Re Maree

[2007] NSWLC 35

Local Court of New South Wales

CITATION:	Re Maree [2007] NSWLC 35
JURISDICTION:	Children's Court
PARTIES:	Director General of Department of Community Services; Re Maree
FILE NUMBER:
PLACE OF HEARING:	Lismore
DATE OF DECISION:	08/07/2007
MAGISTRATE:
CATCHWORDS:	Abuse allegations - unacceptable risk
LEGISLATION CITED:	Children and Young Person’s Care and Protection Act 1998
CASES CITED:	Briginshaw v. Briginshaw [1938] 60 CLR 336 M v M [1988] HCA 68 B v B [1988] HCA 66 W & W [2005] Fam CA 892 (21 September 2005)
REPRESENTATION:
ORDERS:

1. This is a Care Application brought by the Director-General of the Department of Community Services which commenced at Ballina on 20 September, 2006. A finding of need of care and protection was made on 31 January, 2007. Ms. Ferguson appeared for the Director-General.

2. Maree, who was born in 2001, is the daughter and only child [the father of address A] and his Japanese-born wife [the mother of address B]. [The mother and child reside together]. Every one of the Mother’s extended family resides in Japan and she first came to this country about seven years ago. The paternal grandparents live in or around Adelaide. The Father and the Mother were represented in these proceedings by Mr. Van Kempen and Ms. Crane respectively. Mr. Darnell appeared in the interests of the child.

3. On 21st. August, 2006, the Department of Community Services received a report from Dr. Christopher Ingall, consultant paediatrician, of Lismore confirming an earlier report to the effect that Maree had been diagnosed with gonorrhoea. Apart from the infection, there was nothing in the child’s medical examination to indicate that Maree had been sexually assaulted and neither has she at any time made any disclosure of any sexual misbehaviour towards her by any person.

4. Some short time prior to the diagnosis, the Father had been in Bali and he has explained to various people, including police, that he had dealings with a prostitute there and, as a result, returned home to Australia infected with gonorrhoea. It is assumed by all parties to this case, prudently it seems to me, that somehow, Maree’s infection was passed to her from her father.

5. When the Mother first noticed Maree’s symptoms which included vaginal discharge and, ultimately, pain, she treated the child, unsuccessfully, with some naturopathic remedies and later consulted a homeopathic practitioner. It was about three weeks before she decided to seek conventional medical attention for her daughter and, with the consent of the Father who had once again repaired to Bali, consulted Dr. Solomon, a general practitioner, who carried out some tests and ultimately diagnosed gonorrhoea. Subsequently, Maree saw Dr. Ingall and was admitted to hospital at Lismore. It has been suggested that perhaps the Mother’s tardiness in taking the child to see a doctor arose from a desire to protect the Father’s reputation but I do not accept that such was the case. In the first place, it is not clear that, at the time she first consulted Dr. Solomon, the Mother was aware of the Father’s medical condition and, in the second place, I think the Mother is not an enthusiast of western medicine and would generally prefer and have more confidence in alternative remedies.

6. The child was still in hospital when, on or about 25 August, 2006, an emergency care and protection order was made in the Children’s Court at Ballina on the application of the Director-General. The child was then removed into care and is now the subject of interim care orders placing her in the parental responsibility of the Minister pending further order. She has been returned to the care of her mother on quite strict terms particularly to ensure her isolation from the Father and, despite some fears which arose in mid July, 2007, has had no contact with her father since that time.

7. The Father was charged with a serious indictable offence regarding his alleged sexual misbehaviour towards the child but, in very recent times, the Director of Public Prosecutions has withdrawn all charges against him.

8. In these care proceedings, the Director-General seeks an order allocating parental responsibility for Maree to the Minister until she shall have attained the age of eighteen years. He proposes that the Minister have all aspects of parental responsibility but share parental responsibility for religious matters jointly with the Mother. It is clear that the Minister’s intention would be to maintain the child’s placement with the Mother provided, of course, that the Mother ensures Maree’s isolation from the Father. The Director-General seeks an order pursuant to section 90A prohibiting the Father residing with, contacting or attempting to contact Maree and a further order prohibiting the Father coming within 500 metres of Maree’s school. Each of the Mother and the Father would prefer that the applications be dismissed or else that an order be made under section 76 providing for the Director-General’s supervision of the child for a period which the Mother submits should, be only twelve months and the Father suggests two years. Each of the parents proposes that Maree continue to live with her mother and they reluctantly agree that she should have no contact with the Father.

