thus emotional harm to the child. This is, as noted above, in the context of the allegation by the Father and his extended family that the Mother’s allegations in this respect may be “…malicious…”
However, I find that the Mother has not, in fact, acted ‘maliciously’ in making the relevant allegations of sexual abuse against the Father, a finding supported in submissions by Counsel for the Independent Children’s Lawyer. I note, as all parties did, that the child first mentioned the, “…naughty stick…” to her mother on 1 April 2010, but that the Mother did not in fact cease contact between the child and the Father, including overnight contact, until 4 October 2010, a gap of some six months. However, having seen the Mother give evidence under cross-examination, I accept her assertion that her reluctance to cease contact between the child and the Father was based upon caution, on her part, in making such a serious allegation as she eventually did given her knowledge of the consequences of such allegations (she being a school teacher herself), and advice from professionals such as those at the Department that the information the child had provided was insufficient to warrant further investigation by them.
I also note that the child’s general practitioner, Dr H, likewise did not recommend to the Mother that contact between the child and the Father ought be ceased even after the child disclosed to Dr H on 16 April 2010 that, “Daddy put a stick there,” while pointing to her vagina. It is also relevant that Dr H did not see the need to notify the Department of the disclosure, despite being obliged to do so if she had child protection concerns. Dr H gave oral evidence that this was because she believed that issue, “…was being taken care of,” as behavioural complaints were not raised by the Mother in visits subsequent to November 2011.
In that context, where professionals had not acted upon the child’s disclosures as a serious concern, it is understandable that the Mother was confused about the appropriate action to take. Those factors, combined with the Mother’s presentation as a genuine witness, underpin my finding that the Mother did not act maliciously or with disregard for the child’s emotional well-being in making the allegations of sexual abuse against the Father and in seeking treatment for the child in respect of those allegations. I further find that should this Court find that the Father is not an unacceptable risk to the child, the Mother will be capable of processing such a finding and continuing to promote the child’s emotional development. This is reflected in both her affidavit and oral evidence, in which she stated that should the Court make a finding that the Father did not pose an unacceptable risk of harm to the child, the Mother would accept that finding and comply with any parenting Orders subsequently made. I do note that the Mother made statements under cross-examination to the effect that she did not accept that the Father may not have done anything wrong; but from her subsequent statements I find that this referred more to her concerns, regardless of any sexual abuse allegations, of the Father’s alleged inability to respect appropriate social and physical boundaries with the child.
Those allegations includes incidents of the Father asking the child to lick food off his fingers and kissing the child on the lips at HH Centre. The Father accepted in his oral evidence that he had asked the child to lick cheese and yoghurt off his fingers when he had used his finger to get the last part of cheese or yoghurt out of a container, and contended that although this may have been misinterpreted by the contact centre staff, he had changed his behaviour since reading of their concerns in their subpoenaed notes. In relation to the allegations of kissing the child on the lips, the Father accepted that he does this but maintained that this was nothing out of the ordinary. The Father, however, rejected the assertion in the contact centre notes that he had forced the child to kiss him when she had turned her head away to avoid doing so.
I note that at paragraph 121 of her 11 July 2011 affidavit, the Mother notes:
121. On Friday the 6^th May 2011, I was approached by Ms [Z] and the Director Ms [L] about [the child] and her friend playing a kissing game during lunch time. I was told that [the child] started licking her friend on the mouth. When asked to stop, [the child] said “Tongue kissing is lots of fun”. I told the day care centre that [the child] sometimes likes to play a game where she will try to lick kiss me at home. I said that I try to discourage [the child] from doing that.
In that paragraph, it is evident that the the child was in the habit of kissing or licking people on the mouth and that, as the Father gave evidence, this is nothing out of the ordinary for the child. However, I find that the Father, having been informed that such behaviour is inappropriate, will take steps to remedy his behaviour for future contact, especially as the child matures.
Another issue in this trial was the Father’s ability to cope with stressful situations, particularly in the context of his seeking to care for the child on essentially an equal time basis. The Father readily admitted to having had problems with stress and depression in his past, and deposed to having taken stress leave from teaching in late 2007 (at around the same time his relationship with the Mother ended and when the Father deposes to significant personal and financial stressors existing) and then resigning in 2008 prior to recommencing teaching in 2010. The Mother asserts that the Father will again be subject to increased stress upon his return to teaching over the next few years and that such stress will be greater than that he has experienced in the past given that he will now be educating older students.
However, it must be noted that the Father’s stated intention is to remain living in the home of his parents for at least the next one to two years. In that context, the Father would have the support of both of his parents, as he has done previously, to cope with the raising of the child. I note that although the Father admits there has been conflict between himself and his parents over differing parenting styles in the past (in the period immediately post-separation), this was not raised by either the Father or the paternal grandparents as an issue at present or one they anticipated to arise again in the future. I find that, with the support of his extended family, the Father ought to be able to cope with caring for the child and thus to be emotionally available to her as a parent. I also note that the Father appears to have been capable of recognising stress in his life and acting to deal with that stress in the past by taking leave or changing his form of employment, and that provides the Court with some comfort as to the Father’s ability to recognise and appropriately deal with stressful situations which may arise in the future.
Both parents, being school teachers, are obviously capable of adequately attending to the child’s intellectual needs.
In terms of the considerations set out in ss 60CC(3)(i) and 60CC(4) and (4A), it is not alleged by either parent that the other has not taken seriously their responsibilities as a parent. The most that can be said about these considerations is that it is evident, and both parents acknowledge, that there is a dearth of effective communication between them about the child and her needs. The Mother gave oral evidence that she did not feel the need to consult with the Father about many of the child’s medical problems and that she simply dealt with them herself as they arose, and, more concerningly, gave evidence to the effect that it did not occur to her to raise her concerns regarding the child’s sexualised behaviours or behavioural problems with the Father or to ask him about possible causes. I note Ms D records in her Family Report:
25. [The mother] further advised that by not raising any issues she had regarding [the child] with [the father] prevented conflict. She reported that [the father] viewed any such response from her as her being controlling, and thus, she would follow up on matters (e.g. bruising on [the child’s] body) independent of him, “I didn’t usually bring it up. I would just deal with it. There wasn’t any communication if anything (sic) happen with her.”
