PRENTICE & WILFRED

[2017] FamCA 290

FAMILY COURT OF AUSTRALIA

PRENTICE & WILFRED [2017] FamCA 290

FAMILY LAW – CHILDREN – With whom the child shall live – Where the mother makes allegations that the child was sexually abused by the father – Where the mother recorded the child’s statements – Where the mother claims the child will be at an unacceptable risk of harm in the father’s care – Where no unacceptable risk was found – Where the mother orchestrated the allegations of sexual abuse – Where the mother makes false allegation of rape against the father – Where the risk of psychological harm if the child remains with the mother is unacceptable – Where the child shall live with the father – Where the father has sole parental responsibility of the child.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172

Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69

SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Mr Prentice

RESPONDENT: Ms Wilfred

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland

FILE NUMBER: ROC 88 of 2014

DATE DELIVERED: 11 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 29 - 31 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Duffield & Associates Solicitors

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Browns Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Order

1. All previous parenting orders are discharged.

2. Except as otherwise provided for by this Order, the father is to have sole parental responsibility for the major long term parenting issues of the child B born … 2013 (“the child”).

3. The father shall, prior to making any decision about a major long term issue (as the term is defined by s 4 of the Family Law Act 1975 (Cth)) in the exercise of his sole parental responsibility, inform the mother of the decision he proposes to make and consider any views expressed by the mother. The father shall then inform the mother of any decision made and provide reasons for his decision.

4. The child shall live with the father.

5. The child shall spend time and communicate with the mother at all times as may be agreed between the parties, in writing, and failing agreement on one occasion every three weeks on a Saturday and Sunday at the C Town Contact Centre for the maximum period permitted by the Centre and shall be supervised by a person engaged by the Centre.

6. The costs of supervision shall be shared equally between the parents.

7. The father and mother shall forthwith take all steps necessary to attend an intake interview at the C Town Contact Centre.

8. The mother is to notify the father at least forty-eight (48) hours prior to her time with the child if she is unable to attend for such time.

9. The mother is to communicate with the child by contacting the father’s landline, mobile telephone or by FaceTime/Skype (as they are available) at all reasonable times, but not less than:

   (a)       Weekly on Tuesday and Thursday between 6.00 pm and 7.00 pm; and

   (b)       On the child’s birthday, the mother’s birthday, Christmas Day and Mother’s Day between 9.00 am and 10.00 am.

10. For the purposes of order (9), the father is to ensure that the child is available to receive such communications from the mother and is to answer same in the first instance.

11. The mother and father shall:

    (a)       Keep the other informed at all times of their landline contact telephone number for the purposes of facilitating telephone communication and a mobile phone number in the event of an emergency;

    (b)       Keep the other parent informed of the suburb in which they are residing and inform the other parent if they relocate their residence.

12. The father shall:

    (a)       Keep the mother informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the mother with information that they are lawfully able to provide about the child;

    (b)       Inform the mother as soon as reasonably practicable of any significant medical condition, significant health issue or illness suffered by the child.  This Order authorises any treating medical practitioner to release the child’s medical information to the mother.

13. The parents authorise, by this Order, the school or day care centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent’s cost).

14. During the time the child is with either parent, that parent shall:

    (a)       Respect the privacy of the other parent and not question the child about the personal life of the other parent or these proceedings;

    (b)       Speak of the other parent and the parent’s family members and friends respectfully; and

    (c)       Not denigrate or insult the other parent, family members and friends of the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

15. The mother is restrained and an injunction hereby issues restraining the mother from attending the child’s school/child care facility without the prior written consent of the father.

16. The mother is restrained and an injunction hereby issues restraining the mother from further publishing or disseminating in any way, the 14 videos recorded by her of the child in these proceedings.  Further, the mother is to take all steps to destroy all of the 14 videos after the expiration of thirty days.

17. The father shall engage with a paediatrician in or around his residence and obtain a referral to a suitable counsellor/child psychologist for the child for the purposes of assisting the child (if necessary) with adjusting to the changes associated with this Order.  Further, the father is at liberty to provide a copy of this Order and the reasons for judgment to the said paediatrician and/or counsellor and/or psychologist.

18. The father is to continue attending counselling with D Group at E Town as recommended by the service.

19. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

20. All outstanding applications are otherwise dismissed.

21. The Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 88  of 2014

Mr Prentice

Applicant

And

Ms Wilfred

Respondent

REASONS FOR JUDGMENT

1. The applicant is the father of B born in 2013, and the respondent is her mother.

2. The father is seeking an order for the child to live with him and spend supervised time with the mother. The mother is seeking an order that the child continue to live with her and until the commencement of the trial she sought an order that the child spend no time with the father. At the commencement of the hearing the mother’s counsel advised the Court that her client is now seeking a continuation of supervised time for the father. Each party is seeking an order for sole parental responsibility.

issues for determination

1. The following issues have been identified as significant given the focus of the case:

   a)Is there an unacceptable risk of the child being sexually abused by the father;

   b)Has the mother orchestrated the allegations of sexual abuse against the father;

   c)Is there an unacceptable risk of the child being exposed to emotional and psychological harm if she remains in the mother’s care;

   d)Is the mother capable of facilitating the child spending time with the father if there is no unacceptable risk of harm from the father;

   e)What impact would there be on the child if she were removed from the primary care of the mother.

background

1. The father was born in the United Kingdom and migrated to Australia about eleven years ago. He is a thirty-three year old self-employed tradesman. He lives in a regional town in Queensland.

2. The father is in a relationship with Ms F, aged thirty-six, and they plan to marry in August this year. They met via a dating site in mid-2015 and were living together at the time of the first family report interviews in February 2016. Ms F has two children, a boy aged fifteen and a girl aged thirteen who attend boarding school and spend alternate weeks of the school holidays with Ms F and the father. The other weeks they spend with their father. Ms F says that her children and the father have a fantastic relationship. Ms F is the general manager of a local motel.

3. The mother is a thirty-eight year old full time student studying hospitality. She lives at G Town, Queensland and receives Centrelink benefits. She states that she has various qualifications.   

4. According to the father, he and the mother had a brief relationship from about October 2012 until January 2013 when the mother was working in the regional town in which he lives. The mother denies any relationship and says they had a “one night stand” involving “non-consensual sex”. The father denies both allegations.

5. It seems that the mother and father had a reasonably civil relationship up until January 2013. The father stayed at the mother’s home on several occasions and he attended the first ultra sound appointment. He also provided financial assistance to the mother.

6. The mother deposes to the father’s attitude towards her changing in or about January 2013. She says he became hostile and abusive and would not return her messages or take her calls. On 30 May 2013 she received a letter from the father’s lawyer which advised her of the father’s concerns for the welfare of the unborn child but also including (rather unhelpfully):

   … unless you return to the [E Town] area immediately following the birth of the child we have instructions that our client will be immediately filing a Recovery Order to bring the child back to [E Town].

7. The mother has a history of anxiety and depression and consulted a psychologist, Dr H, historically and in more recent times. She also has a history of heavy alcohol intake “all her life and up until six weeks gestation”. the child’s due date was 19 July 2013.

8. The mother spent two periods of three weeks as a patient in a Rehabilitation Clinic in 2009 for treatment of stress, anxiety and alcohol abuse.

9. The mother gives no direct evidence about her history of alcohol abuse or marijuana use but it is apparent from exhibit 2 that she has an extensive drink driving history and has lost her licence on six occasions. The mother also provided information to Ms I, the family report writer, that she was required to have an interlock breathalyser system installed in her car until February 2016. The mother conceded that she also has a history of significant marijuana use. She denied that she has consumed alcohol to excess or used illicit substances since becoming pregnant with the child although I note from exhibit 2 that the mother continued to drink to excess until six weeks gestation. The father also gave unchallenged evidence that on the three occasions that he stayed at the mother’s home after she became pregnant she drank alcohol to excess and used marijuana.

10. The father spent no time with the child until she was seven months of age. Parentage testing confirmed that the child was the father’s child in October 2013. He first spent time with her in February 2014 supervised by the maternal grandmother.  

11. The father first spent unsupervised time with the child in July 2014. He spent several hours with her each alternate weekend on Saturday and Sunday. This involved a round trip for the father of between sixteen to twenty hours.

