Potter & Rubra
[2023] FedCFamC2F 620
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Potter & Rubra [2023] FedCFamC2F 620
File number(s): BRC 15024 of 2020 Judgment of: JUDGE VASTA Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – Children – contact – family violence –allegation of sexual abuse by father – finding that the allegation was fabricated – consideration of fabrication upon the child – change of residence. Legislation: Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC, s 60CG, s 61DA, s 64B, s 65D, s 65DAB Cases cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21 Division: Division 2 Family Law Number of paragraphs: 205 Date of last submission/s: 17 May 2023 Date of hearing: 16 and 17 May 2023 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Counsel for the Respondent: The Respondent appearing on her own behalf Counsel for the Independent Children's Lawyer: Mr Ashcroft Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
BRC 15024 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR POTTER
Applicant
AND: MS RUBRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE VASTA
DATE OF ORDER:
26 MAY 2023
BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.That all previous orders be discharged.
2.That the father have sole parental responsibility in respect of all major long term issues of the child X born 2018 (“the child”), save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)advise the mother in writing of the decision intended to be made;
(b)seek the mother’s written response in relation thereto within seven (7) days;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
(d)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
3.That the child live with the father.
4.That a moratorium on time and contact between the mother and child shall forthwith be put in place forthwith until 2 September 2023.
5.That upon the conclusion of the moratorium the child shall spend time with the mother as agreed between the parties and failing agreement as follows:
(a)From 2 September 2023, each alternate Saturday from 9:00am until 4.00pm;
(b)From 6 September 2023, the mother shall be at liberty to telephone the child each Wednesday between 6:00pm and 6:30pm;
(c)From 28 October 2023, each alternate Saturday and Sunday from 9:00am until 4.00pm;
(d)From 9 December 2023, each alternate weekend from 9:00am Saturday until 4:00pm Sunday;
(e)Commencing at the start of the 2024 school semester, from after school Friday until 4:00pm Sunday and each alternate weekend thereafter;
(f)Commencing April 2024, the child shall spend time with the mother for the first half of the school holidays in even numbered years and the second half in odd numbered years and during such school holiday periods the regular alternate weekend time shall be suspended;
(g)That the Christmas/January school holiday period shall be split such that the child shall spend time with the mother for the first, third and fifth week of those school holidays and the child shall spend time with the father shall on the second, fourth and sixth week of those school holidays.
6.With respect to medical and health matters, the Mother and the Father shall each:
(a)Immediately notify the other in the event that the child suffers a serious illness or injury whilst in their respective care;
(b)Advise the other of any significant medical or health appointment to be attended by the child and authorise the other parent to attend same; and
(c)Keep the other informed of the names and contact details of the medical practitioners upon whom the child attends from time to time, and irrevocably authorises such persons to discuss the child with the other parent either in writing, via telephone or personal attendance.
7.Neither party shall physically discipline the child or allow other persons to do so.
8.That the Mother shall not leave the child alone with Mr B or Mr C.
9.Neither party will speak badly (including in a manner that may undermine a party’s relationship with the child) about the other parent to the child or allow other persons to do so.
10.The child shall always spend Mother's Day weekend with the Mother
11.The child will always spend Father's Day weekend with the Father.
12.That, unless otherwise agreed changeovers that do not occur at school shall occur at:
(a)Service Station at D Street in respect of the Mother dropping the child off to the Father; and
(b)Service Station Suburb E at F Street in respect of the Father dropping the child off to the Mother.
13.That the parties shall communicate matters related to the child using a parenting app.
14.With respect to educational matters, the Mother and the Father shall each
(a)Keep the other informed of any school or educational institution attended by the child;
(b)Be at liberty to discuss the child's progress at school with her;
(c)Authorise the other parent to receive copies of all school reports, newsletters, photographs and other important information
(d)Be at liberty to attend any school function to which parents are normally invited such as concerts, sports carnivals, parent teacher interviews, information sessions and any other similar event (subject to any school policy in relation thereto).
15.The child will be:
(a)With the Father from 4.00pm Christmas Eve until 9.00am Boxing Day in odd numbered years; and
(b)With the Mother from 4.00pm Christmas Eve until 9.00am Boxing Day in even numbered years.
16.The Mother will refer to the Father as “Dad” if speaking to the child about the Father and the Father will refer to the Mother as “Mum” if speaking to the child about the Mother and each party will require other persons to do likewise.
17.Pursuant to s 65L of the Family Law Act 1975, the parties and the child X born 2018 shall attend an appointment with Court Child Expert Mr G or such other Court Child Expert as nominated by the Senior Court Child Expert of the Federal Circuit and Family Court of Australia, Brisbane at 9:00am on 26 May 2023 or a time and date as directed by the Court Child Expert at the Federal Circuit and Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of explaining these Orders to the child.
18.That the child be released from Court Children’s Services to the care of the father upon the conclusion of her appointment with Mr G or such other Court Child Expert.
19.Pursuant to s 121 of the Family Law Act 1975 (Cth) the Independent Children’s Lawyer is to provide a copy of this judgment to the Queensland Police Services and Department of Children, Youth Justice and Multicultural Affairs.
20.Pursuant to s 121 of the Family Law Act 1975 (Cth) the father be at liberty to provide a copy of these reasons to any school or medical provider that the child attends upon.
21.That the Independent Children’s Lawyer be discharged upon the conclusion of the appeal period.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Potter & Rubra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
The father, Mr Potter, was born in 1989. The mother, Ms Rubra, was born in 1997. The parents are members of a religious community.
The father moved into the home of the parents of the mother in late 2016. The parents married in early 2017 and continued to live with the parents of the mother until mid-2017 when they moved into their own rented home.
X was born 2018 and is the only child of this relationship. The parents separated in mid to late 2018, depending upon the version of each. They certainly remained living under the same roof until October 2018. They divorced in late 2019.
These proceedings are for parenting orders in relation to X.
Sexual offending in the family of the mother
The mother has three brothers and two sisters. The mother had reported to the father that, when she was about five or six years of age, her older brother, Mr B, touched her chest, put his hands down her pants and tried to kiss her. The father estimates that Mr B is about seven years older than the mother.
The father also reported that the mother had told him that when her younger brother, Mr C, was about 15 years old, he had persuaded another younger brother, Mr H, and two nephews (the sons of the mother’s sister, Ms J) to perform oral sex on him.
The mother, and the maternal grandmother, have admitted that these incidents did take place but have minimised the seriousness of the behaviour, describing them as juvenile curiosity and exploration. Without going into any detail, the maternal grandmother described that the matters were dealt with “appropriately”.
Previous domestic violence
The mother also claimed that there was family violence committed upon her by the father during their marriage. She has detailed these matters in her notice of risk. The general claims were of controlling behaviour with a number of examples given. The mother claimed that the father often made threats to “murder” her. The mother claimed the father threatened to burn down the family home with all her family members in it.
The father admitted that he had said that he wished the home would burn down but that he said this out of frustration after being told that her family wanted them to have their marriage annulled. He denied ever threatening to harm or kill the mother or anyone else.
He said that he apologised to the mother afterwards as he appreciated that this was an inappropriate thing to say.