This is something which, it can be hoped, may improve following the finalisation of this matter. Otherwise, there is no allegation that either the Father or the Mother has not taken opportunities, where available, to spend time with and communicate with the child. Rather, the assertions (accepted to a certain degree, as discussed above, by the Mother) are that attempts by the Father to spend more time with the child were rebuffed by the Mother.
A key issue in this trial was whether the child had been exposed to domestic violence by the Father during his brief relationship with Ms W, in particular during the period in which the Father was living with Ms W and her three sons. The Mother records that the child reported to her that the Father had hit Ms W in the face and that Ms W had required an ice-pack to treat the resulting injury. The Mother also reported that the child had reported that the Father had knocked down Ms W’s door with a hammer in anger.
The Father accepted that there had been one incident of violence between himself and Ms W that he alleged was an act of self-defence on his part which resulted in him dislocating a finger, but maintained that the child had not been present at the time and that he had never discussed the incident with or in front of the child. The Father gave oral evidence that this incident occurred on 16 January 2010, and the Mother accepted under cross-examination that the child was not spending time with the Father on that day. The Father could provide no explanation for the child’s reporting of him having hit Ms W.
I note that Ms D gave evidence under cross-examination to the effect that it would have been, “…unusual…” for the child to re-enact a scene of domestic violence in the way the Mother alleges had she not personally witnessed it, but went on to say that it could not be ruled out that the child had made up the ‘fight’ scenario after being informed that the Father and Ms W had separated.
Given the Father’s willingness to admit to the incident with Ms W, and his parents’ confirmation of the relevant date (a date on which the child was not in the Father’s care), combined with his inability to provide another explanation for the child’s statement, I find that the child has not been exposed to family violence in the Father’s household. It is possible, as I suggested to the Mother during her cross-examination, that this was the child’s way of explaining the rapid departure from her life of a new maternal figure (the Mother did not accept this as a likely explanation). At any rate, even had the child been so exposed, the Father has not been in a relationship with Ms W for some time now and there is no allegation that the child would be at any risk of exposure to family violence in the paternal grandparents’ home where the Father currently resides.
In relation to the hammer incident, given that there is no independent corroborative evidence of this incident (indeed, the Father deposes that both he and Ms W received the full amount of their bond back from the rental property in which they were living during their relationship and the Mother did not dispute that evidence), I accept the Father’s evidence that this must have been an exercise of the child’s imagination. I also note that the child made this disclosure to the Mother on 22 February 2010, over a month after the Father’s relationship with Ms W had ended. It would seem unlikely that the child would not have disclosed such a serious incident to her mother for more than a month after its occurrence.
It is also relevant to note that the Mother gave evidence that the child has previously told other adults that she was moving to England after having heard a nursery rhyme to that effect. I find that, similar to many children of her age, the child has an active imagination and an inability to clearly distinguish between fantasy and reality. It is unknown from where the stimuli for the disclosures made by the child may have originated, but given the Mother’s reports of the child having behaved aggressively towards other children at day care by biting and hitting them, it is possible that the child’s disclosures may have reflected her experience of the causes of someone being taken away from her. However, regardless of the source of the child’s disclosures, I find that they do not indicate that the child was herself exposed to a situation of family violence between the Father and Ms W.
I note that the Father, to his credit, did not allege that either of these allegations of family violence were invented by the Mother, but rather accepted that they were likely figments of the child’s active imagination.
The Mother does not otherwise allege that the child has been exposed to family violence, save for some conflict at changeovers which, on the evidence of either party, did not extend to physical conflict.
It is evident that, given the symptoms of stress that the child has exhibited to the various professionals treating her, Orders which limit the likelihood of further proceedings will be in the child’s best interests. To my mind, that is a factor against Orders of the kind proposed by the Mother which provide for a review of this matter at a future date.

Sexual Abuse Allegations

I now turn to the issue which has dominated this case – the issue of whether the Father has sexually abused the child. This is considered in the context of the primary consideration that it is in the child’s best interests to protect her from physical or psychological harm (s 60CC(2)(b)).
On 3 December 2010, at the same time as lodging her Response, the Mother filed a Notice of Child Abuse or Family Violence which contained the following allegations:
1. It is alleged that somewhere between February 2010 and the 30th September 2010 the Father of the said child, poked the said child with a “naughty stick”, assumed to be plastic in nature, to the child’s vaginal area.
2. It is alleged that the abuse took place on more than one occasion, although the number of such occasions is unknown.
3. It is further alleged that the perpetrator of the indecent act was the Father of the child [Mr Pacey].
It is noted that the Father was only advised of these allegations on 5 October 2010 (when the Mother ceased allowing the child to spend time with the Father), more than six months after the child allegedly first made statements of concern to the Mother on 1 April 2010.
The Father has vehemently denied any wrongdoing of this kind throughout the proceedings.
The following chronology provides a convenient summary of the timeline of disclosures and allegations made by the child which form the basis of the Mother’s concerns.

Date	Incident
January 2010	Father’s de facto relationship with Ms W broke down. Father moved back to reside with the paternal grandparents. Mother deposes the child develops incontinence problems. Mother deposes to observing differences in child’s behaviour.
1 February 2010	Mother took child to Dr H, General Practitioner, at EC Medical Centre as the child was, “….complaining of a sore vagina…” and was also, “…displaying anger…”
8 February 2010	Mother says child made disclosure of domestic violence in the Father’s home that, “Daddy smacked [Ms W].” Child relates incident she says she saw of domestic violence by the Father against Ms W.
12 February 2010	Mother took child to Dr H because of her behavioural problems. Mother advised the doctor the child had made disclosure of witnessing domestic violence and that, “…she was coming home expressing anger in our household.”
18 February 2010	Mother deposes child, “…very cranky…”and was “…hitting things and often became distressed when I left the room,” following an overnight visit with Father.
22 February 2010	Mother says child made disclosure of another episode of domestic violence by Father against Ms W that, “…she had seen her Daddy break [Ms W’s] door with a hammer because he was ‘cranky’.” Mother deposes child was, “…very cranky…”, “…tired and was again hitting out and screaming…”, “…very angry…”and “…balling up her firsts and grunting and going red in the face” Mother says advised by day care teacher that child wet herself three times during the day.
23 February 2010	Mother and child attend upon Dr X, clinical psychologist, “…for advice with respect to the new behaviour that had been exhibited by [the child]…”
24 February 2010	Child spends overnight time with Father.
25 February 2010	Mother says advised by day care teacher that the child, “…had been very teary…” and, “…was not doing what she was told to do.”