12. Final parenting orders were made by consent on 22 July 2015 providing for the parents to have equal shared parental responsibility and for the child to live with the mother and spend gradually increasing unsupervised time with the father including overnights and half school holidays. That order was complied with until 25 October 2015 (prior to the father’s time with the child progressing to overnight). the child was two years and three months old. The mother refused to return the child to the father alleging that the child had been sexually abused by him.

13. The father did not spend any time with the child from 25 October 2015 until 28 January 2016. His time has been supervised since that time. He spends time with the child each alternate weekend for three hours on Saturday and three hours on Sunday. The costs associated with spending time with the child including travel, accommodation and supervision are $1800 per month. It continues to involve a round trip for the father of between sixteen to twenty hours.

14. The father commenced these proceedings on 18 December 2015 and filed a Notice of Child Abuse alleging that the mother had made false sexual abuse allegations against him and prevented him from seeing the child. He also alleged that the child was at risk from the mother due to neglect, excessive alcohol consumption and substance abuse although the latter allegations were not pressed at the trial. 

15. On 18 January 2016 the mother filed a Notice of Child Abuse alleging that on various dates that she could not particularise but during the period November 2014 until October 2015 the father abused the child by inserting his fingers into her vagina and that the child had made disclosures of that abuse to the mother and members of her family and friends.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes physical and sexual assault and causing a child to suffer serious psychological harm.

5. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

6. Section 61C provides that each parent has parental responsibility for a child, subject to any order made by the Court.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

11. In cases, such as the present, where a party alleges that a child will be exposed to an unacceptable risk of harm the Court is required to identify the nature of the harm and assess its magnitude and if the risk is unacceptable assess the extent to which the risk can be ameliorated by an order such as supervision.[4] 

    [4]M & M (1988) 166 CLR 69

the sexual abuse allegations

1. The mother stated numerous times in her oral evidence that as at 22 July 2015 (when the consent order was made) she had no concerns that the child was at risk of harm from the father.

2. Yet in her affidavit filed 18 February 2016 the first piece of evidence said to be relevant to this issue occurred in November 2014 when she noticed that the child’s “vagina was red and swollen and the child seemed very distressed when she returned from a court ordered visit with [Mr Prentice]” and “kept trying to touch her vagina and she was crying a lot”. In her oral evidence it became apparent that she was not referring to the child’s actual vagina but her external genitalia namely the mons pubis and labia which the mother referred to as the ‘lips’. She also stated that at the time it did not enter her head that what she observed was indicative of sexual abuse and she treated the redness by applying a cream to the affected area using a cotton ball. Initially she said that she used a cotton bud. She stated that in order to apply the cream she parted the child’s labia and she observed that this appeared to cause the child some pain. She said that the condition had completely resolved by the following afternoon. She did not seek medical attention and did not inform the father.  

1. The maternal grandmother says that when the child was around fourteen months of age (September 2014) she would touch her genitals and say “dada, dada”.

2. The mother deposes that upon the child’s return from her father during December 2014 and January 2015 she started touching her vagina and saying “daddy daddy daddy”. Again it became apparent that the mother was referring to the outer genitalia and that at the time she thought nothing of it. At that time the child was aged between seventeen and eighteen months respectively.

3. The mother stated in her oral evidence that the child suffered from nappy rash and eczema during this time and that cream was applied to the vulva and buttocks as a treatment for those conditions. She supplied creams to the father.

4. The father was cross-examined about applying the nappy rash cream and he conceded that he did so. It was suggested to him that when changing the child’s nappy and in order for him to ensure the child was clean that the father would have parted the child’s labia and he agreed that he did so. It was not suggested that there was anything inappropriate in his doing so.

5. The cross-examination then went further and it was ‘put’ to the father that while changing the child’s nappy he inserted his fingers into the child’s vagina and he denied that allegation.

6. It was then ‘put’ that he rubbed the child’s clitoris to make it an ‘enjoyable experience’ for the child. There is no evidence that the father did any such thing and it was conceded by counsel for the mother that this was mere speculation.

7. The mother says that on 12 February 2015 she told her General Practitioner, Dr J, that “[The child’s] vagina was red and swollen when she returned from visits with [Mr Prentice] and her change in behaviour”. The mother gives only one account of the child having a red and swollen ‘vagina’ and that was in November 2014 as previously discussed.

8. On 16 February 2015 the mother returned to see Dr J to discuss her concerns regarding the child. She says that the doctor told her that the child was too young to examine and that a notification to authorities would be likely to cause problems for the father.

9. The mother and/or the maternal grandmother attended upon Dr J on three separate occasions around this period in relation to concerns they said they had about the child being sexually abused by the father.

10. The evidence up to this point comprises solely, that the child had a red and swollen vulva on one occasion and that on occasions at nappy change time the child would point to her genitalia and say ‘dada’ or ‘daddy’.

11. On 8 April 2015 the mother had a long telephone discussion with Dr K, Child Protection Advisor to G Town Hospital. Dr K in a letter to the referring GP, Dr J, states inter alia:

    …

    The difficulty is the child’s age (20 months) and what interpretation one can place on these behaviours. She is too young to tell what is happening (if anything) and redness of the genital region is rated on the standard Adam’s classification as “findings commonly seen in the non-abused which neither confirm nor deny a disclosure of abuse”.

    …

    Touching in the genital region is too common to be diagnostic.

    …

    I discussed all this with mother. She decided not to proceed with an examination. I left open my willingness to discuss this further if more problems arise.

12. In his oral evidence Dr K stated it was a mutual decision not to proceed with a genital examination at the time.

13. There have been nine Child Concern Reports recorded by the Department of Communities, Child Safety and Disability Services (“the Department”) since June 2013. Some relate to the allegations of the mother drinking alcohol to excess and smoking marijuana during her pregnancy but most relate to concerns about the child’s behaviour.

14. On 26 August 2015 information was received by the Department relating to alleged ‘changes in behaviour’ observed in the child from November 2014. The rationale for recording the information as a Child Concern Report rather than a Notification, requiring further investigation, included that the mother had agreed to a final parenting order acknowledging that the child was not at risk from the father and when the child was taken to a GP earlier in the year it was determined that the changes in behaviour could be for many reasons. 

15. Neither the mother nor her sister, Ms L, nor the maternal grandmother depose in their affidavits to any behaviour or observation made by them which caused them concern between 29 March 2015 and 22 October 2015.

16. On 22 October 2015 at 3.40pm the mother made what she says is her first video recording relating to the allegations. the child was then two years and nearly three months. In that video the child is sitting on a couch naked from the waist down, pulling her labia apart with a somewhat transfixed look on her face looking into the camera. The mother asks what she is doing and the child says something unintelligible to which the mother responds “whose finger goes in there?” which elicits the response “daddy”. The child then bends forward to look at her genitalia while pulling her labia further apart and putting her right index finger into her vagina and when her mother asks her if she just put her finger in there (it is obvious she has just done so) the child responds “no Daddy”.

17. The mother stated in her oral evidence that as a result of what she had seen, she was hysterical and in tears and called her mother. She sent the recording to her mother’s phone.

18. The next video recording was taken on 23 October 2015 at 9.03am. Again the child is sitting on a couch but this time is completely naked. There are sounds of voices in the background (possibly a television). The child again pulls her labia apart and says “daddy” and the mother says “daddy what”. Again the child says something unintelligible[5] to which the mother responds “his finger in where?”. The child pulls her labia further apart and puts the tip of her finger into her vagina and says “daddy”. The mother says “I think you are just playing. Are you just playing” and the child says “nah” and looks at her genitalia. The mother says “You shouldn’t be doing that [B]. You shouldn’t be putting your fingers in there” but makes no move to stop her doing so. She continues recording. The child responds “daddy daddy”.

    [5] I note that the transcript (exhibit 14) states the child says “daddy finger in there”. That statement is not clear on my review of the recording.

19. On 23 October 2015 the mother says that she telephoned a sexual assault counselling service called M Group who advised her to speak to her lawyer.

20. On 25 October 2015 the mother says that her sister, Ms L, told her that she saw the child trying to put her finger into her vagina and said “daddy finger in here … daddy does this”. The ellipsis would indicate that something else was said but that is not disclosed. I note that Ms L says in her affidavit that the child pointed to her vagina and the following exchange occurred:

    Child: Daddy’s finger in here

    [Ms L]: What was that, the child?