The mother said that the father had called her “ugly”, “disgusting”, “your best friend is hotter than you are and I should have gone with her”, “I want new pussy”, “fucking bitch”, “cunt”, “I hate you”, “hideous”, “useless”, “bricks for brains” and other combinations of these disgusting epithets. She said that he threatened violence upon her and would often tell her to “jump off the balcony and die”. The mother suggested that this threat was made to both her and X. The mother described one physical assault upon her after she had been speaking to a leader of their church.
The father admitted that he had said things to the mother of which he is not proud. These included the majority of the disgusting epithets detailed earlier. He admitted that he had said to the mother, words to the effect of, “oh go and jump off the balcony” during arguments but that this was a throwaway line with no intent behind it. The father said that many of their arguments began because of his attention to other females in print or electronic media.
The father denied ever being physically violent to the mother or, in any way, abusive towards X.
Interaction with X by the father after separation
The mother remarried in 2020. Her husband is Mr K (the stepfather). They now have two children; L who was born 2020 and M who was born 2022.
Since separation, the father has lived in a share house where he rents a room. He is saving money and, even though he has a long term girlfriend, he will not entertain the thought of living with her until they are married.
Upon separation, the mother lived with her parents. X lived with her mother and spent time with the father. The mother conceded that the father had times alone with X between separation and divorce. According to the father, his communication with the mother was friendly and cordial post separation and divorce.
The father claimed that the mother stopped him having contact with X in early 2020 for reasons relating to COVID-19. The father claims that, notwithstanding assurances to the mother about his health, the mother insisted that any time between the father and X be supervised by either the maternal grandfather or her new husband. Copies of these messages were annexed to the affidavit of the father dated 23 October 2020.
As can be seen by the messages, the father did not see X because of the COVID-19 restrictions that have been put in place. When restrictions were eased, the mother texted that she was
...not comfortable in sending [X] to visit with you at your brother’s house because of your past history of abusive behaviour”. The mother also said that “Additionally, it has been several months since you have seen [X]. She is young and a few months is a long time to her. You are a virtual stranger to her and she is at an age where separation anxiety is an issue. I don’t feel that sending her to spend time with you is the best choice for her emotional well-being at this point in time as she simply doesn’t know you.
As the messages also illustrate, the mother would only agree to supervised time between the father and X.
These proceedings
On 26 October 2020, the father filed an application for final parenting orders in this Court. He was seeking an order for equal shared parental responsibility as well as day time visits which would graduate to overnight time once X was old enough and the father had his own accommodation. The mother responded by asking for sole parental responsibility and stating that she would not give the father any details about the child. She proposed supervised visits at a contact centre every fortnight.
The matter came before me on 4 December 2020. At that time I ordered that the father spend time with X supervised by his brother, Mr N, or his sister-in-law, Ms Q. I ordered a report under (what was then) s 11F of the Family Law Act 1975 (Cth) (“the Act”) and I appointed an Independent Children’s Lawyer (“ICL”).
Child Inclusive Conference memorandum
Family Consultant Ms O conducted her interviews and made observations on 4 March 2021. Of interest was paragraph 22 which read as follows:-
The mother impressed as holding a high level of mistrust towards the father and believes that he lacks in parenting skills and may “lash out” in an emotionally abusive way towards [X]. Whilst the mother reported she is no longer fearful of the father, she does not want to engage in verbal communication with him with her preference being for email or text messages.
Ms O noted that, in her observations of the interactions between the father and X, “the general tone of the observation was one of active play, natural ease in connection between child and father with many moments of fun and shared delight”. Ms O went on to immediately say:-
At the end of the observation session, the mother, infant maternal half-brother ([L]) and the stepfather were brought into the observation room by the writer and [X] appeared to become still and put her head down. This may indicate that [X] experienced a level of discomfort with regards to all parties being in the same room. The writer encourages [X] to say goodbye to the father and let her know that she would now spend some time playing with the mother, stepfather and [L]. [X] approached the father and he picked her up to give a hug and told her he loved her and look forward to seeing her soon.
Ms O made similar observations of the interactions between X and the mother, stepfather and half-brother. Ms O made recommendations contingent upon the Courts determination as to risk. Ms O recommended that the parents complete a parenting program and said that it was important that the stepfather also participate in this program. Ms O noted the anxiety that the mother had with regards to X spending time with the father and recommended that the mother engage with a clinical psychologist.
After being adjourned on 18 March 2021, the matter returned to Court on 30 April 2021. On that day, the ICL advised the Court that he would commission a family report and undertake a mediation conference.
I ordered that the father’s time with X no longer needed to be supervised, however the mother was to deliver X to the father at the address of the brother, Mr N and the father was to return the child to the mother at the end of that time. I made orders that the parents complete the parenting programs as recommended by Ms O. (I note that the father completed the program but the mother and stepfather did not.)
First Family report of Ms P
On 19 August 2021, Ms P conducted interviews with the mother, father and stepfather for the family report as well as conducting observations of those parties interacting with X.
The mother told Ms P that she was hoping that the father would be able to have visits fortnightly and perhaps start overnight time at the home of the brother, Mr N. She said that her concern was that the father can be emotionally abusive and that this could be directed at X. She said that she had never seen the father parenting so she could not comment on his parenting skills but conceded that X always returned home clean with nappies changed. The mother said that she believed that the father would feed and look after X well also stating that the father loves X and he has “good traits to be a father”.
Ms P conducted observations of the mother, stepfather and L interacting with X. Ms P did not have any concerns but did note that X called the stepfather “daddy”.
Ms P interviewed the stepfather. The stepfather told Ms P, about the father, that “to be 100% honest, I don’t like him”. When asked what he didn’t like, the stepfather said that the father had lied to the Court about the stepfather viewing pornography. (As a note, I did not find any mention made by the father about the stepfather viewing pornography in his notice of risk or in his two affidavits that had been filed at that time. There was no such mention in his reported comments to Family Consultant Ms O. As far as this Court is concerned, the father has never said anything to this Court about the stepfather viewing pornography.)
The stepfather said that he tells X “to be brave” when she goes to see her father. The stepfather thought that this was an appropriate comment to make because X has appeared scared in the past and has spoken of her “daddy getting angry”. The stepfather told Ms P that he does not have any criminal history. (I also note that this is not correct as, at the time of the interview, the stepfather had been convicted of committing an offence in 2011 as well as failing to provide a specimen of breath when directed.)
Ms P noted that, when observing the interactions between the father and X, she did not see any deficits in the parenting of the father and that X and the father appeared to have a good relationship. She said there was an exchange of physical affection on greeting each other and then leaving the observation area.
The father told Ms P that he loved the mother but was never “in love” with her; he loved her as a person and as a spiritual being. He said that he would always love her as the mother of his child and both of them believed in God being eternal. The father said that the mother struggled with insecurities because she never wanted him near other women. He said that they did argue but that he was never controlling.
The father admitted to Ms P that he said something very bad to the mother in telling the mother that “her best friend was more attractive than her”. He said that he still can’t believe that he had said this and that “it was so harsh”. He said that “I have regretted that comment to this day”.
The father said that he was happy for X to live with the mother. He said that he loves X and wants to be able to have a relationship with her. He said that he eventually wanted contact with X every second weekend from Friday afternoon until Monday morning, but realised that this would not be possible until he found his own accommodation.