8 March 2010	Mother took child to Dr H in relation to a bruise under the child’s eye, sustained due to falling from her bed.
14 March 2010	Mother took child to Dr H, “…with respect to child’s urinary incontinence and tests are ordered”.
23 March 2010	Mother says contacted by day care with respect to concerns about child’s incontinence.
24 March 2010	Father takes child to his doctor due to child’s complaint of a, “…sore bottom.”
25 March 2010	Father informs Mother that child wet the bed during time with him. Mother took child to see Dr E at EC Medical Centre – Child undergoes bladder and kidney ultrasounds
29 March 2010	Mother advised by Dr H that all medical tests indicated no physical medical problem.
1 April 2010	Mother says child made first disclosure to Mother that, “Daddy poked me with a naughty stick,” and indicates that the stick was poked into her vaginal area.
6 April 2010	Day care centre advised Mother of wetting concerns. Mother says child complained of sore bottom.
8 April 2010	Day care centre advised Mother of child’s incontinence problems. Mother attends group mediation session and is advised by counsellor they would be obliged to put in a Child Safety Report.
9 April 2010	Mother says child told her that the paternal grandparents don’t let the Father bathe her, “…because he was naughty.” V CSSC received concerns in relation to the child’s disclosure that, “Daddy poked me with a naughty stick,”; the child witnessing family violence between the Father and Ms W and the child’s day care centre staff reporting changes in the child’s behaviour.
10-11 April 2010	Mother says child complains of sore bottom caused by, “…the plastic stick.”
12 April 2010	Mother says she receives advice from Legal Aid to contact the Department of Communities, Child Safety and Disability Services (“the Department”).
13 April 2010	Mother says advised by the Department there was insufficient information to open an investigation of sexual abuse.
14 April 2010	The Department contact KW Child Care who indicated interaction with both parents open and interactive. Child appeared to have normal attachment to both parents.
15 April 2010	Mother says following visit with Father the child delayed going to toilet and the child’s vaginal area was red. Notification to the Department that child may have been sexually harmed while in the Father’s care.
16 April 2010	Mother took child to Dr H, and when she was asked by Dr H what happened to make her bottom sore, the child replied, “Daddy put a stick in there.” Dr H asked how many times this occurred and the child replied, “Two.”
19 April 2010	Dr H externally examines the child’s vaginal area and observes no redness or differences.
22 April 2010	Mother says the day after an overnight visit with the Father the child’s vaginal area was red. Mother says Dr H externally examines the child’s vaginal area and advised the problem could be thrush.
27 April 2010	Mother says contacted by day care with respect to the child’s incontinency problems.
29 April 2010	Mother says contacted by day care with respect to the child’s incontinency problems. Mother says following overnight time with the Father the child had four wetting accidents at child care.
1 May 2010	Mother says child reluctant to go to Father for time.
30 April 2010	Mother says child had nightmare.
11 May 2010	Mother attends Police for guidance and interview arranged for the child.
12 May 2010	Child interviewed by police/CPIU (s 93A interview).
13 May 2010	Mother says child returned from overnight time with the Father with redness on bottom.
14 May 2010	Mother took child to Dr H, “…with redness in the vaginal area.” Dr H prescribed the child hydrosol cream for thrush.
17 May 2010	Mother says child’s mood was, “…very angry and her behaviour exhibits anger.”
29 May 2010	Mother says child reluctant to go to the Father
3 June 2010	Mother says child’s exhibits anger and incontinency problems.
4 June 2010	Mother says advised by day care that child had 3 wetting accidents at day care and was complaining of a, “…sore wee.”
12 June 2010	Mother says child made disclosure that, “…the naughty stick…” went into her bottom. Mother says child states that, “…Daddy…” held the naughty stick.
14 June 2010	Mother says advised by day care that child had further wetting accidents.
27 July 2010	Mother says child complains of sore bottom and has further wetting accidents. Mother says child reports that it was her wee making her bottom sore and that it wasn’t from the stick Daddy put in there.
September 2010	Mother says child complaining to Mother of sore bottom. Mother says child began touching herself, particularly in the bath.
6 September 2010	Mother took child to see Dr O, general practitioner at HC Medical Centre with respect to, “…sore wee.” Dr O prescribed antibiotics for urinary tract infection.
13 September 2010	Mother says she was contacted by M suburb CIB and instructions sought as to whether she wished matters to be pursued.
16 September 2010	Mother took child to see Dr O at HC Medical Centre, “…re: child’s behaviour.” Mother given a referral to psychologist.
17 September 2010	Mother says child touching herself. When the Mother asked what she was doing, Mother says child replied that she was putting her finger in the hole to get the poo out. When the Mother asked which hole she says the child said the “middle hole”. Mother says she asked who showed her the hole to which the child replied no-one, she just knew it was there, but then she said, “Daddy pokes me with a stick in there.”
21 September 2010	Mother says following time with the Father the Mother found the child playing with herself, putting fingers inside her vagina and trying to put toys inside her vagina.
22 September 2010	Mother and child attend DP Psychology practice for intake appointment. Mother says tests conducted and advice provided that child exhibiting behaviours associated with sexual abuse. Mother deposes to contacting the Department to make sexual abuse notification, but advised that psychologist needs to make such notification. Subpoenaed notes from DP Psychology provide that the child makes disclosures to Ms U: · “Daddy touches me in the bath” · “Daddy makes me sore” · “Pokes me in the bottom with a stick, made of wood” · “Being touched in those places” Subpoenaed notes from DP Psychology provide that Ms U will make a disclosure to the Department. Information provided to the Department by two notifiers in relation to the child’s disclosures of sexual abuse. Child spends overnight time with the Father for the last time.
23 September 2010	Mother took the child to Dr O – Dr O advised the Mother that she should attend a paediatrician if she has concerns. Mother says child suffers a nightmare and is observed with her hands down her underpants.
24 September 2010	Father says Ms U informed the Department that the child was slower than average with toilet training and at times regresses and wets her pants but is going well. Ms U also provides that the child appears happy when the Father turns up and runs to him and is happy to see him.
29 September 2010	Mother says she observed child, “…play acting on a doll,” by removing all the doll’s clothes and telling the Mother the child was going to take the doll to the doctor because the doll had a, “…sore bottom.”