    Child: Daddy finger here

    [Ms L]: Oh no, Daddy is not allowed to do that the child

    The exchange indicates that Ms L was initially unsure what the child said.

21. On 28 October 2015 information was again received by the Department. This time it was alleged that the child had made ‘disclosures’ that the father had inserted his fingers into her vagina. The information provided also stated that Dr K, child protection doctor at G Town Hospital, had told the mother that it is normal for children to touch their genitals. U Group also told the mother the same thing. The information was recorded as a Child Concern Report. The rationale included the conclusion:

    … It is noted that the child is only two years old and while it is possible that she has made disclosures of harm, due to her developmental age, it is unlikely that she has made the clear disclosures which the Notifier alleges she has made. … Child Safety has made a Police referral. …

22. On 30 October 2015 the mother attended the Suburb N Police Station in the company of her sister, Ms L, and informed them that in November 2014 she suspected the father had inserted his finger into the child’s vagina causing it to be red and swollen. She provided to police her video recording of the child taken on 22 October 2015 and it was copied by police to a disc. The mother provided a statement and while she was at the police station the child was delivered to her by Ms O (a friend and babysitter).

23. On 5 November 2015 the mother, through her lawyers, informed the father that she was suspending his time with the child because of “certain disclosures recently made by the child [B] to our client, other adults and Queensland Police regarding abuse of a sexual nature occurring whilst in your household”.

24. I observe that there is no evidence that the child made any ‘disclosure’ at any time to a member of the Queensland Police Service. In fact the evidence is to the contrary.

25. On the same day the father, through his lawyers, noted that he had not been contacted by the police and he sought details of any allegations and against whom any allegations were being made.

26. On 6 November 2015 the mother, through her lawyers, declined to provide any further information.

27. On 6 November 2015 Ms L deposes that they had just come home from the police station and the child had her sleep after they got home. When she woke up Ms L was changing her in the lounge room and the child touched her vagina and said “daddy finger in here”. Ms L said “[B] what did you say?” and she said “daddy finger in here”. Ms L said “Daddy is not allowed to do that. If he tries to do that you are to say NO or STOP DADDY”.

28. Another video recording was made on that same day, 6 November 2015 at 1.58pm. It is not clear whether it was made before or after the account given by Ms L. The child is on a couch and naked from the waist down. The mother’s sister, Ms L, is sitting next to the child and as soon as the camera approaches the child says “[indistinct] daddy hinger here”[6] while pushing her finger towards her labia. Ms L looks shocked. The mother tells the child to take her hand away from her genitals.

    [6] I note that the transcript (exhibit 14) states the child said “daddy finger here” but the word “finger” is not clear on my review of the recording but it could be the word finger. 

29. For a period the father continued to travel to G Town in the hope that the court ordered time would occur. The maternal grandmother says of this period:

    The next few fortnights [Mr Prentice] did come down from [E Town] to [G Town] and wait at the pickup point even though he was advised that visits were not on. This behaviour was very disturbing to us. So much so that [Ms Wilfred] and the child came to stay with me on those weekends.  

30. It is unclear why the father’s behaviour was viewed as ‘disturbing’.

31. The police finalised their investigation on 14 November 2015 recording that “it is highly doubtful the offence occurred”.

32. The mother told Dr P, psychologist, that when she asked the police prosecutor why they said there was not enough evidence she was told that she could have set the videos up and cued the child in her responses.

33. On 29 November 2015 while the child was sitting on the couch with Ms L, naked from the waist down, Ms L alleges that the child said “daddy finger here” while pointing to her vagina. Ms L responded “What did you say?” and the child said “Daddy’s finger in here”. Ms L said “[The child], Daddy is not allowed to do that”. This exchange is remarkably similar to the exchange that is alleged to have occurred between Ms L and the child on 25 October 2015 and again indicates that Ms L did not initially understand what the child said.

34. On 3 December 2015 the child was in the maternal grandmother’s car and was looking at photographs on the maternal grandmother’s phone. It is said that the child (aged two years and four months) accessed the video made by the mother on 22 October 2015 at 3.40pm which had been sent by the mother to the maternal grandmother. It is unclear how long the child was looking at the video although the maternal grandmother says she took the phone off the child immediately and said “that’s not nice, don’t look at that. Daddy doesn’t really do that does he?” to which the child responded “YES YES”. The maternal grandmother said “where does daddy do that?” and the child responded straight away “at daddy’s house, wee wees”.

35. Another video recording was made by the mother on 4 December 2015 at 7.02am. The child is sitting on the carpet near a pram with her dummy on the floor in front of her. She is naked from the waist down and her t-shirt is pulled up and folded so it is just below her chest. The child is intently looking at her genitals and as the camera approaches and the mother asks “what’s happening the child?” the child responds “daddy’s finger in there” while she puts her own finger into her vagina. The mother says “what are you talking about”. The child says “Daddy’s finger in there”.  The mother says “I don’t think so. No one is allowed to put their finger in there”.  The child says “No daddy daddy daddy daddy daddy in the finger in there”. The mother responds “Take your fingers out please. It is not good to play” and the recording abruptly stops.

36. On 7 December 2015 the maternal grandmother contacted U Group and says that she was told that the first thing is “TO BELIEVE THE CHILD as a child of that age has not learnt how to tell lies”.

37. On 9 December 2015 the father, through his lawyers, sought the resumption of his time with the child and, while denying any impropriety on his part, suggested that he have supervised time at a specific place and time and that he would meet the costs of supervision. 

38. On 15 December 2015 the mother rejected the father’s proposal but suggested supervised time occur at an alternate venue.

39. On 16 December 2015 the maternal grandmother spoke to a social worker at Infant Mental Health. She says she received advice to have the time with the father supervised for twelve months and then review the situation.

40. On 17 December 2015 the father noted that there was a three month waiting period at the venue proposed by the mother. The father provided another alterative.

41. Agreement was reached for supervised time as proposed by the father.

42. I note that the mother did not commence proceedings seeking a suspension of the July 2015 court order but rather the father commenced proceedings on 16 December 2015.

43. Yet another video recording was made on 5 January 2016 at 9.55pm and the child is again sitting on a couch naked from the waist down. She is touching her labia and pulling it apart and inspecting her genitals. She is putting her finger into her vagina. The following exchange takes place between the mother and the child:

    Mother: What are you doing [B]?

    Child: Daddy [indistinct] daddy

    Mother: What about daddy? You will see him soon

    Child: no daddy [indistinct][7]

    Mother: Daddy changes your

    [and recording abruptly stops]

    [7] I note that the transcript (exhibit 14) states the child said “no daddy [indistinct] go in there”. The last three words are not clear on review of exhibit 1.  

44. On 10 January 2016 at 4.20pm another video recording was made. The child is sitting on the carpet in what appears to be a lounge room. She is naked apart from a pair of shoes. There are sounds in the background, possibly a television. She is sucking on a dummy and appears to be watching something, perhaps the television. Her legs are together with her knees up. As the camera approaches and her mother says “what are you up to [B]?” she spits the dummy out and drops her knees to display her genitals. She then pulls her labia apart and says “daddy go in there”. The mother says “What are you talking about? Mummy’s cooking”. The child says “no, daddy”. The mother makes a comment about spaghetti bolognaise and the child again says “no daddy” and the mother says “what about daddy. I know it’s p” and recording abruptly stops.

45. On 11 January 2016 at 10.00am another video recording was made. The child is sitting naked on the carpet taking off her shoe and the mother asks if she is getting ready for a bath. The child runs into the bathroom which is behind her and then runs out and stands with her legs apart, squats and the following exchange occurs:

    Mother: What are you doing?

    Child: Daddy finger in there (and points to her genitals)

    Mother: Oh no

    Child: Daddy

    Mother: What do you mean darling?

    Child: No daddy

    Mother: You are ready to have a bath right?

    (The recording abruptly stops)[8]

    [8] On review of exhibit 1 there are a few words incorrectly transcribed or overlooked in exhibit 14.