9. In support of his application, the Director-General relies on the following documents:-

· The affidavits of his case worker Sharon Husar sworn on 24 August, 31 October and 21 November, 2006, together with the report of Dr. Dimitra Tzoumi of the Children’s Hospital at Randwick which is annexed to the latter affidavit;

· The affidavit of Dr. Tzoumi of 5 December, 2006;

· The affidavit of Dr. Christopher Ingall of 14 December, 2006 together with his annexed report;

· The affidavit of Dr. Anna McNoulty of 20 December, 2006 and to her annexed report of 4 September, 2006; and

· Two affidavits of case worker Diane Welsh sworn on 10 July and 11 July, 2007 together with the reports of Margaret Edge, social worker, and further material from Richmond Sexual Assault Service which are annexed to the former affidavit.

10. The Mother relied on her affidavits sworn 20 December 2006 and 20 June, 2007 and the Father relied on his own affidavit sworn 15 June, 2007, the sole purpose of which was to annex various references, together with the affidavit of Dr. Margaret Hammerschlag, a New York expert in sexually transmitted diseases. In July 2007, there was a flurry of activity when officers of the Department of Community Services suspected that the Mother was allowing the Father access to the child and a couple of affidavits regarding those suspicions were filed. Each of the Mother and the Father filed affidavits apparently successfully allaying those suspicions and, in the event, the Director-General did not press the matter in court. Accordingly, I did not read any of the affidavits filed in that regard. I did read, however, reports from Dr. L.S. Dayan and Dr F.A. Goodyear-Smith.

11. In addition, I read the Care Plan prepared on behalf of the Director-General which was filed on 27 June, 2007.

12.The Mother, Ms. Husar, Ms. Welsh and Ms. Edge appeared and were cross-examined before me. The Father, although he made no reference to the matter in his affidavit evidence and gave no evidence in court and, so, was unavailable for cross-examination, denies any sexual misbehaviour towards Maree and, as an explanation of her predicament, offered investigating authorities, including the JIRT, a choice of three possibilities – firstly, that the infection was transmitted to Maree by water while, in the Japanese fashion, she and the Father were sharing a bath together, secondly, that Maree became infected while using the same hand towel as the Father and, thirdly, that she may have become infected by touching the rope of her swing after the Father had touched it with unwashed hands after toilet.

13. It is agreed between the parties that, on the available medical evidence, the most common means of transmission of gonorrhoea is by direct sexual contact. The disagreement of the parties in this case, insofar as medical matters are concerned, is confined to whether transmission by other than direct sexual contact is unusual or extremely unusual. It is clear that a distillation of the medical evidence leads to those propositions and the court was not required, then, to further concern itself with the large volume of medical material which had been gathered, particularly by the Father, perhaps with an eye to the ultimately aborted criminal proceedings.

14. The Mother, at all times and even after receiving the confirmed diagnosis of Maree’s infection and reading the medical evidence, has maintained the belief that the Father is innocent of any sexual misbehaviour towards the child. It seems that it is not merely a matter of keeping an open mind but rather having a positive belief in his innocence. She told the court that she accepts that the most common cause of the infection is by means of direct sexual contact and, further, that, having read the medical evidence, she accepts that there is “a contrary possibility” and that, therefore, she can see that the orders already put in place were necessary “or at least make sense” but she continues to believe in her husband’s innocence.

15. When Margaret Edge from Richmond Sexual Assault Service appeared to give evidence and was cross-examined. She raised a number of extremely important matters. The first relates to whether contact between Maree and her father would be appropriate were he to have sexually abused her. This question has to be seen against the background of their extremely close and apparently affectionate father-daughter relationship. But Ms. Edge’s view is that, in cases where a parent has sexually abused a child, further contact with the perpetrator poses a risk not only of further sexual abuse which, I suppose, might be obviated by close supervision, but also of continuing emotional abuse. It is extremely confusing and bewildering for an abused child, as Ms. Edge explained, to be placed in a position where he/she is expected to relate to a perpetrator as though nothing untoward

had happened and there is a real likelihood that such a child, put in that position, would experience a significant level of such fear and anxiety. The ability of an abused child placed in that position to process and come to terms with what has already happened would be greatly impeded in that the child would perceive him/herself as disbelieved and as facing the abuser alone. For reasons of that nature, Ms. Edge’s recommendation was that there should be no contact between father and daughter, whether supervised or not, and that Maree should not be exposed to her father but should remain isolated from him.