4 October 2010	Mother advises Father via text message that she is ceasing his time with the child. Child commences counselling (post-intake session) with Ms U at DP Psychology .
5 October 2010	Mother notifies Father via email that the child has made disclosures about being dealt with in a sexually inappropriate way whilst in the Father’s care and that she is ceasing the Father’s time with the child.
6 October 2010	Father contacts the Department. The Department notes that they received a “General Enquiry” in relation to the Father’s time with child.
16 October 2010	Child attends second counselling session at DP Psychology.
18 October 2010	Father commences spending supervised time with the child at the child’s day care centre.
25 October 2010	Child attends third counselling session at DP Psychology.
29 October 2010	Mother contacted the Department to, “…ascertain where their investigation was at.” Mother was advised that the investigation would not proceed as Mother was acting as a protective parent and they did not consider the child was in danger. Department records this as a “Child Concern Report” as information provided did not provide sufficient evidence the child was being harmed or was at unacceptable risk of harm.
30 October 2010	Child attends fourth counselling session at DP Psychology. Child makes disclosure to Ms U: Daddy was. “…not safe…” when he poked her in the bottom.
2 November 2011	Father commences proceedings in the Federal Magistrates Court.
9 November 2011	The Department’s … Intake Services contacted and information sought as to whether the Department planned to investigate sexual abuse allegations.
13 November 2010	Child attends fifth counselling session at DP Psychology.
25 November 2010	Mother says child care director advises of observations of touching.
27 November 2010	Child attends sixth counselling session at DP Psychology. Child makes disclosures to Ms U that: · “Daddy poked me in the bottom” · “I was scared when Daddy touched my bottom”
3 December 2010	Mother files a Form 4 Notice of Child Abuse, together with her Response to an Initiating Application.
8 December 2010	Orders of FM Howard that Father to spend supervised time with the child for three hours per week at HH Centre.
11 December 2010	Child attends seventh counselling session at DP Psychology.
15 December 2010	Response to the Mother’s Form 4 Notice of Child Abuse assessed as not meeting the threshold for investigation by the Department.
9 January 2011	Father commences spending time with the child at HH Centre
6 February 2011	Mother deposes child returns from HH Centre “very upset”. Subpoenaed notes from HH Centre show interaction between Father and the child in relation to the child “touching” herself.
7 February 2011	Mother says child has incontinency problems at day care.
8 February 2011	Mother says child has incontinency problems at day care.
9 February 2011	Magellan Report by the Department provides that there is, “No intention to intervene, but [the Department] will provide information that may be of assistance to the Family Court of Australia”.
10 February 2011	Mother says day care advises child exhibiting bad behaviour and had incontinency problems.
11 February 2011	Mother says day care advises of further incontinency problems.
15 February 2011	Mother says director of child care centre advises of inappropriate statements made by paternal grandmother to the child.
16 February 2011	Mother says day care advises of further wetting problems.
6 March 2011	Mother states that there was a, “…reported issue at [HH Centre].” Subpoenaed notes from that day state the child makes statement, “I won’t tell about my daddy,” and that the Father puts chocolates and lollies in the child’s mouth.
7 March 2011	Child attends eighth counselling session at DP Psychology.
8 March 2011	Mother says director of day care centre advised she would stop the paternal grandmother’s visits to the centre because of the director’s concerns for the child.
24 March 2011	Mother says child returns from day care angry and upset following visit by paternal aunt, Ms T. Family Report of Ms D filed.
28 March 2011	Child attends ninth counselling session at DP Psychology.
3 April 2011	Mother states that there was a, “…reported issue at [HH Centre].” Subpoenaed notes from that day state the child made statements about kissing with a soft toy; child made statement to the Father that, “…you don’t tell anyone secrets; Father makes statements to the child that she has to be “a good girl.”
4 April 2011	Child attends tenth counselling session at DP Psychology
15 April 2011	Mother says child makes disclosures that she sleeps in the Father’s bed and that the paternal grandmother tells the Father not to poke her in the bottom with a stick.
18 April 2011	Child attends eleventh counselling session at DP Psychology.
6 May 2011	Mother says she was approached by staff at day care centre and advised of child playing a kissing game during lunch time.
9 May 2011	Mother says she was advised by day care personnel that the child undressed and was looking at her body in the presence of two boys.
19 May 2011	Mother says child told her she was scared that Daddy would poke her with a naughty stick again. Mother says she and the child had a conversation about “safe people”.
21 May 2011	Mother says child again discloses to Mother that daddy poked her in the bottom with a naughty stick.
26 May 2011	Mother states that there was a, “…reported issue at [HH Centre].” Subpoenaed notes from that day state the Father placed his finger in front of the child’s mouth and stated, “Lick it.” The child licked the Father’s finger. Notes also state Father tried to kiss the child on the lips several times but the child turned her head away.
15 June 2011	Child attends twelfth counselling session at DP Psychology.
23 June 2011	Mother states that there was a, “…reported issue at [HH Centre].” Subpoenaed notes from that day provide the Father kissed the child on the lips more than ten times throughout a one and a half hour visit; that the Father moved into line to receive the kiss on the lips and that the Father told the child to suck yoghurt off his finger.
30 June 2011	Mother states that there was a, “…reported issue at [HH Centre].” Subpoenaed notes from that day state the child was lying on the Father’s lap whilst watching a movie and that the child was sucking on the Father’s finger for 3-4 minutes.
6 July 2011	Child attends thirteenth counselling session at DP Psychology

As is evident, the concerning behaviours exhibited by the child as reported by the Mother included wetting herself, masturbation and touching her vaginal area in public, angry outbursts and being, “…cranky…” in addition to disclosures about being poked in the vaginal area with ‘the naughty stick’.
In addition to these reported behaviours, the Mother also relies upon what she alleges to be a history of the Father’s inappropriate behaviour in relation to children as evidence to support her allegations of sexual abuse.
The Mother refers in her affidavit material to the Father being suspended from his employment because he had touched a female student’s bra strap. However, the Father gave oral evidence that he believed the Mother had become confused and was referring to an incident where his contract was terminated after he had accidentally touched a female student on the bottom when he was making a ‘hurry up’ motion with his hands and the student stepped back into his hands and then later made the ‘L’ sign for ‘loser’ to that girl’s sister in a separate incident. The Father gave evidence, and the Department of Education’s records corroborate, that the Father immediately informed other staff members of the incidents and underwent training regarding classroom management and child protection. The Father also gave evidence that this was at the beginning of his career and that he had, “…grown up…” since that time.