46. On 15 January 2016 at 6.56pm another video recording was made. The child is lying on a bed naked from the waist down and her legs are apart. She points to her labia and the following exchange occurs:

    Child: Daddy finger in there

    Mother: I’m just putting your nappy on to go sleeping time

    Child: No daddy

    Mother: I don’t know what you are saying sweetie

    Child: No daddy

    Mother: No that is not daddy that is your special spot

    Child: No daddy

    Mother: What are you saying about daddy?

    Child: No daddy

    Mother: Daddy is not here darling. Let me put your nappy on. Ok. Good girl

47. On 18 January 2016 a Notice of Child Abuse was filed on behalf of the mother in which the following allegation is made:

    On various dates, which the Mother cannot particularise during the period November 2014 until October 2015 the Father [Mr Prentice] abused the child [B] by inserting the Father’s fingers into the vagina of the child thereby constituting a sexual assault of the child.

    The child has made disclosures of such abuse to the Mother and members of the Mother’s family and friends.

48. The child commenced therapy with Dr P on 18 January 2016. 

49. Another video recording was made on 30 January 2016 at 12.02pm. the child has a dress on but no underpants. She is hanging over the bath. The mother asks her what she is doing hanging over the bath and that it is time to go to nanna’s and asks if she has her “big girl” pants on. the child pulls up her dress and says “daddy go in there”. The mother responds “Daddy not allowed to go in there sweetheart”. The child says “No daddy”.

50. Yet another video recording was made on 30 January 2016 at 12.18pm. the child is lying on a bed in a nappy and pointing to outside of the nappy. The following exchange occurs:

    Child: daddy daddy finger in there

    Mother: No we are putting nappies on for sleep time

    Child: No I [indistinct][9] daddy finger in there

    [9] On review of exhibit 14 it states the child said “No I want daddy finger in there”. The word “want” is not clear on review of exhibit 1.

    Mother: I don’t know

    Child: no daddy. Daddy. [indistinct] finger in there

    Mother: You are going to see daddy next week. Do you want to see daddy?

    Child: Daddy finger in there

    Mother: Well you get to see daddy after ages. Is that exciting? You must miss daddy

    Child: [shakes her head]

    Mother: You must want to see daddy. You must want to see daddy

    Child: [shakes her head]

    Mother: How come?

    Child: no daddy [indistinct] at me

51. On 31 January 2016 at 8.05am another video recording was made. The child is naked in what appears to be a lounge room. There sounds to be a television on in the background which the child appears to be watching. She has her dummy in her mouth. The mother asks her why she has no clothes on. The child partially removes the dummy and while pointing to her labia says something indistinct.[10] The following exchange occurs:

    [10] On review of exhibit 1 the words attributed to the child in exhibit 14 on the second line “daddy’s finger down there” are indistinct.

    Mother: What are you saying?

    Child: No datty

    Mother: No one is allowed to touch there

    Child: No datty

    Mother: Well you have to tell him to stop

    Child: No daddy daddy daddy. [child pulling her labia apart]

    Mother: What about daddy darling

    Child: [indistinct]

    Mother: I don’t understand

    Child: Daddy down there

    Mother: He’s not allowed to go in there

52. Another video recording was made on 2 February 2016 at 2.59 pm. The child is naked from the waist down in what appears to be a lounge room. The child walks towards the camera. The mother asks the child to put on her “big girl” pants. The child shakes her head and the mother tells her the pants are just over there and that she cannot leave her pants off. The child says “Daddy’s fingee down there”. The mother says that daddy is not here now and asks the child again to put on her pants. The child says what sounds like “dirty” and points to her genitals. The mother responds - “I don’t understand what you are saying baby”. The child says something indistinct and the mother responds “Well that is very good that you’ve come and told me. Do you know what to say if somebody touches you?” and the child blows a raspberry.

1. The father commenced to spend supervised time with the child on 13 February 2016. All bar two of those sessions have been supervised by Ms Q.

2. While still having therapy with Dr P, the child commenced therapy with Dr R, psychologist, on 26 March 2016 and continued until 31 August 2016.

3. On 27 March 2016, during a supervised visit the child said “I want Daddy to put his finger in me”. When asked about the circumstances of this statement by Ms I, the family report writer, Ms Q (the supervisor) said “it was really very weird. the child looked odd and had a funny smirk on her face when she was saying it”. Later on during the same visit Ms Q noted that the child hugged the father and said “I love you daddy”.

4. On 9 April 2016, during a supervised visit the child said “Mummy says that Daddy is naughty”. 

5. On 10 April 2016 the mother informed Ms Q that the child had had a bad night’s sleep with nightmares and had said she did not want to come today. Ms Q noted that when the father arrived the child ran to the father and had to be called back to say goodbye to the mother. 

6. Supervised time proceeded throughout 2016 and into 2017. The records maintained by Ms Q indicate that the child has a good relationship with her father. She is spontaneously affectionate to him and the father demonstrates a capacity to appropriately care for the child in that setting. There are occasions when the child says to the father that she does not like him. On 14 August 2016 the child says she “needs to be nudie rudie for Daddy”. I note the mother conceded using the term ‘nudie rudie’.

7. Another video recording was made on 8 October 2016 at 7.42am. The child is in what appears to be a lounge room. She is wearing a pair of leggings and is pulling up her dress. The mother tells her to keep her dress on as they are going to see daddy now. The mother’s sister, Ms L, is seen sitting on the couch. The following exchange occurs:

   Child: Daddy touched me down there

   Mother: He does what?[11]  

   Child: He touches me down there

   Mother: Oh well that is not ok.[12] I am sure he didn’t

   Child: He did when I was a baby

   Mother: Well he is not allowed to do that. We are going to see him ok

   Child: I don’t like daddy I want to do painting

   Mother: Well when we come home we can do some beautiful painting. Does that sound good? [The child runs away]  Where are you going?

   Child: You take my picture in the bathroom

   Mother: Ok

   [emphasis added]

   [11] On review of exhibit 1 the mother does not say “He does not” as stated in the transcript but “He does what”.

   [12] Exhibit inaccurately states she said “Well that’s okay”.

8. On 8 October 2016 at 7.43am another video recording was made. The child is in the bathroom leaning over the bath. She is clothed. She gets into the bath. She says “I don’t like daddy touching me down there”. She points to her genitalia. The mother responds - “Well you have to say no not allowed”.

9. There is no medical evidence of any injury to the child which might be expected if the child’s vagina were penetrated by an adult male finger or fingers.

10. The mother says that she was told by the child’s treating General Medical Practitioner, Dr J and Dr K, paediatrician, that the child was too young to be examined.

11. Dr J denies the allegation that he said the child was too young to be examined.

12. Dr K said that in his discussion with the mother on 8 April 2015 it was a mutual decision that no medical examination of the child occur.

Evidence from Dr P

1. Dr P, clinical psychologist, provided a report addressed to “the Magistrate, Family Law Court” dated 19 January 2016. She recommended further investigations by appropriate authorities. She did not elaborate. No résumé is annexed to her report nor is any letter of instruction.  

2. On 18 January 2016 the child was seen by Dr P, on referral (her report says) from the maternal grandmother. She undertook an assessment of the mother and the maternal grandmother and also interviewed the child.

3. Her report sets out that she obtained information during an intake session with the mother, maternal grandmother and the child. She was also provided with a number of affidavits obtained by the mother.

4. Dr P notes that throughout the interview the child appeared happy, content and talkative.

5. When the child was asked to tell Dr P about her daddy, the child responded by moving her legs apart, pointing to her vagina and said “daddy finger in here” and then “no dummy”.

6. During Dr P’s interview with the maternal grandmother, the mother knocked on the door and said “I’m not sure if you can hear this but the child is constantly pointing to her vagina and saying ‘daddy’s finger in here’”.

7. During her interview with Dr P the mother reported that on one occasion when her sister, Ms L, was dropping the child off to her father (when time was unsupervised) the child was saying “no” and the father responded angrily “No, it’s always f’n No with you”. I note that Ms L gives a different account of this incident in her affidavit. Ms L does not allege that the father was angry nor that he used an expletive but goes on to say:

   … This seemed an odd thing for [Mr Prentice] to have come out and said, particularly when the child knows to say “no” if anyone tried to do anything hurtful to her.

   This is said to have occurred on 12 September 2015.