The father said that his biggest worry was the communication between himself and the mother. He said that he has heard the stepfather telling X to be brave at changeover three or four times and he does not understand why X has to be brave. He said that FaceTime calls were stopped and would now only occur on the phone of the stepfather. He said that he didn’t want this to be a drama but that he would rather see himself and the mother co-parenting and communicating more effectively rather than having to include the stepfather.
Ms P opined that there was minimal trust between the mother and the father and that this would be a barrier to any amicable parenting relationship and, should it continue, could easily impact on X. Ms P said that X was of the age where she is susceptible to conflict between her parents and that X required two parents who could prioritise her needs ahead of their own need to prove “who was the better parent”.
Instructively, Ms P said that she did not see evidence of domestic violence between the parents. Notwithstanding that domestic violence occurs in many different forms and does not relate only to physical violence, Ms P did not observe any of the patterns of behaviours that are indicative of conflict.
Ms P opined that, in the absence of major risk factors, it was her assessment that the parenting arrangement for X needs to transition to a routine where X had consistency and stability. This means that the arrangement needed to allow X to understand that she actually can have a meaningful relationship with both parents (rather than X believing that it was only possible for her to have a parental relationship with one of her parents).
Ms P recommended that, if the Court assessed that there was no risk to X in the care of the father, X should start transitioning to spending every second weekend with the father at the home of his brother, Mr N.
When the matter returned to Court on 13 October 2021, both parents had been given time to absorb all that had been said in the family report. The ICL said that a mediation conference, organised by the ICL, was to take place soon. I adjourned any further consideration of the matter until 2 December 2021.
The Mediation
For obvious reasons, the Court never receives information about what happened at the mediation. However, in these proceedings, because of the way in which this fits into the narrative, the Court made an exception and received some information about the mediation.
The mediation took place in late 2021. During this mediation, the mother alleged that X had told her and the stepfather that the father had growled at her and smacked her face during the times that she was with him. The mother alleged that these conversations with X occurred after changeover. The mediator and the ICL suggested that, in any final consent orders, changeover occur at a contact centre so that an independent assessment could be performed of X to ensure that she was not distressed and, if anything untoward had occurred, steps could immediately be put in place for action to occur. The mother was nonplussed as to whether this was appropriate.
Nevertheless, a form of agreement was reached. The ICL circulated draft orders and the parents were asked to amend and sign the orders so they could be delivered to my Chambers without the need to come back to Court on 2 December 2021.
On 13 November 2021, the mother wrote to the father and the ICL, in effect, stating that there was no agreement and that X would not be attending changeovers anymore.
Affidavit of the mother 16 November 2021
The mother swore an affidavit on 16 November 2021. In this affidavit, the mother said that the visitation was progressing well, but that on 25 September 2021, things changed. The mother said that, upon changeover, X appeared miserable and in emotional distress. The mother said that this was quite unusual and that X refused to speak to her and the stepfather when the mother asked how her day had been. The mother said that X was on the verge of tears.
The mother said that X eventually told her and the stepfather that the father had told X that she was “naughty” and that he “growled” at her in the car after they left the home of her aunt and uncle. X said that the father was very scary and that she didn’t want to go back. The mother said that she noted this concern and decided to see how X may return after changeover, the following week.
The mother said on 2 October 2021, X’s demeanour was exactly the same as it had been at changeover the week before. She said that, on this occasion, X began crying about five minutes into their journey. The mother said that X again said that the father “growled” at her and smacked, saying that she was naughty and grabbing her in the car. The mother said that X again expressed that she didn’t want to return.
The mother said that, on 9 October 2021, a similar display occurred and X gave the same description of the father growling, smacking and grabbing her and telling her that she was naughty. The mother asked her whether the father did this at the house of the uncle and aunty and X replied “no, only in the car”.
The mother said that, on 14 October 2021 (which was an ordinary weekday but the day after the parties appeared before me), X spontaneously raised the smacking incidents with her and the stepfather and that X asked the stepfather to tell the father not to smack her anymore. The mother said that she asked where the father smacked her and X stated that “it hurts and he smacks me on the face and leg”. The mother said that X also told her that the father said “I’m going to smack your mum” and that X was worried that she (the mother) would also be smacked.
The mother said that, on 16 October 2021, X returned home happy and was more like herself. The mother said that X said to her “Guess what mummy; he didn’t smack me today”. The mother said that X had been given some new toys by the father and seemed very happy with how her day had gone.
The mother said that, on 23 October 2021, X was also happy and exclaimed that “he didn’t smack me today” and that she also had been given new toys by the father.
The mother said that she attended the mediation on 25 October 2021 and she raised these concerns at that time. She said she had not received any correspondence from the ICL regarding the mediation (which does not seem correct as the ICL had sent draft orders to both parents).
The mother said that on 30 October 2021, X pretended to be asleep after changeover. The mother said that she and the husband parked the car at the supermarket and X said, in a disheartened voice, that the father had smacked her that day and indicated that the smack was to her arm. The mother said that she and the stepfather discussed going to the police but they did not do so.
The mother’s version of what occurred in late 2021
The mother detailed what she said occurred in late 2021. It seems to me that it would be best to reproduce those exact paragraphs from her affidavit filed on 17 November 2021.
23. [late] 2012, [X] returned home again, miserable and quiet. I asked her if she is okay, [X] said “he said dont tell you”. My husband and I told her that shes safe, she can tell us anything and she wont get into trouble. [X] then said “he smacked me again”. And expressed to us that she “never wants to go back to him not forever”.
24. We drove directly to the [Suburb R] police station [on a day in late] 2021 after she had told us this again and I received advice from an officer who advised me to stop all visitations at this time and to report these things to the department of Child Safety.
25. We then went to a friends home for dinner after the police station and upon returning home [X] had a shower. [X] was in the shower and I began to hear her cry, I walked in and asked her what is wrong. [X] told me that her “bum bum” was hurting. I asked what had happened (assuming she had somehow hurt it in the shower). [X] than stated “[Mr Potter] did it”. I asked her if I could see her bottom to see if I could notice anything that may be causing her some pain in the shower. I noticed a scratch in the crack of her bottom and ask her how it happened. She said again “he did it”. [X] finished her shower and myself and my husband sat down with her in our lounge room and asked her where this happened, if he had a wet wipe, if she had pooped and was he just wiping her and accidentally scratcher her. [X] clearly stated that there was no wet wipe, she did not poo that day, that it happened in the lounge room once [Uncle Mr N] had left and that his finger was in her bottom. We asked why he was doing that and [X] said he said “because he wanted too”.
The stepfather’s version of what occurred in late 2021
The stepfather detailed what he said occurred in late 2021. It seems to me also that it would be best to reproduce those exact paragraphs from his affidavit filed on 17 April 2023.
17.On [a day in late] 2021, I distinctly recall [X's] demeanour was again unusual. She was very quiet and seem disheartened. My wife asked [X] if she is okay and [X] expressed to us that [Mr Potter] said "he said don't tell you". She mentioned that she ''never wants to go back also stated that he had smacked her yet again.
18. My wife and I drove directly to the [Suburb R] police station [on a day in late] 2021 where my wife went inside for some advice regarding the situation and I stayed in the car.