16. Ms. Edge is concerned that, should Maree’s present inability to disclose the sexual abuse be protracted, it will prove to be very damaging to her from an emotional point of view. Ms. Edge believes that a requirement that the child have contact with and spend time with the Father, assuming that he is the perpetrator of sexual abuse towards her, will inhibit her ability to make a proper disclosure. In circumstances where the Father continues to be perceived as a major figure of influence in her life, Maree will find it very had to disclose the abuse which she has suffered and accordingly, will find it difficult to process and come to terms with what has happened to her. Perhaps when she is older, Maree will have developed better self-protective mechanisms but Ms. Edge’s view is that, unless she has been able to disclose, the problems of anxiety will persist to her significant disadvantage.

17. Secondly, Ms. Edge expressed concern that the Mother appears unable to face the probability that Maree’s infection resulted from the Father’s abuse, even at this late stage when all the medical evidence has been gathered. Ms. Edge told the court at page 2 of her report that “the concept of identifying feelings and abstracting them appeared foreign to [the Mother] and I would expect her not to be able to model or reinforce new learning (about her husband and his dealing with their daughter).” According to Ms. Edge, this mindset would undermine the Mother’s ability adequately to support Maree, to assist her with any disclosure she may seek to make and to empathize with her confusion. Furthermore, Ms. Edge reported that it seems unlikely that further counselling will assist the Mother to a more realistic or, at least, more receptive state of mind as to the possibility of the Father’s misbehaviour towards the child.

18. Thirdly, Ms. Edge expressed concern, on the basis of her observation of them, that, far from helping Maree make an adequate disclosure, the Mother, perhaps inadvertently, inhibits Maree in that regard. Ms. Edge was intrigued by Maree’s practice, during interviews, of “checking-in” with her mother whenever a question was directed to her. It seems likely that the child’s dependence on her mother extends even to the investigation of these matters and, according to Ms. Edge, Maree will strive to please her mother and to accept her guidance with regard to whatever happened to her, even to her ultimate detriment.

19. Of course, Ms. Edge has never met or interviewed the Father and, in all of the opinions raised by her, she assumes that he has sexually abused his daughter. Ms. Edge made no bones about operating on that assumption. Indeed, she told the court that neither she nor Richmond Sexual Abuse Service could have played any part in this matter had it not been for that assumption having been made. And yet, this court cannot make that assumption and what is left is the professional opinion of an apparently very experienced and perceptive sexual abuse counsellor which, should the Father be entirely innocent of any sexual misbehaviour towards the child, is quite academic. Ms. Edge’s evidence must be seen in that light.

20. It is clear from the decision of the High Court of Australia in Briginshaw v. Briginshaw [1938] 60 CLR 336 that, in considering an allegation (including an allegation of sexual abuse of a child) raised in civil proceedings, such as Family Law proceedings or Care proceedings, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors enumerated by Dixon CJ at page 362. There, his Honour said:-

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been
proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references.”

21. Clearly, even allowing for the Briginshaw principle, the application of the civil standard rather than the criminal standard of proof will render the task of the “prosecutor” less onerous than it might otherwise have been but, as the High Court observed in M. v M. F.C. 88/063 [1988] HCA 68 (8 December 1988), an allegation that a parent has sexually abused a child is “an allegation which is often easy to make but difficult to refute” and, although, as the High Court said “ there will be some cases where a court is able to come to a positive finding that the allegation is well-founded…” and also “…cases in which the court has no hesitation in rejecting the allegation as groundless,” nevertheless “ in the nature of things, there will be many cases in which the court cannot confidently make a finding that sexual abuse has taken place.”