8. Dr P undertook therapy with the child and saw her with the mother and maternal grandmother on a further two occasions namely, 15 March and 8 April 2016. All sessions took place on the north side of Brisbane about two hours’ drive from the mother’s home.  At the time Dr P saw the child on 8 April 2016, she was aware that the child was also seeing another therapist at the same time. Dr P conceded during her oral evidence that it was ill advised to see the child given that the child may receive mixed messages from two therapists.

9. In addition, the mother had told Dr P that the child had previously been seeing a social worker at home. The mother told Dr P that the social worker did not want to get involved in any legal matters. It is apparent that the social worker referred to was Ms S.

10. Dr P saw some of the video recordings taken by the mother. Her only concern appeared to be that they may fall into the wrong hands. She said that the mother wanted to get evidence and she advised the mother that she should look into the law relating to making such videos.

11. Dr P agreed during her oral evidence that children of the child’s age are highly suggestable and that repeated questioning can focus attention on the issue about which the child is questioned. 

12. Dr P confirmed that children do engage in self-exploration as a normal part of development but that children who have been sexually abused also do so. She said - “It is well known that children who have been traumatised re-enact the event repeatedly”.

13. I was not taken to any evidence that would support a finding that the child has been traumatised. Nothing in the fourteen videos would lead me to draw that conclusion. The mother told Dr T (see below) that the child had not been traumatised by the father. Indeed, it is the mother’s case that the father made the experience of sexual abuse ‘enjoyable’ for the child.

Evidence from Dr R

1. Dr R is a clinical psychologist who provided a report dated 16 October 2016. No résumé is annexed to her report nor is any letter of instruction.

2. The child was referred to her by a Dr V. It is unclear to me when the child saw this doctor or for what purpose.

3. Dr R saw the child, the mother and maternal grandmother on 26 March 2016 for initial assessment. The assessment took ninety minutes.

4. Dr R assessed the mother’s mental state and had the mother undertake psychometric testing for depression and anxiety. She opined that the mother did not present with any symptoms of anxiety or depression.

5. She says that the mother reported initial signs of potential harm to the child when she was about twelve months of age when the child was touching her vagina while saying ‘daddy’.

6. Dr R describes the child as a happy, pleasant, playful, respectful and communicative child.

7. Dr R saw the child and her mother and maternal grandmother on a further thirteen sessions, each an hour long, on the following dates – 29 March 2016; 13 April 2016; 20 April 2016; 3 May 2016; 5 May 2016; 14 July 2016; 18 August 2016; 25 August 2016 and 31 August 2016. She provided what she called ‘play’ therapy to the child.

8. Discussions about the mother’s concerns occurred during the sessions while the child was playing with her maternal grandmother. Dr R did not consider the child would have heard the conversations. There can of course be no guarantee of that.

9. She says that she observed that the child appeared sad or distressed on four occasions when she reported an urge to go to the toilet and feeling discomfort. She reported itchiness and put her hand on her lower abdomen or between her legs. On other occasions she was able to say she needed to go to the toilet by saying “wees are coming”.

10. She says that on three very brief occasions, while playing with a teddy bear, the child pointed between the bear’s legs and said “daddy finger here”. On one occasion she said “yak … hurts”[13] and on one occasion she said “like it” and slapped herself on her bottom, jumped like a horse, laughed and turned back towards her toys. It seems these observations were interpreted as sexual in nature by Dr R.

    [13] It is not clear what the ellipsis was meant to convey i.e. whether words were spoken that were deemed to be irrelevant or whether words were spoken but indistinct.

11. The play therapy is said to have involved ‘safety behaviours’ and although such behaviours are not identified she states that the child “presented with a tendency to spontaneously remind toys and adults of the boundaries in her and their (toy’s) approach to their body. She appeared very aware of her own needs and boundaries”.

12. Dr R opines that it is common for children of the child’s age to touch their own genitals and enjoy showing and exploring and looking at their private body parts. She opines that it is unusual for children of this age to “discuss or persist indicating the particular sexual act or persistently show an adult-like sexual behaviour or liking towards, or knowledge of it (such as finger penetrating genitals on toys and self)”. In her view the child’s reported behaviours involve “warning signs”.

13. In a table produced in her report she includes a statement attributed to the child that when asked “what hurts?” the child answered “daddy hurts”. I note that this is the only evidence of the child allegedly making this statement. It is not for instance in the body of her report.

14. Dr R has never met the father nor read any of his affidavit material yet she purports to identify warning signs that he “minimises hurtful or harmful behaviours”; “lacks empathy and/or responsibility. Justifies behaviour, defends poor choices or harmful acts”; “invests in developing sense of vulnerability in a child and look for emotional neediness, isolation, and trigger low self-confidence” and rather extraordinarily “grooming the child for sexualised interaction; beginning from non-sexual touch, through playful ambiguous touching to exploit child’s curiosity and facilitate likeness of the sexualised touch”.

15. Although denying in cross-examination that her therapy proceeded on the premise that the child had been sexually abused by the father I reject that contention given that she states in her report that the child was not directly questioned “about her father’s behaviour” and that was so as to prevent the child affirming and “re-building traumatic memories”. She asserts that the child “initially used to report/express the memories of ‘daddy put finger here’ in a traumatic emotional manner”. No witness describes the child making such statements in a ‘traumatic emotional manner’ nor do the fourteen video recordings support that opinion.

16. Dr R purports to recommend that the father’s time with the child continue to be supervised into the future and that the child continue with play therapy “in order to further reframe her sexualised behaviours and distressing or/and sexually ambiguous or harmful memories”. She also refers to the need to avoid “triggering the relapse or enhancement of potential traumatic memories”.

17. During her oral evidence Dr R acknowledged that she had seen some of the video recordings taken of the child by the mother and said she advised the mother in April 2016 against continuing that practice. She also advised her against questioning the child. Her concern with recording the child was in giving the child a sense of “being important” and emphasising attention and importance to the event being recorded. She agreed that repeated questioning could “build the memory” and that children of the child’s age “definitely … don’t have strategies” to minimise the creation of false memories.

18. I note that despite this advice the mother video recorded the child on two further occasions.

Evidence from other witnesses relied upon by the mother

1. Mr W observed the child on one occasion on 10 January 2016 pull her pants down and say “daddy’s finger goes here” pointing between her legs and touching herself.

2. Ms X observed the child on 23 December 2015 without her underpants on sitting on the floor and inserting her finger into her vagina saying “daddy does this”.

3. Ms O says that on 28 October 2015 she was changing the child and that she touched the opening of her vagina and said “daddy” and “daddy here”. She says that she was extremely shocked and distressed. She says that she took the child across to the park and when a little boy of about three years was playing on the same merry-go-round the child smiled at him and started to touch her genitalia. She says she was extremely distressed and shocked. She reported her observations to the mother as soon as she returned home that day.

4. Each of these witnesses had been informed by the mother that the father had or she suspected the father had sexually abused the child.

Other evidence relied upon by the mother

1. The mother says that on almost every occasion that the child is to see her father she does not want to go and sometimes cries and screams. On the occasions when she is happy to go the mother attributes her demeanour to being happy to see the supervisor, Ms Q.

2. Although unrelated to the actual sexual abuse allegations, I note other behaviour of the mother which indicates a preparedness to wrongly accuse the father of harmful behaviour towards the child. Throughout 2016 there was an ongoing issue about the child being fed ‘white egg rolls’. The mother contended that the child could not eat them because it exacerbates her eczema. She told the child that she cannot eat them and that she cannot eat sugary foods. When the child returned from spending time with the father on numerous occasions in 2016 and the mother found out what the child had eaten she told the child that she cannot eat those things because they make her rash bad. This is a rather extraordinary state of affairs given that the father wrote to the mother via their respective solicitors on 4 February 2016 requesting information as to whether the child remained on any special diet or had any food allergies. The letter in response dated 8 February 2016 states inter alia

   …

   … Our client informed [Ms Y] [the supervisor] that the child was back to her normal diet, could eat all fruits and vegetables again and almost all other foods. Our client also informed [Ms Y] that the child generally has a very healthy diet and does not normally eat junk food or sugary drinks. …

   …

   … Our client assumes that [Ms Y] told your client that there were no dietary restrictions as our client requested her to do so. In any event your client fed the child an egg roll on the visit so your client must have been aware that there were no dietary restrictions.