19. After this, myself, my wife, [X] and our son visited a friends home for dinner.
20. When we returned home my wife assisted [X] into the shower and I was sitting on our couch which is within ears reach of the shower. My wife had also come out into the lounge room and we then heard [X] began to scream and cry. [Ms Rubra] bolted into the shower and I heard [X] say ''my bum bum is hurting" while crying. I then heard her say "[Mr Potter] did it" repeating that twice. I then got up to see what was going on and saw a nail scratch on the crack of her bottom. My wife and I asked [X] a series of questions to ensure that we were understanding [X's] experience correctly. She very clearly stated that this didn't happen while her bottom was being wiped and that it happened once [Uncle Mr N] bas left the home and it was in the lounge room. [X] stated clearly that his finger was in her bottom.
21. We asked [X] why he did this to her and [X] stated that [Mr Potter] said "because he wanted too".
Aftermath
When the matter came back before me on 2 December 2021, I suspended the orders that had been in place since 30 April 2021. It was clear to me that these were serious allegations and that they needed to be investigated. I did note that the father was of the view that the allegations were “a tool designed to limit his time with the child”. The matter was adjourned until February 2022.
On 17 February 2022, the matter came back before me and I ordered that time between the father and the child resume but that it occur at T Family Services which was a contact centre where the report writer, Ms P attended. I did this so that Ms P could write an updated report after there had been a significant period of time in which supervised visitation had occurred.
T Family Services would not supervise the time because the mother refused to have a COVID‑19 vaccine (which is somewhat ironic as, two years previously, the mother used COVID-19 concerns to limit the interaction of the father with X). On 4 May 2022, I ordered that the parents complete the intake at U Contact Centre “or any other contact centre as approved by the ICL” and for contact between X and her father to commence as soon as practicable. I also ordered an updated family report and adjourned the matter until 17 October 2022.
Unfortunately, I was ill on 17 October 2022. In any case, the updated family report had only just been filed and the parents had not had a proper opportunity to absorb the contents of that report. Her Honour Judge Cassidy mentioned the matter (because of my illness) and adjourned it until February 2023.
On 2 February 2023, I ordered that the mother disclose to the ICL any psychiatrist, psychologist, counsellor or medical practitioner to whom she has taken X in relation to her concerns that X had been sexually abused. I injuncted the mother from taking the child to any other such appointment without the consent of the father.
I set the matter for trial to begin on 16 May 2023 and made the usual trial directions.
The Trial
The trial began on Tuesday, 16 May 2023 and went for two days. The only real issue in the trial was whether the father was an unacceptable risk given the allegation of sexually interfering with the child. Hence, scrutiny surrounding the circumstances of the allegation of the father inserting his finger into the child’s bottom, had to be the subject of the trial.
To this end, the ICL tendered a deal of subpoena material which has become Exhibit 1.
The father and his brother gave evidence as did the mother, the stepfather, the maternal aunt and the maternal grandmother. The Court also heard evidence from the report writer, Ms P.
In respect to the allegation, there were a number of issues that were problematic. Those issues intermingled with the credibility of the witnesses.
Exhibit 1 and Exhibit 2
As detailed by the mother in her affidavit of 16 November 2021, after changeover on a day in late 2021, the stepfather drove the mother to Suburb R Police Station. Exhibit 2 was video footage from body worn camera of the police officer who spoke to the mother. The mother complained to the police officer that X said she gets smacked. The mother complained that X has a different demeanour. The mother said that X told them that the father said not to tell. The mother said that X told her that the father growls at her and smacks her on the arm or on the face.
The mother told the police officer that they had just had a mediation in a family law dispute. The mother told the police officer that X said that she (X) is scared of the father and doesn’t want to go to see him. The mother asked if there was anything she could do in the meantime. The police officer said to her “if you fear for her safety you do not have to send her”. The police officer said that the mother needed to look at the Court order and make a decision as to what she should do.
There is nothing in the police material about any complaint regarding digital penetration of the child’s anus. However, there is a notation, at a later time, that “a notifier”(which is obviously the Department of Child Safety) told police “later that same day the three year old child made a disclosure to her mother that her bottom was sore and that [Mr Potter] (father) had scratched her bottom by putting his finger in it”.
The matter was recorded as a notification with Child Safety with a five-day response. The notation in the police record is that “IO (investigating officer) attempted numerous phone calls and text messages to the mother of the child to speak with her further about this disclosure. All attempts to make contact with mother has been unsuccessful, further attempts have also been made to speak with the mother’s partner without success”.
It would seem that the police matter was closed in early 2022 for those reasons.
Records from the Department of Child Safety indicate that the mother did make a notification on 8 November 2021 and a “child protection notification” was made. This was also sent to the police.
Those records also contain an email sent by SCAN (Suspected Child Abuse and Neglect) on 27 April 2022 which reads:
Investigating officer attempted numerous phone calls and text messages to the mother of the child to speak with her. All attempts to make contact with the mother have been unsuccessful, further attempts have also been made to speak with the mother’s partner without success. Advice would be provided that as the child is only three years old and it is unlikely that the child will not particularise offences during a 93A statement to a court standard due to her age. Investigating officer has made several attempts to contact all parties without success.
Exhibit 1 also contained the criminal history of the stepfather as well as the “court briefs” for those offences. Exhibit 1 contains medical notes from Dr S of an examination of X in late 2021. Exhibit 1 also contains observation notes from U Contact Centre.
What can be gleaned from this evidence?
The timing of these allegations does bear scrutiny. What is clear is that on the day of the mediation on 25 October 2021, the mother’s claims of domestic violence had been found by Ms P not to be a significant factor in her recommendations as to what contact the child should have with her father.
Having regard to this, it would seem that the mother realised that her subjective fears did not bear objective scrutiny.
There was no evidence that the child was anything other than happy to see her father when she was dropped off at changeover. There was no objective evidence that there was anything for which the child needed to “be brave”. It was also clear that Mr N and Ms Q would see the child when she was dropped off for changeover. There was nothing in her demeanour or attitude that suggested to either of those persons that there was anything amiss.
Strangely enough, the allegations of “smacking” or “growling” are, on the mother’s evidence, only made when the child returns from changeover, yet she displayed no reticence to return to the father’s company the following week.
Despite the mother alleging that the child made complaints after spending time with her father on 25 September, 2 October and 9 October 2021, when the mother appeared before me on 13 October 2021, she failed to mention these matters. But the very next day, (14 October 2021) the mother alleges that the child spontaneously spoke about the father’s behaviour and alleged that the father also threatened to smack the mother as well.
Yet this aspect does not seem to have been mentioned at the mediation on 25 October 2021. At the mediation, all that was mentioned was X’s demeanour and her allegations of being smacked which were all said to have been made immediately following changeover.
Quite sensibly, the ICL and the mediator proposed a solution which would involve a contact centre handling that changeover so that any change in demeanour or allegations of smacking would be noted and investigated immediately.
This also meant that the mother’s “last-minute” concerns were able to be able to be addressed and, therefore, there was no objective reason why the mother could not sign and agree to the consent orders. It would seem that the ICL had given both parties some time to think about the orders and respond accordingly.