I accept the Father’s evidence in relation to the nature of this incident, corroborated as it is by the relevant Departmental records. I do not find that this incident is part of a body of evidence indicating that the Father has some propensity to sexually abuse the child.
The Mother also raised concerns about the fact that the Father’s grandfather had sexually abused the Father’s sister (the Mother initially incorrectly reported to the Family Consultant that this had been perpetrated by the paternal grandfather). Both the Father and his parents admitted to this having occurred, but stated that it rendered them more vigilant regarding the sexual abuse of children. The Mother specifically raised concerns in her oral evidence that no authorities were involved in the paternal great-grandfather’s case and that all that was done was that the Father’s sisters were separated from the paternal great-grandfather. I find, from both their affidavit and oral evidence, that both the Father and his parents were genuine in their distress relating to this incident and that their actions many years ago do not reflect any likelihood that sexual abuse of a child would be ‘covered up’ or inappropriately dealt with by the Father or his family.
The Mother’s case also relied heavily upon the findings of Ms U, a psychologist whom the child has been seeing for an extended period. Of critical importance is that during her oral evidence, the Mother agreed that it was the evidence of Ms U that really prompted the Mother ceasing the child’s contact with the Father and making the allegations of sexual abuse. The Mother also gave evidence that she believed that the other practitioners the child saw were not qualified to assess the child. I note that these other practitioners included general practitioners, paediatricians and clinical psychologists with doctorates in psychology.
The Mother went on to say under cross-examination:
It wasn’t particularly [Ms U], but it was the fact that she was after a break of time maybe six weeks, she was red again, the problems were starting again and I knew then I’ve gotta do something about it now so I found somebody I could take her to to talk to to try and get something because I’d been in that circle before.
However, I note that despite this partial retraction of her statement that Ms U views were a ‘turning point’ in the Mother restricting the Father’s time with the child, the Mother continued to refer back to the child’s intake with Ms U as constituting something of a watershed in the Mother’s approach to the child’s disclosures throughout the remainder of her evidence.
I note at the outset that Ms U has only been practising as a psychologist since 2007 and has only worked with children since early 2008. Ms U also gave evidence that approximately 90 per cent of her clients at her former job and approximately 50 per cent of her current clients had experienced some form of sexual abuse.
The central limitations of Ms U’s evidence were, as she readily admitted and as were noted at paragraph 3.0 of her report, that her role was not to forensically assess whether or not the child had been sexually abused, but to therapeutically treat the child on the assumption that she had been so abused and to help her manage her sexualised behaviours and to improve her capacity to protect herself. Ms U conceded that she did not have the expertise to forensically determine if the child had been sexually abused. On that basis, Ms U clearly stated both in her report and in her oral evidence that she never sought information from sources other than the child and the Mother which might corroborate or undermine the information she received from the child and the Mother, and under cross-examination revealed that she had not read any court documents apart from briefly reading the Family Report prepared by Ms D in this matter. Ms U also gave oral evidence that she was not sure if she had discussed the distinction between a forensic and a therapeutic role with the Mother and that she was under the impression that the Mother knew it was not Ms U’s task to discover if the child had been sexually abused.
Ms U gave further evidence that she was unaware that she was not the first psychologist the Mother had caused the child to attend upon. The Mother gave evidence under cross-examination that although the child’s general practitioner originally referred the child to a Dr X, a clinical psychologist, the Mother requested a referral to a different practitioner as she did not agree with Dr X’s comments that if the child had not been physically harmed, then she was not at risk. Dr X was not called to give evidence by any party.
Ms U also gave evidence that she was unaware that the Department was not pursuing the Mother’s allegations of sexual abuse and that she was not aware that the police had not pursued any investigation of the allegations. Ms U further conceded that she had been unaware that the Mother had taken the child to a series of medical practitioners who had externally examined the child’s vaginal area on several occasions and that she had been unaware that the child had been prescribed with thrush medication.
Ms U nonetheless maintained in the witness box that only some, and not all, of the child’s behaviours could be explained by anxiety caused by the conflict between the child’s parents and that she had no other explanation other than sexual abuse for the child’s behaviours. Ms U did concede, however, that the behaviours she described as, “…masturbation…” were merely her seeing the child put her hands down her pants, and that she could not see if the child was actually touching her vagina.
Ms U concluded her evidence by accepting that her exposure of the child to multiple books on sexual abuse and a series of interviews about sexual abuse may have led to some manifestation of the phenomenon of suggestibility in the child.
Given the non-forensic nature of Ms U’s assessments and her lack of knowledge of several very centrally important facts, I do not find her evidence especially probative in terms of providing a balanced assessment of whether the Father poses an unacceptable risk of harm to the child. However, I do find that Ms U nonetheless accurately recorded her observations of the child’s statements and behaviours.
Another key element in the evidence presented by the Mother was a police interview conducted with the child on 18 May 2010 in relation to her disclosures to the Mother about the ‘naughty stick’. After having watched the video in full, I find that the interview was conducted in such a way as to almost irreparably taint the child’s evidence on this issue from the outset.
An agreed transcript of the interview was filed by the Independent Children’s Lawyer on 23 December 2011. It records that after asking several open-ended questions and receiving no response, the police interviewer commenced asking leading questions of the child in relation to her disclosures. The following is the most concerning excerpts of this interview (with grammatical corrections included):
INTERVIEWER: Tell me everything about the naughty stick; start at the beginning.
CHILD: It died.
INTERVIEWER: It died. Tell me about it dying.
CHILD: …did it.
INTERVIEWER: What did it?
CHILD: …a crayon!
INTERVIEWER: A crayon, is that a crayon?
CHILD: Yes.
INTERVIEWER: Tell me what the naughty stick is, what does it look like?
CHILD: Looks like a circle.
INTERVIEWER: Like a circle.
CHILD: Yes… there’s another…
INTERVIER: Where’s the naughty stick kept?
CHILD: On the ground.
INTERVIEWER: On the ground, okay. So what happens with the naughty stick?
CHILD: There’s Thomas the Tank Engine in that picture.
INTERVIEWER: Thomas the Tank Engine, it is too. So tell me what happens with the naughty stick [A].
CHILD: It just died.