   …

   (emphasis added)

Evidence from Dr T

1. The mother was psychiatrically assessed by Dr T at the instigation of the Independent Children’s Lawyer in August 2016.

2. She opined that the mother presented with normal mood and no evidence of anxiety, beyond that consistent with the expected stress of the court process. The assessment did not reveal symptoms consistent with current mental illness or personality disorder. In her view, given the mother’s past history of mental illness and alcohol abuse, she has a vulnerability for relapse but there was no indication that those issues were impacting on her parenting ability at the time of assessment.

3. In relation to the sexual abuse allegations she opined that if they were not true there is a “high risk of alienation of the child from her father”.  In her view, if the allegations are untrue it suggests that the mother places her needs above those of the child and exposes the child to “potential harm, including from separation from father, medical assessment and inappropriate counselling interventions”.

4. She opined that if the allegations are untrue the child may nevertheless come to see herself as damaged in some way. Her sense of self will be detrimentally impacted as will her future capacity to form relationships. In her view a false belief would detrimentally impact the child’s identity.

5. She expressed concern that the child had two counsellors and while noting that the mother seemed motivated to seek assessment and help for the child she expressed concern if such action were instead motivated to seek corroborative evidence of false allegations.

6. While noting that therapy for the child might be appropriate it can carry risk, for example, “in reinforcing the child having experienced adverse events and having been traumatised, damaged or otherwise affected (whether the events have actually occurred or not)”.

Evidence from Dr K

1. Dr K is an associate professor and child protection advisor to the child protection unit at G Town Hospital. He is a paediatrician with significant experience in the area of child sexual abuse.

2. Dr K had a conversation on the telephone with the mother on 8 April 2015 as a result of a referral dated 2 April 2015 from Dr J. The only concerns raised by the mother at that time were that the child had pointed to her genitalia on a number of occasions while her nappy was being changed and said “dada dada or daddy daddy” and there was talk about redness in the genital area. He said that there was no suggestion of penetration at the time he spoke to the mother. He understood the maternal grandmother had raised her anxieties about the child’s behaviour in conversation with Dr J which in turn led to the referral.

3. In relation to sexualised behaviours Dr K opined:

   … there’s a lot of sexualised behaviours that young children do that their parents seem shocked by but really are fairly common in children and cannot tell us much one way or the other. It’s really – and even if the children are showing sexualised behaviour and they’re young, it’s very hard to come down definitely on one side or the other. And then we virtually have to say, well, you know, the child is showing slightly unusual behaviours. We can’t really say why.

4. Dr K explained that because the opening to a child’s vagina of the child’s age is extremely small, it would be extremely painful for the child if an adult male finger were inserted. There would likely be bleeding and probably a permanent tear in the hymen. The child would feel a great deal of discomfort and experience pain passing urine. Dr K explained that because the hymen of a child of this age is extremely sensitive the child would likely react immediately if an attempt were made to penetrate, by clamping her legs shut and would “go backwards up the bed at a hundred miles an hour”. He said that even the gentlest of touches gets a reaction as the hymen is “very, very tender and it would be very painful”. He likened the sensitivity to that of touching the eyeball with a cotton bud.

5. He said that he would have impressed upon the mother the importance of immediate examination if there was a suggestion of penetration.

6. Dr K explained the difficulty in attributing literal meaning to something a young child says. For example he said:

   … we often get histories of digital penetration… One of the problems you have in children is that anything that causes them discomfort as far as they’re concerned is something which stuck right inside them. And so you get children who give quite a clear history that something was put right inside them. And yet when we do an examination we don’t find any injury. And then in the legal situation like as now we have a long discussion on why that might be so, and my answer is that the child just does not know what right inside feels like. Anything that causes discomfort around the area – they would say “Yes, somebody stuck something right inside me”.

1. Dr K opined that even without any penetration if there was rubbing backwards and forwards causing the labia to open it would cause quite considerable pain for the child.

2. I note that apart from the child indicating a level of discomfort in November 2014 when presenting with some redness in the vulval region and the one reported statement to Dr R there is no evidence of the child having suffered any pain, discomfort or trauma.

Evidence from Ms I, social worker and family report writer

1. Ms I obtained a social work degree in 2006 and a Master’s degree in social work in 2008. She has worked in domestic violence and child safety environments for over twenty years. She is currently a family consultant in private practice. Ms I has prepared two reports, one dated 8 March 2016 and the other dated 8 February 2017.

2. When the father and the child were observed together in February 2016 the child was initially reluctant. Ms I’s description of the father engaging with the child to the point where she relaxed and was giggling in play with him is, in my view, an impressive display of his parenting capabilities.

3. On 13 January 2017 Ms I observed the father with the child and noted the child’s obvious excitement when seeing her father and describes her hugging and kissing him. The observation was punctuated with squeals of delight by the child as she played with her father. She noted that there was no indication of the child being anxious, fearful or uncertain towards her father. On departure she hugged and kissed the father again and asked when she would see him again.

4. One incident noted by Ms I involved the child telling her doll “I’ve told you fifty times to shut your mouth” and placing her hand over the doll’s mouth. the child appeared mildly agitated and distressed for a few minutes but the father responded appropriately assisting the child to put the doll with her bag, redirecting her play and talking to her reassuringly.

5. The mother informed Ms I that she has no concerns about the child’s behaviour now although she alleges that the child resists getting ready to spend time with the father. She says that she does not say “the daddy thing” much anymore, only about “once a month”.

6. The mother admitted being concerned about the child spending time with the father away from the contact centre. She thought it was going to be at the beach and her concern was that “something could happen” if the child was in the water with the father. When a park was suggested the mother said the supervisor would not be able to see behind the park equipment and if the child needed help up a slide the supervisor would not be able to see where the father placed his hands. The mother said the impression she got from Ms Q (the supervisor) was that she was not comfortable about supervising the father’s time with the child at the park.

7. The mother reported that Ms Q had told her that the father does not show any emotion to the child and that he makes her (Ms Q) feel uncomfortable. Further she said that Ms Q told her that the child is happy to see her (Ms Q) and goes to her for comfort.

8. Ms Q was interviewed for the purposes of the family report and was not required for cross-examination. She denied ever saying that the father does not show emotion to the child or that he made her feel uncomfortable. She said she has never had concerns about the father and was never uncomfortable with the father taking the child to the park. I accept her evidence.

9. The mother said that she and her family “know it happened” and even if the Court finds the father is not a risk “we believe it as a family”. The mother reiterated that position during her oral evidence.

10. Ms L, the mother’s sister, told Ms I that she believes the father has sexually abused the child based on her behaviour and stress on seeing him. She told Ms I that she had not observed the child to put her finger in her vagina. She had been present when the mother video recorded a naked the child while she touches herself and says “daddy touches me, daddy touches me”. 

11. Ms AA, the maternal grandmother, told Ms I that what started “all this stuff” was the father sending the mother a letter before the child was born saying he would get a recovery order and take the baby. She said this was very stressful for the mother. Ms AA initially supervised visits and said they went well. She suggested that the mother had sent photos of the child to the father and Christmas cards and did not get any thanks from the father. She complained that the father cut off child support. The father had told them he came to Australia to get away from his family and wondered why, if he was not a family man, he wanted a little girl so much. She complained that the father was pushing for overnights.

12. Ms I states in her most recent report:

    113. Research suggests that below the age of around eighteen (18) to twenty (20) months children are not likely to be able to verbally report their experiences at all, that they are unlikely to be able to construct a verbal report of early experiences as their language skills develop. It is important to note the developmental patterns are similar for either traumatic or non-traumatic experiences. Children need to possess narrative language abilities at the time of an experience in order to provide a delayed verbal account of the event. During the time of the alleged incident, due to the child’s young age, it is highly likely the child had limited memory capacity and limited language capacity to recall and verbalise the alleged abuse event/s.[14]

    114. At the child’s development stage normal sexual development at the time of the disclosures include: curiosity about her body, including genitals, touching her genitals, including masturbation, in public and private and exhibiting no inhibitions around nudity. … If, as the mother reports, the child describes and displays digital penetration, her disclosures would be unlikely to occur without sexual exposure of some sort or direct coaching by someone.