The visit by the mother to the police station in late 2021, would seem to be an attempt to create some support for the proposition that she took X’s complaints seriously, made a complaint to the police and had been given certain advice. However, what she had told the police did not seem to differ that much from what she had told the ICL and the mediator.
Objectively, the only time that the child was in distress was after the visits, so that the advice given by the police (to look at the orders) was not sufficient to justify disputing the orders proposed by the ICL; those orders were objectively adequate to counter any risk that the mother had so far identified.
And then, almost fortuitously, within a few hours, the child makes an allegation that changes the game.
How the allegation was made
What is striking about this allegation is that it was not made at the same time that the child made the allegation about smacking. If the child was in pain for the whole four or five hours after the changeover, it does not make sense that the child would suddenly start screaming in the shower because of that pain.
The mother and the stepfather both alleged that they saw a scratch. The stepfather describes the scratch as one where he could see the jagged skin flakes on both sides of the scratch; in other words, a significant scratch. The stepfather demonstrated to the Court where the scratch was by pointing to his own body. The scratch was apparently lower than the tailbone and at the area where the buttocks begin.
It seems incredulous that persons who claim to be concerned with the safety of children would leave a three-year-old unattended in a shower. When this was put to the stepfather, he said that the mother washes the child and then lets her play with her toys, unattended. He said that the mother has to undress the child because the child cannot do this herself.
The stepfather was then asked why the scratch wasn’t noticed during the washing. The stepfather then changed his evidence to say that the mother had put the child in to the shower and let her play first and was then going to wash her. Even on that scenario, the mother would have had to have undressed the child. For her to not have noticed a scratch, stretches credulity.
The tale told by the mother and the stepfather is very similar. The timeline is that they drove to Suburb R Police Station, then went to a friend’s home for dinner. When they returned home, the mother put the child into the shower whilst the stepfather sat on a couch. The mother then came out into the lounge room and the child began to scream and cry. The child then made an allegation and the mother and the stepfather then saw the scratch.
However, when the mother spoke to Ms P, she said (at paragraph 3.6 of the updated report) that she was
…going out for the night and she found [X] in the shower crying. The mother said that [X] told her that the father had put his finger up her bottom. The mother said she walked out into the lounge where the stepfather was and asked [X] a number of different questions. The mother said that she understood that this had allegedly occurred in [Mr N’s] home whilst the father and [X] were by themselves. The mother said that [X] disclosed that the father had put his finger inside [X’s] bottom and [X] had asked him to stop but the father said no.
This is a totally different scenario. The fact that the mother said that she “found” the child in the shower is instructive. The mother said that the father had not come into the bathroom but that she and X went to the lounge where he was.
The allegation that X had asked the father to stop but that the father refused, was not an allegation in either the affidavit of the mother or of the stepfather. It is also significant that the mother did not say to Ms P that she had seen a scratch on X.
The mother took X to see Dr S in late 2021. The notes of the visit are part of Exhibit 1. There is no notation by Dr S that the mother told the doctor that she (the mother) had seen a scratch. When the doctor examined the child, the doctor said that the child had possible mild vulvovaginitis and noted that there was no obvious trauma or scratches in the external genital area and any other area.
The Change of Allegation
Almost to the eve of trial, the allegation was that the father inserted his finger into the child’s bottom. However, on 17 April 2023, the mother filed an updating affidavit of herself as well as affidavits from her sister and stepfather.
Significantly, the mother deposed in her affidavit of 17 April 2023 that “On multiple occasions from [late] 2021 up until this present day, [X] has expressed very openly that ‘[Mr Potter] had his finger in my bottom and wee wee”.
The stepfather wrote in his affidavit of 17 April 2023 that “Since the event [of late] 2021, there have been many occasions where [X] has mentioned the experience to me clearly stating ‘[Mr Potter] put his finger in my bottom and wee wee’ and ‘he won’t do it again’”.
The sister, Ms J, deposed in her affidavit of 17 April 2023 that when she spoke to X about resuming supervised visits, X said “no, he touched my wee wee and bottom”.
Strangely enough, all three of those witnesses deposed that X had often mentioned this experience and that “her version of the events has never changed”. Yet, the version has clearly changed because the allegation is now that the father put his finger into the child’s vagina. The mother tried to explain this by saying that the child was confused and that she believed that the finger was in either the bottom or the vagina but not in both.
But this was not the allegation that was made to Child Safety; nor was it the allegation that was made to Dr S and it was definitely not the allegation that was made to Ms P. This is a significant difference and the mother, stepfather and aunt have simply attempted to pretend that there isn’t really any difference in the allegation.
The demeanour of the child when making the allegation
The aunt gave evidence that the child would simply blurt out a statement that “[Mr Potter] put his fingers in my bottom”. She said that it was done in a matter of fact manner and in an adamant way. The aunt said that she suggested to X that possibly this just happened while he was wiping her bottom after she had gone to the toilet. The aunt said that X was insistent that “no he wasn’t, he didn’t have a wipe; he hurt me”. The aunt said that the child had said similar things to her many times since then and always in a matter of fact manner.
The maternal grandmother gave similar evidence that the child would just blurt out that the father had put his fingers in her bottom. The maternal grandmother conceded that she could not recall having ever heard the child say that the father had touched her “wee wee”.
The mother, stepfather, grandmother and aunt all described the demeanour with which the child said these things on many occasions as being something that she would blurt out without any context. In answer to a question from me, they all agreed that she said it with the same expression that she would use if she were telling the person that she had just been given new shoes or was going to get a new pet.
What X said to Ms P
The most important evidence in relation to the allegation comes from what was said by X to Ms P. For completeness, I will reproduce paragraphs 5.1, 5.2 and 5.3 of the updated family report
5.1 On 15 August 2022, I conducted an age-appropriate interview of [X] at my office in [Town V]. [X] was able to tell me that her family consisted of her mummy and her daddy and her father's name is [Mr K]. She said that she also has two brothers named [L] and [M]. When asked about [Mr Potter], [X] stated that she also sees "[Mr Potter]" but she doesn't know why. She stated, "[Mr Potter] is another daddy" and she likes seeing him. [X] then stated, "He touched my private parts. He likes touching ladies' private parts", and when asked how she knew this, [X] stated "mummy told me". [X] said that [Ms Rubra] had said some other things but "I've forgotten what else mummy said".
5.2 [X] stated that [Mr Potter] is not a good person because he touched her private parts at his house. I then asked [X] if she could tell me a little bit more about this and she stated she was in [Mr Potter's] bedroom and [Mr Potter] put his finger in her bottom but she couldn't remember what else. [X] then stated, "I can remember that mummy told me that I can only see him at places where I'm safe".
5.3 [X] appeared to be speaking in a very matter of fact manner and did not display any anxiety as she said this to me. [X] stated, "I have two daddies, daddy [Mr K] and daddy [Mr Potter] but daddy [Mr K] and daddy [Mr Potter] are not good friends because daddy [Mr K] doesn't like daddy [Mr Potter]." When I asked [X] what she thought about [Mr Potter], she stated that she likes him and likes spending time with him.
This casts a whole new light on the allegation itself.
Credibility of the stepfather
The evidence of the stepfather is crucial. He is the one who hears the first allegation (though the mother claims that she was the first person to hear what X said) and he gives evidence of seeing the scratch and describing it. Therefore his credibility is very important.