INTERVIEWER: It died. But before it died, what happened with it?
CHILD: It ran away.
INTERVIEWER: It ran away, well tell me about it.
CHILD: …what’s inside here?
INTERVIEWER: I heard that the naughty stick was put on your body somewhere. Did that happen?
CHILD: Yes.
INTERVIEWER: So tell me about that.
CHILD: The …. did it.
INTERVIEWER: The cushion did it. Well tell me about that.
CHILD: It died too.
INTERVIEWER: The cushion died too.
CHILD: …it was yuck.
INTERVIEWER: I heard that you told Mummy that the naughty stick was put on your body. Did you tell Mummy that?
CHILD: Yes.
INTERVIEWER: Well tell me all about what happened with the naughty stick.
CHILD: It died.
INTERVIEWER: Ok tell me about it dying.
CHILD: The princess.
INTERVIEWER: What do you mean it died.
CHILD: …why have you got toys, why you got toys?
INTERVIEWER: ‘Cause sometimes children come in here and have a bit of a play with them. Do you like our toys?
CHILD: Yes, I like…
INTERVIEWER: A tell me more about this naughty stick because I haven’t seen it. What does it look like?
CHILD: I can’t…
INTERVIEWER: You can’t what?
CHILD: I can’t tell you that.
INTERVIEWER: Why?
CHILD: ‘Cause I’m doing this.
…….
The interview continues in much the same style, with the interviewer continuing to ask suggestive and leading questions and with the child failing to provide any coherent responses. This interview would have emphasised to the child her statements regarding the ‘naughty stick’ and may have entrenched her perhaps-fantastical creation of the naughty stick in her mind. I note, in particular, the documented phenomenon of suggestability referred to by Ms U, a problem particularly connected with interviewing children, which may very well have manifested itself in this case following this interview.
This interview, to my mind, weighs heavily upon my assessment of the risk the Father poses to the child as it infects all of the disclosures subsequently made by the child about the ‘naughty stick’.
The May 2010 police interview also refutes the Mother’s allegations that the child has been, “…consistent…” in her disclosures regarding the ‘naughty stick’. The inconsistency of the child’s disclosures is evident from very early on. For example, when the Mother contacted the Department on 15 April 2010, they recorded her concerns as follows:
Notifier raised the following concerns: [The mother] fears that her daughter [A] may have been sexually harmed while she was in her fathers (sic) care. [The mother] stated that [the child] complained of feeling “sore on her bottom and wee”. [The mother] stated that [the child] had avoided going to the toilet and told her mother that it “hurt”. [The mother] said she asked why [the child’s] bottom was sore and [the child] responded saying “because Daddy poked me with a naughty stick”. [The mother] also said that [the child] mentioned that she had fallen on a stick. …
(emphasis added)
I also note that although the Department was notified on 27 September 2010 that the child had disclosed to the Mother that the naughty stick was made of wood, the Mother also records that the child had previously stated it was made of plastic (as recorded in the Form 4 Notice of Child Abuse or Family Violence). There appears to be little consistency in the child’s disclosures regarding the ‘stick’ save for that it hurt her in the vaginal area.
Importantly, the Department’s record of 27 September 2010 records the following:
…[Blank] stated that [the child] informed him/her that her father allergy (sic) “poked her with a stick” meaning a wooden stick and pointed to her vagina, which [the child] names her “hole”. [The child] disclosed [blank] that “daddy poked me with a stick in there” (sic) she was pointing to her vagina. Notifier stated that [the child] had disclosed the same statement 3 to 4 months ago in regard to the alleged stick incident. [The child] has been sighted “touching herself” and “putting her hands inside her vagina” and “putting toys in bath” and placing toys inside her vagina. [The child] has disclosed in the past when she had a bruise that she “hurt herself on stick”. …
(emphasis added)
This record seems to indicate that the child associates a stick of some kind with pain or injury. Given the child’s history of suspected urinary tract or thrush infections, explaining the pain as having been caused by a stick may have made perfect sense to the child at three and four years of age.
Ms D, the Family Consultant in this matter, gave what can only be termed equivocal evidence as to the likely causes of the child’s sexualised behaviours. She records:
44. This is a very difficult matter. One possible explanation for the exhibited behaviours described by the mother is that [the child] has been sexually abused by her father. However there are a number of other equally logical and reasonable explanations. This matter will therefore require judicial determination.
Ms D records that other explanations include that the child’s tendency to masturbate in public may be a more severe manifestation of normal childhood exploration which has been exacerbated by her anxiety caused by the conflict between her parents and the stress of transitioning between two households. I note that the Mother gave oral evidence that she knew that the child was aware of the conflict between the Mother and the Father as the child had mentioned previously that the Mother and the Father, “…didn’t talk.”
Ms D also raises the issue of the focus that has been placed by medical professionals over a substantial number of visits on the child’s genital region due to her ongoing complaints. In that context, I record below (as collated from the evidence of the Mother, the Father and the medical experts who gave evidence) a table of the visits the child has had to different medical practitioners during the period after the Mother alleges the child’s behaviour became concerning.
I note that during cross-examination, the Mother rejected that this series of vaginal examinations may have given the child a heightened awareness of her genitalia; however I accept Ms D’s evidence that this could have been a contributing factor towards the child’s behaviours from January 2010.