    …

    116. … The latter point [mother engaging professionals who have seemingly validated the mother’s concerns] in particular coupled with the mother’s past evidence gathering behaviours, leads to questions about her motivation, and whether the mother is being child focused and protective or motivated by her own factors.

    …

    125. the child is at an age where she would be highly suggestible. … where a child is repeatedly questioned by trusted caregiver’s (sic) with confirmed beliefs the abuse has occurred, can be quite malleable … to bear a resemblance to the beliefs of the accusing parent. Pre-school children lack most of the techniques to minimise the creation of false memories, have the slowest processing speed and are greater risk for forgetting, failing to retrieve and having their original recoding of events altered by misleading suggestions. It is a possibility the child’s disclosures have come about due to suggestibility, along with the mother’s and maternal family’s topical discussions around their belief the father has sexually abused the child.

    …

    129. … if the Court found it is unlikely the father has ever behaved in an inappropriate manner towards the child there may be a case for the child to reside primarily with the father given the mother’s preoccupation and campaign against the father as this is something she may not likely be to (sic) willingly abandon. …

    …

    132. … Research suggests there are no behavioural signs that are clearly symptomatic of child abuse and particularly in the context of hostile and highly conflictual parental relationships, there may be numerous reasons a child may exhibit particular behaviours.

    [14] To the extent that Dr R took issue with this I prefer Ms I’s evidence given her extensive experience in child safety matters. Ms I was not challenged on her opinion and reference to relevant research.

13. Ms I was sceptical of the mother’s late change of position in suggesting the father should have supervised time. She opined that false memories of being sexually abused by her father could create significant problems for the child including increased aggression during childhood, abuse of alcohol in teenage years and a range of possible behavioural and mental problems.

14. Ms I made a number of recommendations dependent upon the findings ultimately made by the Court.

15. She opined that removing the child from her mother would be likely to have a significant impact on her but any long term impact could be mitigated with therapeutic intervention and ensuring she is in a safe and stable environment.

Evidence from Mr BB

1. Mr BB is a clinical and forensic psychologist and was retained by the Independent Children’s Lawyer to prepare a sexual risk assessment of the father. Noting the limitations on such assessment, Mr BB assessed the father to be a ‘low risk’.

2. In support of that assessment he says that he “could detect none of the critical psycho-sexual areas of assessment interest, including particular paraphillias, limited capacity for empathy or poor impulse control behaviours” nor any “current tendency toward unusual secrecy and/or obsessional independence, significantly poor social support levels, or networking with other persons having child (sexual) interests of concern”. He said that “critically” his assessment “did not detect cognitive distortions on his part; particularly in respect of a child’s capacity for sexual consent and/or interest in sexual activities with adults; or in respect of particular attitudes concerning inappropriate sexual behaviours and boundaries involving children”.

The rape allegation 

1. The mother does not use the word ‘rape’ seemingly thinking that accusing the father of non-consensual sex is somehow less serious. It was conceded by her counsel that the mother’s allegation is one of rape. The mother does not seek a finding that she was raped. It was submitted on her behalf that the relevance of the allegation was to inform the Court of the nature of the relationship and that it has been difficult from the start.

2. The mother did not raise an allegation of rape in the earlier proceedings before the Federal Circuit Court in 2015. She says that she did not tell the Family Report writer, Ms CC because she was “ashamed”, yet she told Ms CC that when she met the father in 2012 she was working in hospitality and that as a twelve year old she had become pregnant and had a termination at aged thirteen. She also said of the father that he was “nice enough”.

3. She stated that she had told her mother of the rape after she found out she was pregnant. Her mother appeared surprised when asked about this and denied that the word ‘rape’ had been used. She said her daughter told her that she had not wanted to have sex with the father. The maternal grandmother then added almost as an afterthought - “it was non-consensual”. I note that the maternal grandmother told Ms I that she had supervised the child spending time with the father early on and that she had tried to get along with him. I consider it unlikely she would have done so if she thought he had raped the mother.

4. In her interview with Dr T the mother said she “did not want to have intercourse with him, and told him this but he persisted and it wasn’t a nice experience”. She said she did not report it because she did not think she would be believed. In her summary, Dr T describes what the mother told her as the mother “trying to say no”.

5. When the mother found out that she was pregnant in October 2012 she contacted the father and told him he would be welcome to see the baby. She contends that the father wanted to marry her but she said she did not want to be in a relationship with him.

6. The mother conceded that after finding out that she was pregnant in or about October 2012 she permitted the father to stay at her home in the spare bedroom on three occasions. She also permitted him to attend the first ultra sound appointment. Her mother also attended. The mother deposes to her mother and herself being excited at this first ultra sound appointment and exhibit 2 indicates that the mother told Dr J, her GP, that she was very excited about her pregnancy. The mother also accepted over $11,000 from the father during the period up mid-January 2013 because she said she could not work.

7. During her interview with Ms I in February 2016 the mother described her relationship with the father as ‘a one night stand’.

Conclusion about sexual abuse and rape

1. Even after hearing the evidence of Dr K, whose evidence I accept, the mother maintained her allegation that the father had inserted his fingers into the child’s vagina and sought a finding to that effect.

2. As Dr K’s evidence makes clear, if there were penetration it would be a very painful experience likely to involve bleeding and subsequent pain when urinating. Even without penetration, rubbing on the genital area would likely cause some pain. There is no evidence that the child complained of discomfort or pain to her mother, maternal grandmother or aunt at any time. Indeed it is the mother’s case that ‘it’ was a pleasurable experience for the child. November 2014 was the one and only occasion when the mother says the child had a red and swollen vulva and the issue quickly resolved with the application of a topical cream. The child also suffered from nappy rash and eczema at the time.

3. Dr K said that sexualised play in young children was fairly common as was redness in the genital area. Dr P, Dr R and Ms I agreed that fondling of and focus on genitalia in children of the child’s age was not unusual. I accept their evidence.

4. I find the mother’s position troubling because it indicates a completely closed mind in circumstances where, if she were genuine, I would expect her to entertain at least a level of doubt. However, her trial position is consistent with what she told Ms I that irrespective of any findings made by the Court she and her family “know that it happened”.

5. Of course the child’s repeated statements implicating the father in inserting his finger into her vagina are concerning. She has made statements to that effect to numerous persons and there are recordings of her making such statements in evidence.

6. There are fourteen video recordings of the child in evidence. They were made by the mother over the period 22 October 2015 to 8 October 2016. On most occasions the child is either completely naked or naked from the waist down. The mother says that she was naked or partially naked because she had either just come from the toilet or bath or was preparing to have a bath. I do not accept her evidence that on all occasions that was so and find that on most occasions that was not the case given the activity the child is engaging in, the place where the video is occurring, the time of the recording or the time taken to make the recording.

7. The mother videoed the child by using an iPhone held at about chest height. There is no doubt the iPhone would have been clearly visible to the child and that she was aware she was being recorded. On occasions there was another person or persons present.

8. I am troubled about the video recordings for a number of reasons. Firstly, that the mother took them at all. The recordings which include close ups of the child’s genitalia are appalling and I find that the mother made the recordings for the purpose of gathering evidence against the father. Secondly, on the first video recording it is the mother who introduces the concept of someone putting a finger in the child’s vagina and in the second recording the mother suggests the father as the ‘perpetrator’. Thirdly, I do not know what discussion took place prior to the recording commencing or after it ceased but it is implausible that the mother just happened to be recording when the statements were made. Fourthly, the mother continued to make recordings even after she was advised by Dr R to desist. Fifthly, the mother leaves the child either naked or semi naked even after becoming aware that she seems to have a propensity to touch her genitals.

9. I accept the evidence from Ms I, Dr P and Dr R to the effect that children of the child’s age are highly suggestible and repeated questioning of a child can create a focus on the issues about which the child is questioned and even create false memories which a child of the child’s age lacks any ability to resist.

10. During many of the recordings the child appears to ‘perform’ for the camera. In my view she does and says what has become expected of her both on camera and to other persons. By way of example, on one occasion she is looking intently at what is likely to be the television. She has her dummy in her mouth and when she becomes aware she is being filmed she spits out the dummy and drops her knees to display her genitals. She then pulls her labia apart and says “daddy go in there”.