22. In M. v M. F.C. (referred to above) and in B. v B. F.C. 88/064 [1988] HCA 66 (8 December 1988), the High Court pointed out that, in civil cases such as Family Law cases and, I think, Care cases, where, ultimately, the interests of the child are the paramount consideration, the difficulty faced by courts in determining the issues which must be determined is more apparent than real and lies in confusion as to what really is the issue to be determined in the case. Those two cases involved father/daughter contact where it had been submitted by the appellants that one of the essential issues was whether the Fathers had tampered with the girls sexually. The High Court of Australia observed that:-

“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Part VII of the (Family Law) Act in relation to a child, the court is enjoined to regard the welfare of the child as the paramount consideration… …The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of or access to a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody and access are not disputes inter partes in the ordinary sense of the expression. In proceedings of that kind, the court is not enforcing a parental right of custody or right of access. The court is concerned to make such an order for custody or access which in the opinion of the court best promotes and protects the interests of the child….

…Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

23. The question which the Children’s Court must resolve in the present case, then, is not whether the Father has committed any sexual impropriety but whether, on the balance of probabilities, the arrangements sought by the Director-General and the other parties are in the interests of Maree’s welfare and, if not, what, if any, other arrangements are in those interests. But in order to do so, the court must make an assessment, on the evidence, of the risks to Maree in various situations

proposed by the parties and must assess the risk and the magnitude of risk involved in the competing proposals for her welfare but particularly, given the circumstances of this particular case, the magnitude of risk, including sexual risk, which would be posed by the child’s exposure to her father and, on the other hand, the risk of harm which would be posed by her deprivation of any contract with him and, for that matter, the risk of harm which would be posed by the child’s removal from the care of her mother in order to further ensure her isolation from her father.

24. Speaking in M. v M. F.C. in the context of Family Law proceedings for contact, the High Court went on to broach the subject of “unacceptable risk.”

“Efforts to define with greater precision the magnitude of the risk which will justify a court denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as ‘risk of serious harm’… … ‘an element of risk’ … ‘an appreciable risk’… ‘a real possibility’… ‘a real risk’… ‘an unacceptable risk’ ( see A. v A.[1976] VR 289 at 300, Marriage of M.[1987] 11 Fam L.R. 765 at 770 and 771, B. v B. (Access) [1986] FLC 91-758 at 75,545, Leveque v Leveque [1983] 54 B CLR 164 at 167, In re G (a minor) [1987] 1 WLR 1461 at 1469.) This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying the a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

25. Having erected the test of “unacceptable risk,” the High Court in M. v M. F.C. referred to the inability of the trial judge to be satisfied, according to the civil onus, that the Father had not sexually abused the child. That possibility not having been excluded, the trial judge found that exposure of the child to the Father would pose an unacceptable risk to the child. The High Court approved the decision to refuse contact.

26. In B. v B. F.C. (cited above), the High Court concluded, for the same reasons, that “if the trial judge considers, upon the balance of probabilities, that the welfare of a child may be endangered or that there is a risk that a child may be physically, sexually or emotionally harmed if access were to occur, then the trial judge may, in our view suspend access… …For the reasons we expressed in M. v M., we think the majority in the Full Court were correct in concluding, on the findings of fact made by Burton J., that the appeal should be dismissed. On those findings there was an unacceptable risk of sexual abuse occurring if the Husband were to continue to have access to the child.”

27. In W & W [Abuse allegations: “unacceptable risk”] [2005] Fam CA 892 (21 September 2005) a Father, whose contact to his infant daughter had been curtailed at trial on the basis of a finding that his unsupervised contact to the child would pose unacceptable risk of sexual abuse, argued on appeal that the trial judge, Dessau J., in restricting his contact to supervised contact, had, by implication, made a finding of sexual impropriety which was denied by him. He argued that, because the evidence, including the expert evidence, did not support a finding of sexual impropriety, it was not capable of supporting a finding of unacceptable risk and that the trial judge had necessarily failed to properly assess the magnitude of risk posed by unsupervised contact and whether such risks outweighed the benefit which would flow to the child from unsupervised contact.