Date	Medical practitioner	Complaint
1 February 2010	Dr H, General Practitioner, EC Medical Centre	- sore vagina - displaying anger - witnessed DV
12 February 2010	Dr H, General Practitioner	- behavioural problems - witnessed DV
23 February 2010	Dr X, clinical psychologist	- techniques for positive behaviour reinforcement
8 March 2010	Dr H, General Practitioner	- bruise below eye (where child fell from her bed)
14 March 2010	Dr H, General Practitioner	- urinary incontinence - tests re: Urinary tract
24 March 2010	Unknown (Father’s doctor)	- sore bottom
25 March 2010	Dr E, General Practitioner, EC Medical Centre	- urinary incontinence - bladder and kidney ultrasounds
29 March 2010	Dr H, General Practitioner	- Tests results from 14/03/2010 – no medical problem
16 April 2010	Dr H, General Practitioner	- external examination - disclosure
19 April 2010	Dr H, General Practitioner	- external examination following time with Father - no redness
22 April 2010	Dr H, General Practitioner	- external examination following time with Father - redness on vulva
14 May 2010	Dr H, General Practitioner	- redness - prescribed hydrosol for thrush
17 July 2010 (approx)	Dr Y, paediatrician	- anxiety and wetting
6 September 2010	Dr O, General Practitioner, HC Hill Medical Centre	- “sore wee” - diagnosed with urinary tract infection
16 September 2010	Dr O, General Practitioner	- history of incontinence - new behaviour of “touching” - mental health plan and referral to psychologist
22 September 2010	Ms U, Psychologist, DP Psychology practice	- intake appointment Disclosures - “Daddy touches me in the bath” - “Daddy makes me sore” - “Pokes me in the bottom with a stick, made of wood” - “being touched in those places”
23 September 2010	Dr O, General Practitioner	- Mother requests examination – Dr O advised her to attend a paediatrician if she had concerns
4 October 2010	Ms U, Psychologist	Session 1
16 October 2010	Ms U, Psychologist	Session 2
25 October 2010	Ms U, Psychologist	Session 3
30 October 2010	Ms U, Psychologist	Session 4 Disclosure: Daddy was “not safe” when he poked her in the bottom
13 November	Ms U, Psychologist	Session 5
27 November 2010	Ms U, Psychologist	Session 6 Dislosures: - “Daddy poke me in the bottom”; - “I was scared when Daddy touched my bottom”
11 December 2010	Ms U, Psychologist	Session 7
7 March 2011	Ms U, Psychologist	Session 8
28 March 2011	Ms U, Psychologist	Session 9
4 April 2011	Ms U, Psychologist	Session 10
18 April 2011	Ms U, Psychologist	Session 11
15 June 2011	Ms U, Psychologist	Session 12
6 July 2011	Ms U, Psychologist	Session 13

I also note that the director of the child’s day care centre, Ms L, noted the following behaviours observed by the child’s day care teacher at page 28 of Exhibit 1:
9^th May 2011
At nap time, [the child] had a sheet over her head and body and was playing. I ([Ms Z]) had thought to go and check on her. Another child needed help at the time on the other side of the room. I went to check on [the child] and found that she had taken the sheet off her head and was now naked. As I got to her she started to look at her body in the mirror, using her fingers to check her private area. [The child] had also called two boys over to see what she was doing. The children were standing close by looking at [the child].
The Mother puts forward this as evidence of the child’s inappropriate behaviours. However, in the same way as the child play-acted with her doll taking its clothes off and going to the doctor’s because it had a, “…sore bottom…”, this behaviour may equally simply be a re-enactment of the multiple times the child had been examined without her underpants on by medical practitioners.
Ms D also raised at paragraph 51(f) of her report the spectre of the risk the Mother’s hypervigilance regarding the child may have had or may in the future pose to the child’s emotional health in the sense of compounding the child’s anxiety and any behaviours related to that.
The Mother gave evidence that she became particularly concerned following the return of X-ray, ultrasound and pathology results which showed that there was no medical reason for the child’s continued complaints that it was painful to urinate and the redness of her vulval area. These results were important as the Mother gave evidence that the child had historically made statements prior to her 1 April 2010 disclosure such as that her “wee” was making her vagina sore.

This is consistent with the repeated medical reports that the child’s soreness may have been the result of her suffering urinary tract or thrush infections, although, as previously noted, medical testing did not reveal a clear cause. Importantly, the Mother gave evidence that the redness observed in the child’s vaginal region did disappear following the application of thrush cream prescribed by Dr H, except for one time when the redness was particularly, “…regular…” The Mother accepted under cross-examination that the redness could have been heat rash or something other than sexual abuse, but that she had assumed it had something to do with the ‘naughty stick’ as the disclosure on 1 April 2010 was at around the same time as some redness appearing in the child’s vaginal area. This is relevant given the Department’s notation (referred to above) that the child had previously used the explanation of a ‘stick’ as the cause of a bruise she had suffered. Again, the ‘naughty stick’ may have simply been the child’s way of explaining that her vaginal area was sore.
Dr H accepted under cross-examination that thrush could have been the cause of the inflammation of the child’s vaginal area. It is also relevant to note that Dr H gave oral evidence that no penetration of the child could have occurred with the ‘naughty stick’ or otherwise as her hymen was still intact upon Dr H’s examination.
Ms S, the maternal grandmother, also gave oral evidence that the child had historically been treated for thrush and urinary tract infections. The notes of Dr O also note “…recurrent utis (sic)…”, indicating that either it was reported to her or a matter of some medical record (not available to this Court) that the child had a history of such infections. However, as noted above, the one pathology testing requested by Dr H in 2010 did not provide any evidence of substantiated urinary tract infections. I note there is no record of further pathology being undertaken despite the child’s ongoing complaints of vaginal soreness.
I note that Dr Y, the paediatrician consulted by the Mother, concluded in his report at page 241 of the agreed tender bundle provided to the Court by all three parties that either anxiety or inattention were the cause of the child’s wetting, and recommended psychotherapy for the child. There are no further details that Dr Y was concerned that the child’s physical or other symptoms constituted evidence that she was being sexually abused. Dr Y is not mentioned in the Mother’s otherwise comprehensive affidavit.
It is also important to note that the Mother and most of the professionals involved with the child have noted that the child does not display any signs of fear or distress when she makes disclosures regarding her father or the ‘naughty stick’. Rather, the child has consistently made these disclosures in a reportedly, “…flippant…” and, “…matter of fact…” manner. The Mother gave oral evidence that the child’s only distress was when she was telling the Mother that it hurt her to urinate.
The content of the child’s disclosures is also relevant. As noted in the police interview, the child was inconsistent about what the ‘naughty stick’ was and repeatedly said that, “It died,” and, “It ran away,” as well as comments to other persons such as the maternal grandmother that, “…he does not do it anymore.” Importantly, the comments that the naughty stick ‘died’ were made as early as May 2010, well before the Mother ceased the Father’s time with the child. Given that the child’s vaginal redness and problems with wetting continued well after that time, it would appear to indicate that whatever the ‘naughty stick’ was, if anything, it was not connected to the child’s physical symptoms.
It is also relevant to note that since April 2010, the child has consistently said that she was poked with the naughty stick, “When I was a baby.” The Mother gave evidence that the child uses this phrase to mean something that happened a long time ago. Although I accept that children have a different view of time to that of adults, the child’s first disclosure was in April 2010, and the Mother had only noticed any behavioural changes at all from January 2010. A gap of some three months could not truly be described as ‘a long time ago’, and had the ‘naughty stick’ been used prior to any changes in the child’s behaviour, this would not be consistent with it having been a form of sexual abuse perpetrated by the Father upon the child.