11. I find it more likely than not that the recordings were staged events intended to capture a statement from the child which the mother could use as evidence. I further find that the child was exposed to repeated discussion and/or questioning about the father putting his finger into her vagina. On 8 October 2016 the child said - “He did it when I was a baby”. I regard it as implausible that the child would have a memory of something that happened to her when she was a baby and be able to verbalise it as her language developed. I accept the evidence from Ms I on this issue. It is distressing to see such a young child having been programmed or coached in the manner I find she has been.

12. I also find the mother’s involvement of various therapists is more likely to have been motivated by an attempt to obtain corroboration for her allegations. I am fortified in this view by three facts in particular; the cessation of Ms S’s involvement when she indicated her unwillingness to be involved in litigation; the engagement of Dr P whose practice was over two hours away from the mother’s residence and the continuation of her therapy until a sympathetic Dr R was located.

13. The mother and her family hide behind the fiction that the allegations against the father are made by the child when the allegations are in fact made by the adults. the child has been an unfortunate pawn in an attempt to obliterate the father from the child’s life and their lives. I do not accept the genuineness of the mother’s purported change of heart in relation to ongoing supervised time. The father alleges that on one occasion when the mother was drunk she said to him that he would never see the child; that she knew how the law works; and she would stop him having the child. He was not challenged in relation to this evidence and I accept it and find that she has acted on those threats.

14. In coming to the conclusion that the mother has orchestrated the sexual abuse allegations I have also taken into account what I find to be the mother’s false allegation of rape against the father.

15. I am not persuaded that the mother was raped by the father as alleged by her. Her actions subsequent to her finding out she was pregnant are inconsistent with that being the case. Those actions include the following:

    a)She informed the father of her pregnancy;

    b)She permitted him to stay at her home on three occasions;

    c)She told her GP that she was very excited about the pregnancy;

    d)She permitted the father to attend an ultra sound appointment with her in relation to the pregnancy;

    e)She accepted significant financial support from him;

    f)She referred to the incident as a ‘one night stand’;

    g)She complained about the father not returning her messages or taking her calls; and

    h)She told the report writer in earlier proceedings that the father was “nice enough”.  

16. I also reject the mother’s explanation that she did not tell the previous report writer (in earlier proceedings) about the rape because she was embarrassed. She told the report writer other things that I expect would have caused her embarrassment e.g. that she worked in hospitality and had had a termination at thirteen.

1. Further, the maternal grandmother seemed surprised by the suggestion that the mother had told her of the rape and I do not accept that a complaint to that effect was made to her by the mother.

2. The fact that the mother made such serious allegations of sexual abuse of a child and of rape, which I have rejected, calls into question her credit generally and her attitude to the responsibilities of parenthood given that such allegations are made against the father of the child.

3. For the reasons stated I find that the father did not insert his fingers into the child’s vagina and I find that there is not an unacceptable risk of the child being sexually abused by the father. I find that the mother orchestrated the allegations of sexual abuse against the father.

the risk of the child being exposed to psychological harm if she remains with the mother

1. Despite the findings made above it does not automatically follow that the child’s best interests necessitate her removal from the mother. The removal of the child would only be considered by me if I find that there is no other realistic option that meets the child’s best interests. There is no element of punishment involved in a consideration of the child being removed from the mother.

2. After all, the child has spent all her life to date with the mother and spent very little time with the father. The evidence suggests that her relationship with the mother is loving and her primary source of comfort. She also has a close and loving relationship with the maternal family.

3. The harm that could be caused to the child growing up falsely believing that she has been sexually abused by her father is, however, potentially significant. Nothing in the mother’s case leaves me with any optimism that the mother and her family are likely to accept the findings made or to change their ways. I consider it likely that the child would either come to believe that she had been sexually abused by the father or become aware from the mother or her family of their stated beliefs about the father, even if she spent no time with him.

4. I accept Dr T’s and Ms I’s evidence about the potential risks to the child where she falsely believes she has been sexually abused by her father. Such risks include her developing aggressive tendencies, alcohol abuse, anxiety, damage to sense of self and identity, inability to form relationships and I accept that she will likely become alienated from her father as opined by Dr T.

5. While my primary focus is on the child, the mother’s well-being is a matter that directly impacts on the child and I accept that there is a risk that the mother will relapse into alcohol abuse and/or mental illness if the child is removed from her care but she has a demonstrated willingness to obtain medical assistance in the past.

6. As the High Court in CDJ v VAJ[15] held, decisions in parenting matters “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof” and such are my concerns about the mother’s conduct in making false allegations against the father and the impact that is likely to have on the child if she remains with the mother, that I regrettably come to the conclusion that the risk of psychological harm if the child remains with the mother is unacceptable.

   [15] (1998) 197 CLR 172 at [151]

mother’s capacity to facilitate the child spending time with the father

1. If the child remains with her mother I consider it only a matter of time before the child will cease spending even supervised time with the father. I do not accept that the mother’s change of heart on the first day of trial in seeking the continuation of supervised time is genuine. The capacity of the mother to make allegations against the father and the maintenance of her position even after the conclusion of all of the evidence causes me to form the view that if the child remains with her mother she will be denied her right to have a relationship with the father.

the impact on the child of being removed from her mother

1. As identified above the child’s primary carer has been her mother and it is likely that she will be significantly affected by removal from her mother and her mother’s family. Ms I nevertheless seemed reasonably optimistic that the child would adjust and I accept her evidence.

2. The father is untested as a parent and has little experience with young children. He is certainly committed to being a parent to the child having regularly and consistently travelled sixteen to twenty hours to spend just a few hours at a time with her. The cost of these visits for him is $1,800 per month.

3. His partner, Ms F, has only met the child on one occasion in 2015 so she is for all intents and purposes a stranger to the child. She has two children of her own aged fifteen and thirteen who attend boarding school but spend their holidays with her and the father. She observes that her children have a wonderful relationship with the father. Ms F works as a manager but her working hours are flexible.

4. In the limited opportunities the father has had to demonstrate his parenting capacity he has impressed as capable. The father completed a PPP parenting course in 2014. The evidence from Ms Q, the long term supervisor, and from Ms I supports my conclusion.

5. The father proposes to take time off work in order to assist the child with the adjustment to living with him. He said that he had spent the last two years building up his business for the purpose of having the child live with him and he has customers in place. He said that he can be flexible with his work commitments to accommodate what is happening in the child’s life. He anticipates that the child would continue to attend child care two days each week after she settles in with him. He also proposes to seek professional assistance if required. I accept his evidence and find that the father will do whatever it takes to assist the child in making the transition to live with him and Ms F. I also find that the father and Ms F will promote the child’s relationship with the mother and do whatever is required to ensure the child maintains a relationship with the mother.

other matters

1. Given my findings I come to the conclusion that the parents are unlikely to be able to jointly make parenting decisions but I accept that the father is likely to attempt to include the mother in decisions. As the child will be living with the father he should have sole parental responsibility for decisions affecting the child.

2. The child has a right to spend time with each parent and as long as that can occur safely I am satisfied that she should spend time with her mother. Unfortunately, I cannot be satisfied that the unacceptable risk to the child can be ameliorated by simply removing the child from her mother’s full time care. Even during shorter periods of time I consider the risk to the child from her mother to be unacceptable but I find that the risk can be ameliorated by supervision. There is a contact centre at C Town and although this will involve the mother in considerable travel I consider that as the mother has qualifications for employment she will be able to afford the travel. Another reason for my imposition of supervision is the increased vulnerability in the mother of a relapse to alcohol abuse and mental illness.

3. There may be a time in several years when the mother is able to persuade a court that there has been a significant change in her circumstances such as to warrant a reconsideration of supervision but for the foreseeable future this is the only way in which the child will be able to maintain a safe relationship with the mother.

conclusion

1. For the reasons articulated I propose to order that the child live with the father and that he have sole parental responsibility. I also propose to order that the mother spend supervised time with the child at all such times as may be agreed and failing agreement once every three weeks at the Contact Centre in C Town.

2. I requested that the mother bring the child to Child Dispute Services at the time of judgment so that the transition to the father could be assisted by Ms I.

3. Finally, I note that at the conclusion of the trial the Independent Children’s Lawyer recommended a change in the child’s living arrangements and tendered a Minute of Order which I have largely adopted.  

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 May 2017.

Associate:

Date:  10 May 2017