28. The flavour of the Father’s unsuccessful argument seems to have been that, absent a clear finding regarding the fact of sexual abuse having taken place, it is well nigh impossible to assess the degree of unacceptable risk which unsupervised contact might involve and to weigh it against the risk of disadvantage involved in the deprivation of contact and other issues. He complained that “certainties of proof were not attained” but, in W & W, the Full Court of the Family Court of Australia dismissed that argument. Any suggestion that, in the absence of very clear evidence of actual sexual assault, it is not possible or open to a court to undertake the exercise of assessing whether, over all, there is an unacceptable risk cannot be sustained. What the Full Court were confident had been done by the trial judge was to “give appropriate consideration to the evidence relevant to the question

of unacceptable risk.” In the absence of a finding of sexual abuse, the matters properly to be considered, according to Fogarty J. in N. & S. and the Separate Representative Appeal No. EA 56 of 1995, might include questions such as the following:- What is the nature of the events alleged to have taken place? Who made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have taken place? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects in the child?

29. From the above, it might be seen that the guilt or innocence of the alleged perpetrator is by no means an irrelevant factor – merely one which might be incapable of resolution. The inability to resolve the matter should not be allowed distract the court from the main issue which the child’s welfare and degree and acceptability of risk involved in the competing proposals of the parties.

30. Other factors which might have to be considered in the judicial assessment of “unacceptable risk” may include the personality and character of the person against whom the allegations are made, the nature of the relationship between that person and the child, and the impact of proposed orders and arrangements on the child, particularly in his relationships with members of his family. The Full Court in W. & W. cited with approval the following statement of N.& S.:-

“This is not a catalogue of the correct questions but a reminder that it is questions such as these which are required to be considered in deciding whether an “unacceptable risk” may be shown. The weight to be attached to the various answers to the relevant questions will invariably vary from case to case. But it is essential that questions like these be asked.”

31. In that same case, Fogarty J had observed that “In the end I doubt that a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important is the effect which can rationally be predicted on the child. In considering the whole matter… …it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”

32. It is provided in section 9(a) of the Children and Young Persons (Care and Protection) Act, 1998 that “… in all actions and decisions made under this Act (whether by legal or administrative processes) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.” That being so, it seems to me that, so far as concerns the court’s obligation to comply with the “best interests” principle, there is no significant distinction between proceedings under the Family Law Act and those under the Children and Young Persons (Care and Protection) Act, 1998. Accordingly, I think that, in the present case, the focus must be on issues of “unacceptable risk” rather than on questions of the guilt or innocence of the Father.

33. In assessing whether the various proposals of the parties and, in particular, those which relate to the Father pose an “unacceptable risk” to Maree, I take into account the medical evidence that the most common means of gonorrhoea infection is by direct sexual contact so that it is more likely than not that Maree’s infection was caused by that means and, further, that the only person known to have had access to the child and, at the same time, to have been suffering with gonorrhoea was the Father. These matters raise a strong suggestion that the Father may have misbehaved towards his daughter. I take as a given the corrosive effects of child sexual abuse and the absolute importance of protecting Maree from further abuse. In that connection, I note and respectfully adopt the comments of Fogarty J. in N. & S. [1996] FLC 92-655 at 82709 when his Honour said:-

“It is difficult to overstate the importance of protecting children from sexual abused and from the consequences which often follow sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom and the most serious denial of their right to personal growth. Its effects, both in the short and the long term, can be devastating.”

34. I take into account that Maree displayed no physical symptoms of having been sexually abused apart from her infection itself and that she has made no disclosure involving the Father or anybody else. I note that the Father denies any impropriety although it is important to acknowledge his failure to make himself available for cross-examination. The Father is a person of apparent good character and the Mother, who knows him better than anybody else, believes in his innocence, a circumstance which speaks in his favour even if it throws some doubt on the Mother’s reliability as a protective agent for her daughter.

35. I take into account the potential danger to Maree’s emotional wellbeing involved in being required to confront a parent who may have sexually abused her and the diminished capacity of the Mother to give the child the support she may need in coming to terms with what has happened to her and with what may have happened to her. The Mother does not believe in the Father’s guilt and it is clear from her evidence about their continuing relationship – they continue to meet three or four times per week and the Father describes her as “supportive” – that the Mother continues to have affectionate feelings for him. If she harbours any doubts at all regarding the Father’s suitability as a parent, she appears to be giving him the benefit of them. Ms. Edge believes that the provision for Maree of “a safe confidant” in the shape of a counsellor, independent of the Mother, would assist the child in relation to her anxiety with regard to the Father and would assist her in coming to terms with what may have happened to her.