Also relevant is the evidence of the maternal grandmother that when the child mentioned to her that she had been poked with the naughty stick, the maternal grandmother would say words to the effect of, “Thank you for telling me that.” This may have been seen by the child as an encouragement to repeat statements that were receiving positive responses from important people in her life. The subpoenaed records in Exhibit 1 demonstrate the child received similarly positive responses from others in relation to her disclosures:
20^th May 2011
I ([Ms Z]) went into the store room to take some equipment in. [The child] followed and said, “Miss [Z], Miss [Z], my daddy poked me in the bottom when I was a baby. (sic) I replied to [the child]; (sic) Thanks for sharing [A]. [The child] then said” (sic) I’m not sharing, my Mummy told me”. (sic) Both the teacher and the Director spoke to [the Mother] about what [the child] had said. [and she] informed us that she had been speaking to [the child] the day before regarding the five safe people and how she had added Miss [Z] as one of those people as she is the new teacher looking after [the child].
This indicates that, encouraged to do so, the child may simply have been repeating statements that have been met with positive responses from the most important people in her life. This is reinforced by the fact that, as noted above, no person has ever reported that the child has appeared distressed or otherwise emotionally affected when she makes such statements.
Another factor is that the Mother gave oral evidence that despite her having ceased contact between the child and the Father in October 2010 and the Father only seeing the child for short periods at either a day care centre prior to Federal Magistrate Howards 8 December 2010 Orders or at HH Centre from 9 January 2011 onwards, the child continued to have problems with wetting herself into early 2011. Although this may be evidence of ongoing trauma, it may also be interpreted as evidence that the wetting was not related to any abuse by the Father of the child, and was instead anxiety-related. The maternal grandmother, Ms S, also deposed in her affidavit filed 11 July 2011 that:
The self-touching had eased off after [the child] went to the Psychologist in September 2010. Prior to her going to the Psychologist, she was consistently touching herself. After the psychologist, the touching became rare. It has again restarted.
The fact that the child’s sexualised behaviour had begun to recommence eight months after the Father had had nothing but short periods of supervised time with the child tends to indicate that such behaviours are in fact related to anxiety rather than as an imitation of being sexually abused by the Father.
As part of the exercise of the determining parenting orders in the child’s best interests, the Court must examine the nature of the allegations of child abuse and the evidence put forward as part of those allegations. In some cases, it may be appropriate to make a positive finding on the question of abuse. However, as was observed by the Full Court in B & B (1988) FLC 91-957, it is not the role of trial judges in the Family Court to hear such cases as criminal trials, designed to establish the guilt or innocence of a party, and it would be entirely inappropriate to proceed on the basis that time and communication is a reward for an acquittal and an order for no time is a punishment for a conviction.
The High Court, in M v M (1988) 166 CLR 69, reinforced that the ultimate and paramount issue to be decided in parenting proceedings is whether the making of the parenting order is in the interests of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by a parent does not alter the ultimate and paramount issue that the Court has to determine. The High Court expressed the principle that the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to this Court’s determination of what is in the best interests of the child. That paramount issue cannot be subverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court noted that courts had endeavoured, in their efforts to protect a child’s paramount interests, to achieve a balance between the risk of detriment to the child and the risk of sexual abuse and the possibility of benefit to the child from parental access.
At page 77, the High Court noted:
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access were granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, would have a detrimental impact upon a child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access cases.
Importantly, the High Court determined that the test to apply is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
For the foregoing reasons, I find that the Father does not pose an unacceptable risk of harm to the child. I am satisfied that there is no sufficient risk of sexual abuse occurring to conclude otherwise. I find that the child’s statements are more likely the product of explanations already noted other than any actual experience by the child of untoward conduct by the Father. I am satisfied that unsupervised time with the Father does not pose an unacceptable risk of harm to the child.
In that context, I further find that it is in the child’s best interests to maintain the meaningful relationship she presently has with both of her parents by spending regular periods of time with both of her parents.

Application of Presumptions

Under s 61DA, I am obliged to apply the presumption that it is in the child’s best interests for these parents to have equal shared parental responsibility for the child except where there has been abuse of the subject child (or another child in her family) or family violence. The presumption is not to be applied if it is concluded that its application is not in the best interests of the child. Given my findings above as to the total inability of the Mother and the Father to communicate effectively regarding major long-term decisions, including health decisions, which affect the child, I find that this presumption is rebutted as applying it would not be in the child’s best interests. In this case, equal shared parental responsibility would only lead to increased conflict between the parties which would place even further stress upon the child.
Rather, I propose to allocate sole parental responsibility to the Mother as the primary resident parent of the child with a requirement for the Mother to consult the Father before making major long-term decisions affecting the child’s future as well as imposing a restriction that both parents must agree on any relocation of the child outside of the Commonwealth of Australia.
In that context, none of the further presumptions regarding equal or substantial and significant time apply.
I find that none of the proposals put forward by either the Mother, the Father or the Independent Children’s Lawyer entirely meet the child’s best interests. I find that the child needs a consistent routine which minimises the opportunity for conflict between the parties as well as minimising the need for a constant run of changeovers which may exacerbate the anxiety she is already experiencing due to her parents’ separation and conflict.
In those circumstances, I propose to Order a reinstatement of the previous Orders for contact that the child spend time with the Father each Wednesday night and each alternate weekend. I also propose to Order that the Father have telephone contact with the child each Sunday afternoon when she is not otherwise in the Father’s care. This will allow the Father to ‘touch base’ with the child every two to three days in accordance with the Family Consultant’s recommendations, without removing her from the person who has been the only primary carer the child can remember. I propose, in accordance with all parties’ approaches, to have a gradual reintroduction of time between the child and the Father until it builds up to the periods I have indicated. For that reason, I propose not to introduce half holiday periods until the commencement of the 2013-2014 Christmas school holidays.
At this stage, I do not propose to make any orders which will regulate the child’s time with the Father far into the future, as I cannot determine what will be in the child’s best interests so many years from now.
I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 November 2012.

Associate:

Date: 20 November 2012

[2012] FamCA 957

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