It was very difficult to put any credence in his evidence.
His criminal history is nothing to be proud of. In mid-2011, the father was pulled over by police in a roadside breath test. Because of his indicia of bloodshot eyes and slurred speech, as well as a strong smell of liquor, police decided to take him to the Suburb W police station for the purpose of a further test. The stepfather was described as appearing “to be quite proud of himself stating to police that he had been drink-driving for the past six months and it is taken the police that long to catch him”. He was asked to provide a specimen of breath and had three attempts but a sufficient specimen of breath was not received on any occasion. He was charged with the offence of failing to provide a specimen of breath.
In this Court he explained that he simply could not provide a specimen of breath. I do not accept this evidence as he had enough breath to tell police that they haven’t been able to catch him yet had insufficient breath to give a specimen. He has not given any medical reason for his failure.
He also has a conviction from 2011. Even when confronted by police, he did not alter his behaviour. He was very intoxicated and, to fulfil their duty of care, the police had to take him to the hospital.
One may consider those offences were committed nearly 12 years ago and the stepfather is a different person now. However, in early 2022, the stepfather showed his true colours during the flood event that occurred in Brisbane.
A small business in Suburb Y traded in parts. In early 2022, the business was flooded and the premises and stock were submerged. A large quantity of stock floated a short distance away from the premises. When the floodwaters began to subside the parts settled on the street.
That evening, police were making patrols of the flood affected areas. At about 7:30 PM they saw two vehicles, one of which was towing a trailer, driving the wrong way up an off-ramp onto the motorway. The motorway was at that time closed off by roadblocks.
Police intercepted the vehicles. The first vehicle was Motor Vehicle 1 which was being driven by the stepfather. The inside of the vehicle was packed with numerous parts. The second vehicle had a trailer. That trailer contained a large quantity of parts and there were more parts in the vehicle and front passenger compartment of the car towing the trailer. The driver of that vehicle was a relative of the stepfather.
The stepfather was questioned as to where the parts had come from. The stepfather said that he collected the parts from the roadway. Police questioned why the stepfather had collected the stock and the stepfather replied that he intended to take them to the tip. He then clarified that he meant the scrap metal recycler. Surely enough, he had not altered any of the parts, which is inconsistent with wanting to take the stock to a scrap metal dealer as some form of community act. He admitted that the parts were not his.
Police seized more than 50 parts. The small business from which they floated was located adjacent to where the stepfather admitted locating the stock. Those parts were salvageable and valued at about $150 each.
The stepfather was charged with, and later pleaded guilty to, a criminal offence. I consider that he was dealt with very leniently by the Magistrates Court which imposed community service work. The selfish, greedy actions of the stepfather and his later attempt to deceive the investigating police are nothing short of despicable as well as being thoroughly dishonest.
In the witness box the stepfather stuck to his story that he was not going to make any money but that he was doing a service by taking the parts to the scrap dealer. This is one of the worst excuses I have heard in all my years in the law. The stepfather was taking parts that were obviously the property of the adjacent small business and was driving on closed roads to do so.
The fact that the stepfather committed a crime would be enough for me to be very wary of his credibility, but for him to maintain such a ludicrous story leads me to conclude that I cannot accept any evidence that he has given unless it is corroborated from a reliable source.
Discussion
I have had the assistance of the evidence of Ms P and, as I have told the parties at the beginning of this trial, I have also had my own experience in dealing with sexually abused children, to help me to determine the issues. In saying this, I am acutely aware of the “admonition” of the High Court to Judges who attempt to use their “expertise” to determine matters in issue (see Dasreef Pty Ltd v Hawchar [2011] HCA 21).
I have taken judicial notice of the following matters:-
·a reaction of a child to the infliction of sexual abuse will be different for each and every child;
·there is no “hard and fast” manner in which a child must react if they are a victim of sexual abuse;
·the manner in which children disclose sexual abuse will be as individual as the child;
·the recounting of the commission of sexual abuse is often difficult for a child because of their age, the relationship they have with the perpetrator and the trauma of the memory as well as many other factors;
·generally speaking, children can divorce the actions of a person from their feelings towards that person; the greatest example of this is the affection that children have towards abusive parents.
Notwithstanding all of those matters, it is rare for a child, who has actually experienced a painful and traumatic episode of sexual abuse, to be “matter-of-fact”, exuberant or even blasé about the event when recounting it.
Demeanour of X
In this case, the mother, the stepfather, the maternal aunt and the maternal grandmother have all spoken of the very calm manner in which X has continually brought up this episode. According to the mother, stepfather and maternal aunt, X’s experience is that of penetration but it is an experience of interchanging vaginal penetration or anal penetration. According to the mother, the child complained that it hurt, crying out in pain some five hours after the infliction of the pain.
It is also a case where the child has no hesitation or embarrassment in just blurting out to persons the traumatic experience she had endured.
This demeanour is almost unheard of for very young children who are recounting actual lived experiences.
The manner in which the child disclosed these matters to Ms P, is very instructive. Ms P was taken aback by the lack of anxiety displayed by X and the manner in which she relayed the experience. The role of the mother seems to be pivotal in the way that X disclosed these matters to Ms P. It was as if the child was getting positive reinforcement whenever she would say these things. From the evidence of the maternal aunt and the maternal grandmother, it was clear to me that they were giving very subtle positive reinforcement to X each time she would mention these matters.
What is also troubling is that the mother and stepfather have said that the “prelude” to this event was smacking and growling by the father to the child. Yet, this complaint (which was so troubling that the child would cry and say that she did not ever want to go back to see her father) has never been repeated to any of the family members and, more importantly, to Ms P.
While those complaints may not be as serious as sexual abuse, they are still, nevertheless, serious. But, it would seem that X has forgotten them and not mentioned them to anyone again. This also is difficult to reconcile with what has occurred, considering that, in the way that these matters have been disclosed, the incidents are very much linked.
Behaviour of the mother (and stepfather)
Another aspect, that is very troubling, revolves around the behaviour of the mother. On the tale that the mother has told, she has been so concerned with the disclosures that X made about smacking and growling, she goes to see the police straight after changeover in late 2021. Yet, less than four hours later, X has made an allegation of sexual abuse.
There has been no credible explanation by the mother as to why she didn’t go straight back to the police. She had already spoken to a police officer, who had, objectively, treated her very well and very appropriately (as can be seen in Exhibit 2). One would think that the police station would be the first port of call for the mother and stepfather. The excuse of the mother is that she decided to report the matter to Department of Child Safety instead as she thought that this was the most appropriate course. The stepfather explained that he left the decision up to the mother.
The mother may have decided to make the complaint to the Department of Child Safety, but she didn’t do so until some days later. The mother gave no credible explanation for her delay in making the complaint. But once the complaint was made, the mother did nothing further to assist in the process; in fact, the mother did nothing at all.
As earlier noted, the notations of both the police and Child Safety is that numerous attempts to contact the mother and the stepfather were made and messages were left for them to make contact. Yet all those calls were left unanswered and unreturned. The mother testified that she was not contacted by anyone. In the light of the evidence contained in Exhibit 1, I simply cannot accept her evidence on this point.