36. The view I take of the Mother’s protective capacity regarding the Father is that I think she would comply with the orders of the court, obey such restrictions as might be put in place and observe such undertakings as she might be required to give at least in the short term. She appears to be a truthful and decent person but her heart would not be in it. Perhaps the best guarantee of the Mother’s long term compliance would be the continuing involvement of the Department of Community Services but that would have to be quite intensive as I was given to understand is the Minister’s intention. Of course, there is also Maree’s increasing ability, which will develop with age, to speak up for herself and to raise the alarm should she find herself in danger. How effective the Department of Community Services has been in guaranteeing Maree’s segregation from the Father is illustrated by the events of July, 2007 when the child was hurriedly removed from the Mother’s care in the mistaken impression that the Father had gained access to the child. That sort of vigilance would have to continue and I am advised from the bar table that it would.

37. Another important factor to be considered is the unhappiness and dislocation which will befall Maree if, as a protective measure against the Father, she is separated from her mother. She has always lived with the Mother and has only rarely been separated from her and, according to Ms. Edge, there is an extremely close bond between them. There is a sense in which Maree together with her mother appear isolated and the price which the child would pay being placed in out-of-home care and thus losing her whole family would be immense.

38. Taking all these circumstances into account, I conclude that contact or indeed any dealings with the Father poses an unacceptable risk to Maree in terms of her sexual safety and of her emotional wellbeing. Nor can I foresee a time during Maree’s childhood when that will not be the case. If Maree is to live with her mother, then the segregation of the child from the Father requires a degree of long term dedication on the Mother’s part which, given her belief in his innocence, her continuing relationship with the Father and his easy availability, is problematic. Certainly, it would not be prudent to reduce the involvement of child protection authorities by placing Maree in the sole parental responsibility of the Mother and, since no other family members are available, there is no choice, consistent with the child’s safety, but to place her in the parental responsibility of the Minister until she shall have attained the age of eighteen years. Where the Minister places Maree will be a matter for

him because, if the court allocates parental responsibility to the Minister, it may not tell him how to exercise it. (see Re Josie [2004] CLN 5). Nevertheless, the opinion of this court is that the child should reside with the Mother only if there is some significant geographic distance between the parents. Should the Mother decide to return to live in Japan with Maree or should the Father decide to leave the north coast/northern rivers district and relocate a long way away, for instance in Adelaide, and assuming an appropriate AVO to ensure the child’s separation from the Father is in place and that the Minister is proactive in the exercise of his parental responsibility, then I think Maree would be best placed with her mother. But, absent a significant distance between mother and child on the one hand and the Father on the other and absent an appropriate AVO and the real involvement of the Minister, I think Maree’s safety could not be guaranteed and there would be an unacceptable risk of harm.

39. It is appropriate to make section 90A orders, binding on each parent, directed to the child’s safety by prohibiting any contact between Maree and her father.

40. In my opinion, those various arrangements properly deal with what would otherwise amount to an “unacceptable risk” to Maree and are in her interests. Accordingly, the orders of the court will be the following:-

1. ORDER that the child MAREE (born 2001) be in the parental responsibility of the Minister until she shall have attained the age of 18 years;

2. ORDER that parental responsibility with regard to Maree’s religious upbringing and the preservation of her cultural heritage be allocated to the Mother;

3. NOTED that in the opinion of the Children’s Court, the Minister’s placement of the said child with the Mother would be likely to expose Maree to an unacceptable risk unless there is to be a significant geographic distance between the homes of the respective parents, an AVO prohibiting the Father’s contact to the child is put in place and the Minister is pro-active in exercising his parental responsibility;

4. ORDER pursuant to section 90A that, until the said child’s eighteenth birthday, the Father be and he is prohibited by this order from having or attempting any contact to the said child, whether in person or by electronic or any other means, and from approaching the said child or approaching within 100 metres of her home or school;

5. ORDER pursuant to section 90A that, until the said child’s eighteenth birthday, the Mother be and she is prohibited by this order from permitting the Father to have contact with or to approach the said child and from failing promptly to inform the Director-General of the Department of Community Services in the event of any such attempt of the Father;

6. The applications are otherwise dismissed.