But what is even more bizarre is that the maternal aunt and the maternal grandmother gave evidence that the mother had told them that she had gone to the police and the matter was being investigated. This was repeated by those two witnesses in a very adamant fashion. However, the mother did not go to the police about the claims of sexual abuse. The maternal aunt and the maternal grandmother said that they took no action when X made her disclosures because the mother had said that she had already gone to the police.
Problems
In analysing the evidence that has been put before the Court, there are many problems in the tale that has been told. When one steps back and objectively looks at what is alleged to have happened, the problems become quite evident.
When the parents separated, the father was spending frequent time with X and was often spending that time alone and unsupervised.
When the stepfather came onto the scene and COVID-19 restrictions were put in place, that contact was curtailed and the mother insisted that contact not occur because of the fear of the virus.
When the restrictions were lifted, the mother insisted that time with the father be supervised because the effluxion of time meant that the father was a stranger to X. The father then brought this application before the Court.
Supervised time with the brother and sister-in-law of the father was then instituted by me and, after some time had occurred under that regime, all of the issues that were preventing the father having unsupervised time were soon addressed.
Unsupervised time then occurred and a family report was commissioned. The mother raised the spectre of “family violence” but this was not seen as an issue by the family report writer. There seemed to now be no reason why the matter could not be resolved; there were no issues left for the mother to raise.
Then, after the family report interviews but before the mediation, the allegation surface that the father, for some unknown reason, has started growling at X and smacking her on the arm and the face. X is apparently upset and tells her mother that she does not want to see the father again, yet when she is dropped off at the house of her uncle and aunt, those two people notice nothing awry with X. (I do note that the mother claimed that the child was “acting” so as not to attract undue attention, but, as I said during the course of the trial, to do this X would have to do have been a better actress than Meryl Streep)
When these fresh matters were then raised by the mother at mediation, the ICL and the mediator proposed a solution that would reduce this risk, so that, yet again, there was no barrier to the father continuing to have unsupervised time with the child.
As the time for signing the proposed consent orders drew closer, and knowing that the mother had made allegations about smacking and growling, it seems ludicrous that the father should then decide to start sexually abusing his own daughter and do so in the lounge room of his brother’s house.
It also seems absurd that he would tell X not to tell the mother about his smacking or growling but make no admonition not to tell about the sexual abuse.
It further defies common sense that, despite X almost immediately disclosing each time that the father had smacked and growled at her, she did not disclose the sexual abuse that had just been perpetrated upon her, despite being injured and in pain.
It is also curious as to why the mother didn’t photograph the injury.
When the mother later recounted the events to the family report writer there are again material differences in her versions. There was no mention of the scratch but now there was an allegation that the child told the father to stop but that he had refused.
The inconsistencies in the accounts as to what was told to the doctor, what was told to the family report writer, what was written in their affidavits and what was said in their evidence before this Court, cannot be explained by mere forgetfulness or lapse of memory. These are material errors and are due to the invention of the allegations and the fact that they are not the recounting of a lived experience.
Added to these problems in the evidence, is the fact that, notwithstanding the mother had been at the police station 4 to 5 hours earlier, she did not notify any authorities about this far more serious allegation until two days later, when she simply made a notification to the Department of Child Safety.
Four days after the alleged disclosure (in late 2021) the mother took the child to Dr S and outlined the complaint but did not tell the doctor about the scratch. The doctor examined the child and did not see any scratch or anything untoward in the genital or anal area.
A short time later, the mother contacted the ICL and the father and told them that she would not be sending X to spend time with the father because of these allegations. Yet over the next two months, the police and Child Safety made numerous attempts to contact the mother and the stepfather about the complaint but their calls and messages were left unanswered or unreturned.
If I accept the evidence of the maternal aunt and maternal grandmother, the mother therefore lied to them that a complaint had been made to the police.
I have already mentioned the unnatural manner in which the child exuberantly, matter-of-factly and spontaneously recounted the alleged sexual abuse to the maternal family. Added to this however, is the material change in her story from the original version, that her “bum bum was hurting” and that he put his finger in there, to the addition of him touching her “wee wee” as stated by the mother, stepfather and maternal aunt.
The story has also changed from the abuse happening in the lounge room of the uncle’s house to X telling Ms P that it occurred in the father’s bedroom.
All of these issues with the evidence cumulatively give me a very grave reservations as to the veracity of this story.
The solution
I have outlined all of the problems and all of the inconsistencies involving these allegations. How is it that a Court can make sense of these very serious allegations and take into account all of the problems and inconsistencies?
The answer is simple and it is contained in what the child said to Ms P in the family report.
The mother has complained that she did not realise that the child was going to be interviewed by Ms P and that can be seen as illustrating the real problem in this matter. The mother tried to paint this out as being something that was corroborative to her story because she acknowledges that she would not have had an opportunity to coach the child, and yet X still told Ms P that the father had put his finger in her bottom.
But this totally misses the point. The manner in which X said this to Ms P was the thing that prompted her next question which was “how do you know this?”
The answer of the child is the answer to all of the problems associated with these allegations. X said, quite unequivocally, that she knew this because “mummy told me”.
This statement explains everything.
What it does illustrate is that the mother has never really wanted the father in X’s life ever since the stepfather became part of the mother’s life. The fact that the mother tells a child to refer to the stepfather as daddy and refer to the father as “[Mr Potter]”, speaks volumes as to where the mother sees the father in the child’s life.
This explains why, after the COVID-19 restrictions were lifted, the mother insisted on supervised time and why she puts so much store in the allegations that she made in her first affidavit and in her notice of risk. But when she realised that these allegations did not have the desired result of putting a halt to contact, the mother “upped the ante” and she made allegations of growling and physical slapping.
When those allegations were effectively “put to bed” by the tweaking of the proposed draft orders by the ICL (for changeover at a contact centre) and the mother realised that she again didn’t get what she wanted, she “upped the ante” yet again and made allegations of a sexual nature.
This is why there was no complaint in late 2021 to the police.
This is why the mother did not make an allegation about the scratch to Dr S or to Ms P.
This is why the detail, as to into which orifice the father’s finger was inserted, changes.
Most importantly, this is why the calls from the police and the Department of Child safety were not answered or returned. The mother simply did not want the forensic scrutiny that an investigation would bring.
The mother had at last gotten what she wanted, because of the order made by this Court on 2 December 2021 for contact to cease.
Other aspects of the Family Report
The evidence of Ms P was extremely helpful. Ms P came to a similar conclusion to myself which is that the mother is never going to foster a relationship between X and her father. Ms P said that if the Court comes to the view that these allegations have been fabricated by the mother (and the stepfather), there is a danger for X remaining in the care of the mother.
As X has a right to a relationship with her father, if it is both safe for her and in her best interests, it is clear that those rights will never be able to be truly exercised if X remains in the predominant care of the mother.
In such a case, Ms P opined that the only solution would be changing the residence of the child and instituting a moratorium wherein the mother would not have contact with X for no less than three months. After that time, contact could slowly resume.
Ms P said that the mother will not accept a Court finding that the sexual abuse allegations were fabricated. She said that the mother will need psychological support and assistance to be able to get through the resulting sense of grief and loss. Ms P also said that the mother has minimised the abuse of herself and her younger brother by the brothers in the family.
Application of the Act
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s 61DA (“the presumption of equal shared parental responsibility”) and s 65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s 64B of the Act.
In deciding whether to make a particular parenting order s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s 60CC(2) the “primary considerations” and s 60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s 60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s 60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s 60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG).
I will also be guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
Application of law to the circumstances of the case
I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made and how they apply in determining what parenting orders are most likely to promote the best interests of X.
Primary considerations – section 60B
Turning firstly to the application of the primary considerations namely;
(a)the benefit to the children of having a meaningful relationship with both parents
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
(a)It is important to X that she has a meaningful relationship with both her mother and father, and
(b)There is a very great need to protect X from being exposed to the risk of family violence, harm or abuse, particularly emotional abuse.
My reasons for reaching those conclusions are as follows:
(a)Both parents to their credit acknowledge that it is important for the children to have a meaningful relationship with the other parent. Unfortunately, it is only the father who is committed to X having a meaningful relationship with the mother whereas the mother is not committed to X having a meaningful relationship with the father.
(b)As I have already mentioned, to fabricate allegations against a parent and recruit the child into playing a part in that fabrication, is one of the worst ways in which a parent can abuse a child.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X. Having made these findings, s 60CC(2A) does have relevance here.
Additional considerations – section 60CC(3)
Going through the considerations seriatim, I find as follows:-
(a)In my view, X is too young to be able to form any firm and considered view about this subject.
(b)There is no doubt that the mother has a very close and loving relationship with X. The observations made by Ms P on both occasions as well as the notations from U Contact Centre illustrate that the father also has a very close and loving relationship with X. X does have close relationships to her stepfather and her half-brothers as well as with her maternal and paternal extended families.
(c)I have spoken of this circumstance in detailing the history of the matter and need not discuss this aspect further.
(ca)I am satisfied that both parents have, and will continue to, carry out their obligations to maintain X.
(d)This aspect has had particular significance in this case and I will address the matter further, later in these reasons.
(e)Because of the areas that the parents have now chosen to live, this means that there will be great practical difficulties with X spending time with the parent with whom she is not living for the majority of her time, other than weekend time.
(f)The findings that I have made in regard to the substantial issues in this matter relate to this particular circumstance.
(g)I have taken into account these considerations.
(h)This circumstance does not apply
(i)As I have found, the responsibility to parenthood of the mother has been appalling. The responsibility to parenthood goes beyond feeding, clothing and housing a child. It extends to teaching them right from wrong and giving them an example to look upon as to how to act as a decent member of society.
(j)I have looked at the claims that the mother has made in this regard. Whilst not dismissing those concerns, I am in agreement with the observations made by Ms P as to how these matters affect the orders I need to make.
(k)This circumstance does not apply
(l)In making these orders, I have no doubt that the mother will exercise her right of appeal. But, if the factual conclusions I have made are correct, there is no other responsible order that a Court could make other than the ones which I will make.
(m)I have detailed, in these reasons, all matters that I consider relevant.
Parental responsibility
Under s 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the children, or family violence.
In this case, having regard to the findings I have made, X needs to be protected from abuse or family violence. This means that the presumption does not apply.
I must still consider whether it is in the best interests of X for there to be equal shared parental responsibility. Such an order would mean that the father must be able to communicate and attempt to reach agreement with a person who has deliberately made false accusations against him. The father is still amenable to such a regime (which is illustrative of his innate decency), but I am of the view that such a regime is not tenable.
I will order that the father have sole parental responsibility but that he will have to consult with the mother before making any major decision.
Conclusions as to parenting
As Ms P said, a number of times during her evidence, this matter is an extremely difficult one for any judge to preside over and to rule upon.
It must be remembered that the father is, at the present time, living in a share accommodation where he pays rent for a room. His present circumstances do not allow him to have any overnight time with X and no court, especially this Court, would ever allow overnight time unless the father has his own accommodation or he was to live with his brother and sister‑in‑law.
Yet, the only conclusion that the Court can come to is that X is in danger living with a mother (and stepfather) who have fabricated a most heinous allegation against the father for the sole purpose of denying, to X, her right to have a relationship with her father. To slander a person’s name and reputation in this way is more than just reprehensible; it is worthy of the strongest condemnation that this Court can give.
But the question that I must answer remains “what is in the best interests of X?” Even though the mother must be condemned for her actions, does that mean that it is in the best interests of X to now live with her father? To answer this question, I must take into account the evidence of Mr N, the elder brother of the father.
Mr N gave evidence that he now has two spare bedrooms in his house and that he and his wife would be happy for the father and X to live with them. Each would have their own room. The only caveat on this proposal is that, quite rightly, Mr N is concerned that the mother’s wrath may now extend to him and that she will make accusations about him in the same way that the father had allegations made against him. At the beginning of the trial, I would have found such concerns to be risible but now, having gone through all of the evidence, I can well and truly understand the reticence that Mr N may have.
The offer that has been made by Mr N also reflects the decency of himself and his wife. This would be a “stopgap” measure only; the father cannot rely upon his brother’s generosity indefinitely. It is incumbent upon the father to step out on his own and become the provider and carer that X needs him to be. Whilst I understand that the father did have aims of securing sufficient money to be able to marry and live with his new girlfriend, those plans will have to change to include X if it is that the child is to be kept safe from the emotional manipulation inherent in the household of the mother.
The other issues that I have with the “stopgap” solution, are that X would have to change her current school and medical practitioners to ones that are in the Suburb CC area rather than the Suburb DD area. This forces the father to look for permanent accommodation in the Suburb CC area so as to maintain continuity for X in the form of education and health providers. This is not an inexpensive exercise.
I am also acutely aware that X has lived with her mother for the whole of her life. I am aware that she has lived with the stepfather for a significant period of her life. I am also cognizant of her relationship with her younger half-brothers, L and M. I do have some concerns about what impact there will be on X if she is removed from this household.
On balance, I am of the view that the danger posed by the mother is too great for me to allow X to remain in the mother’s primary care. The mother has been content to allow X to grow up thinking that she has been sexually abused by her own father. It is difficult to imagine a worse case of emotional abuse of a child. For these reasons, the misgivings I may have about the situation, which the father will now face, are far outweighed by the risk if X continued with the status quo.
It is for this reason that I will be ordering that X live with the father.
I am of the view that, for this new regime to be successful, there needs to be a moratorium on contact between the mother and X for a not insignificant period. After this period has concluded, there should be a slow reintroduction of X to the household of the mother gradually increasing to overnight time on alternate weekends.
I am confident that Ms P supports the moratorium. Whilst the ICL did not support the moratorium because of the amount of time that X would not be with her half-brothers, I am of the view that this concern is outweighed by the need for X to “detox” from the insidious manipulation of the mother if she is to have the relationship she deserves to have with her father.
I will also make a s 65L order that my orders be explained to X by a Court Child expert. I will make an order allowing the father to distribute a copy of these reasons to any school or medical professional upon whom X attends. I will authorise the ICL to give a copy of these reasons to the Department of Child safety and to the Queensland police service to ensure that the “hole” in their records is appropriately filled. This would also alleviate the concerns that have been expressed by Mr N.
I will discharge the ICL, with the gratitude of the court, upon the expiration of the appeal period.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 26 May 2023
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